entered against ms why it should be reversed she was a qualified person with a disability she can demonstrate that the proffered reason for her terminations was a pretext for discrimination and she can show that she was overall fired because of her disability and with the court's permission address each of those points in turn first ms whip was a qualified person with a disability  she had an incurable disease that caused her to experience coughing and shortness of breath during unpredictable flare ups and have trouble with physical exertion states repeatedly that ms loop was never going to be able to abide by the last an admission that she was not able to perform the essential functions of the job is not she was never going to be able to abide by the very strict terms of this west chance agreement that required her not to have any more in particular call w as far as a arranging for her regular testing appointments that was perfectly fine but the one disease that she had made it impossible for her to know whether or not she was going to have a flare up she was just going to have to be able to call in to her doctor dr berger stated that that would happen two to four times per year she had these supporting you or me to the surgeon that you could do that you got points on the policy even of even if you had a doctor's note well they are now out by saying that she was accommodated for two years both flare ups and medical point but i find nothing in the record confirming that she got no points as well as time off with pay when she read whatever she would return to put it where in the record is is a listing of the flare up time off and the medical appointment times off in late two starting in over two thousand and twelve and running to january two thousand and fourteen with  recitation whether she did or did not have time off with pay it or did not get points under the policy did or did not have a medical no did or did not give advance notice that's simply not in the record is part that it may be on the record but it's not the birth and judge the particular listing that you are looking for is actually not in the summary judgment record at all the  i read it both on this point it's completely empty so this is a matter for proof and seems to me it's it's your assertion and therefore it's your proof now where where is supporting that when your client testifies oh yeah they let they accommodated me they gave me time off is not asked and does not volunteer a point the question which doesn't come up for a year or more later six corporate representatives i confirmed this with their witness ms perry men i read i read your book i read the i didn't read the deposition i read your quotes and your brief doesn't solve this problem doesn't that to me suggests strongly if she wasn't assigned points for all these flare ups in two thousand and thirteen in late two thousand and twelve or she would have had more points if every medical appointment and flare up from october two thousand and twelve until january two thousand and fourteen and earned her points despite time off with pay that would that one hundred ninety four would have understood the points right well i'm not i'm not sure that's right when she returned to work on it but why not well when she returned to work on that's not in the summary judgment record judge do you have any indication how many points were cited for flare ups or doctors appointments if any the only thing that's in the summary judgment record that would address that question was when she returned to work on october fifteenth of twenty fourteen she was given these retroactive points and i but we've they started at at six points which suggests that she had under the work act or work restrictions he did have more five point i'm not i'm not sure that that's correct judge and let me tell you why if she got this  restriction in october of twenty twelve and worked through the year of two thousand and thirteen and started incurring absences because of caring for her mother in january of two thousand and fourteen then she was gone for a year and a quarter the parties are agreed that the language of the policy is what the is what the policy language is and if someone returns with a doctor's note all that does is make you're now saying for the purposes and accommodate would be if she was accommodated that would not have been the case she would have been accommodated by permitting her to come back with a doctor's note after an unplanned flare up absence without adverse employment action and the parties have not disputed whether or not there is a undisputed that she was accommodated till january two thousand and fourteen absence which were used by doctors when she returned as opposed to before she took i think that's possible but i don't think it's  determined on the basis of the record she had if she had the five points from twenty from twenty twelve and twenty thirteen then it's it's possible that when she returned with a doctor's no she was assigned an attendance point it's certainly undisputed that when she returned to work after the october thirty two thousand and fourteen absence  she was she informed her employer that she was gone because of a flare up of her of her disability and she was nevertheless fired at that point you  she didn't until she comes to the term terminations meeting on november for she has and whispered to the employer that this was a flare up incident as she judge i don't believe there's a right or not i mean it's a yes or no and then explain why it's not pertinent question i think it's not right because who did she tell and how and when she called in to report her absence there is no competent evidence in the record that i know of that she actually reported her absence as being a vacation absence as opposed to a call in sick of the the folks who make that statement or the thirty be six witness karen richards or we get to the hearsay to i thought she testified that it well ok if my mind just said that but it wasn't it wasn't right and now all of a sudden on appeal always you can't consent or carville's evidence that she reported in as vacation because it's hearsay that it gets in the way though of us showing that there is a genuine issue of material fact we have one set of folks saying one thing we have one set of folks saying i don't think i did she's saying that she she had no intent to do it and that she doesn't think she did it but just as someone when they pick up the phone she she she concedes that it's within the realm of possibility just like when you pick up the phone and you intend to dial a number maybe you dial the wrong number she's going to say that she had no intent to do it and she doesn't think she did it this case she had a disability a pulmonary condition and she had a lot of restrictions that apply to that and in the record on joint appendix one seventy seven is our undisputed statement of facts and it says that the company fully accommodated her work schedule restrictions as well as the obligation to provide a clean environment likewise the company fully accommodated her need to attend medical appointments as well as her need to miss work due to flare ups of her condition in response to that the plaintiff qualified lead admitted it and said defendant fully accommodated her work restrictions her need to attend medical formants as well as her need to miss work due to flare ups there is no evidence on the record that she was ever disciplined treated adversely for whenever she requested and needed time off work for her pulmonary points that's right judge and there is a chart in the record relating to her attendance record that starts at the joint appendix fifty eight and it's actually on fifty seven it starts terminate her and when she was terminated on november fourth she had miss work on october thirtieth and from the company's standpoint you have to evaluate which i believe you indicated judge loken when you look at the company's decision to terminate you evaluated at the time it was  made and there is absolutely no evidence in the record that suggests when the company made the decision to terminate her that they had any evidence that she was requesting an accommodation or there was any kind of flare up issue on october thirtieth the only evidence in the record that even supports that medical evidence is a doctor's note from february of two thousand and fourteen three months after she was fired which was it would have been two fifty fifty and i apologize she was terminated on november fourth two thousand and fourteen that no was never given to the company the note in november that she refers to was never given to the company and there's no evidence the company ever got it until this litigation started so there was never any medical evidence presented to support her absence on that october thirtieth date the case law says judge that circuit case says that when you look at the employer's decision and they have to prove pretext to overcome our legitimate reason they have to show that the company acted with an intent to discriminate not merely that the reason stated by the  don't believe it is judge i think in the record it shows that the term came well if you look at if you look at their response in the joint appendix one eighty seven to our statement of facts we state that plaintiff was issued the paperwork fourth terminating her employment and that was also when she formed that the company concluded she violated the last chance agreement with her absence they qualified lee admitted that on one eighty seven and they say that misled may have been formed that she violated the last chance agreement by calling in for  vacation at the beginning of that meeting and then later the conversation turned to or flare up so she has admitted that that was communicator at the beginning and me and where the record is important is on the vacation admission that a then then and accommodating employer even if the pre term even if the terminations papers had been prepared with step back and consider whether  i don't think it does judge and i'll tell you why i think i think the employer has the right to dictate what is required to excuse an absence for a medical reason or to request an accommodation from the company in this case the policy is very clear it says if you're going to try to come in and get a medical absence excused policy has been read the way you want it read the policy had been forgiven or overlooked for for two years i don't believe there's any evidence that  absent all right but she had she had an accommodation whether written or whether formal or informal she would be forgiven point if she had a flare up doctors  after the fact consistent with her work restrictions now that prompts the policy a must for some reason one class player a chance agreement tromped the accommodation practice judge  i think that the two things i want to point out is one first of all the policy says that if you're going to get a medical note you've got to bring it on the day you come back to work she didn't do that that's what the policy clearly says and then there are if you there may be some ambiguity in the policy but what matters is how the company forced it and whether  consistently forced against her and if a policy is ambiguous and the company doesn't enforce it adversely against a disabled employee there's no wild lation of law with respect to that part of it part of an accommodation required  o well and i understand what you're saying and i guess in this case if she was going to establish that she needed that day off to a flare up she had to provide a medical note under the policy and that's the way the policy ha i think the record does address how the company handled that and there was a affidavit or there was some testimony offered by karen richards and the way the policy wasn't forced and then we find that reference for you is the companies under the company's point system you call in you push a button and that tells you what the absence is if the company the company is not going to set your point if it's ethanol a if it's a protective leave or an approved leave if you push the button and it's a reason for the company to give you a point they're going to give you that point in order to remove that point you've got to come in and bring in some kind of verification to excuse it that's the way the policy was applied and that's the way the policies is generally interpreted to be by the company there was testimony by karen richards and she stated in her deposition that basically what they do is they print office call and log every day in a list the reasons for the call ins and then employees are charged a point for those call ins unless they come in with a doctor's note or something else to verify and then they go back and correct it if that happens that's the preceded her that's the practice that's the way it's always been done and that's the way it's karen richard testimony it's on joint appendix two twenty one and so that's the way it was applied so when she came in after she missed that day off and judge the record with respect to the vacation and what she requested on october thirtieth it's i think it is clear in the record what what happened on that day she pushed the vacation button she asked for a personal day and our joint appendix one eighty four our statement of fact says that when she called in to reporter absence on october thirtieth she reported the reason for absences vacation their looked at the buttons that morning and they're all the race but i remember the or is it you know we have we have documentary evidence of record we have we submitted three affidavits we submitted deposition testimony and we statements saying that's the button she pushed and that's what our records are flying and there was never any objection to that judge that was admitted into evidence and was accepted by the trial court for purposes of this motion and this case also with regard to the it's case judge that that's a good question and in this case i think the facts that apply to your question are she did have restrictions that said she's going to need to have medical appointments and she did have less restrictions and said occasionally her condition will flare up and she may need to be absent from work and again the record is clear that the company always accommodated that but in order to request an accommodation i think the law is that you have to follow what the company requires to do that and you have to put the company  notice that you're taking a day off work as an accommodation or to requesting that as an accommodation you can't just have a standing thing that says i'm going to need to miss work during flare ups and then call in and report reported as something else or just what undercounts do you just have to knowledge that that's what you're asking for is it different than the standard across your i don't believe it is i don't believe they can i don't think they're inconsistent with each other i do not believe that  with respect to the accommodation argument again i think it goes back to the circuit law that says when the decision is made to terminate that's the time and you look at any requests for accommodation came after the company made the decision to terminate and that's what the district court found and any request for an accommodation would have required her to produce a medical note to support that that was a day off she needed as an accommodation and again we didn't get any medical notes the medical notes were not given at all before this case was filed and she never substantiated that which is what the company requires under its policy and as a matter of practice and she acknowledges that's what she was required to do and she never did so for purposes of this case we believe that when you look at the company's decision and if you look at the whole factual background of this case this is not a company that defies logic and common sense to suggest this company discriminates against people because of a disability i mean they knew about her condition they fully accommodated or she admits that they gave her  a leave when she needed to care for a mother they gave her nine months off work and every one of those days was a point that could be used against her and fire and they didn't they brought her back they gave her a last chance agreement one more chance she missed another day of work within a week after that to go to a doctor's appointment they didn't counterpoint against fire at that point this is a company and when she did that's when she was told that she was being terminated at that time and she didn't have the medical know which she clearly understood in her in her testimony she acknowledged she understood that she needed medical note to excused absences for any medical reason and the policy says you got to bring in on your day back she didn't have it she didn't produce it later she never produced it until this case was filed thank you very much for your time i would request the court to affirm the district court's decision on summary judgment thank you judge on the question of accommodation and when she asked for it it was understood certainly no later than october twenty fourth of two thousand and twelve that she accommodation and it was a standing request for an accommodation an accommodation that the employer does not suggest was anything other than a perfectly reasonable accommodation they've said many times in many different ways in this case if they were very happy to provide that accommodation to her until november fourth when they did not provide that accommodation to her the other thing on the subject of how she actually reported the vacation briefly states that really all that's required is for the employee to make it known that an accommodation is needed in some way and she certainly did that from this very specific note from dr berger and and she certainly renewed that request as of the october fifteenth twenty fourteen when she's having this west chance meeting they told her no more call wins no more awaits no more weaver always nothing like that and she says no wait i've got this doctor's appointment because of my incurable lung disease and they permitted her that one that one that one appointment but she's renewing in that meeting you know how is web certainly raised the concern about the appointment that she had with her doctor and so the company was aware that she had this incurable lung disease and that she was going to require additional accommodation for th and then what proceeds and it's got anything in the record you know miss perry men had been her supervisor both before and after and so she was she was aware i mean this is a this is a company with a lot of employees obviously but she was specifically aware about this specific employee that i would say is on that issue about the discovery issue with regard to what evidence was there that she called in for vacation there was a recording that was produced in discovery the recording as you might imagine from a pushbutton system is a series of beeps so the recording doesn't actually tell you anything and it's this ms richard said that there was that they get a print down of what of what those beeps are supposed to say that apparently was not preserved because it was