good morning and please to court and counsel mr cody's case and he's here today in the court is an important one because it gives this court an opportunity to further explain and illuminates the mcdonnell douglas and direct proof analysis in employment discrimination cases and it's a unique case because i've been unable to find any other case in our circuit where the plaintiffs performance was evaluated by the employer's o r department and was evaluated and there were instructions given to the decision makers with regard to what they should do with regard to improving this employee's performance and the decision makers disregarded the h our offices directives were not here asking the court to set as a super age our department or impose its own judgment on what performance standards should be at poet we are interested you're saying they were resources department or globe or record and said to the decision makers  admitted that the performance that was that was considered in the terminations all occurred before that p i p and undisputed that it was presented and read that the decision makers here requested that they h r department approve their request to terminate this employ and it's also undisputed that they have to follow they have to ask for permission that is part of their policy when the h r department makes a decision about it the decision makers are obligated to comply with it and they did not that when they asked if they could terminate mr codey the h r department at poet said no you must put him on a p r and in fact i think that document is probably one of the most important pieces of evidence with regard to this pretext claim because it establishes two important things that show that it is contrived and false first the timing failed to meet his employees evaluation and november of two thousand and eight and this thing wasn't issued until january of two thousand and nine for an unknown reason but more importantly and i think it is consistent specifically addresses mr cody's performance and in fact in the p i the poet itself documents these are areas of improvement brice is capable of and we are willing to provide the cody he was a general manager right and so they babe go and they present it to the h r department which they are required to do and then they issue on i'm sorry december twenty ninth two thousand and eight h r says you have to do this performance evaluation and you have to coach under their policies you have to coach for improvement and you have to try to help them and they actually set up deadlines for completion actually ever going to follow through because it's a contrivance it was a contrivance to hire an employee to commit to following a p n p and not only the employee but the decision maker was also required to do it and they admit it became a lie because they never they weren't going to do it they never intended to do it it was impossible for mr cody to meet the standards of improve all and it was impossible for them to measure them because by their own documentation they never did actually condition first of all i think it comes from the comments of his decision makers that initially there was absolutely no dispute that they accommodated mr coney's injuries they assigned him to light duty and but it's also it is a disputed issue between the parties mr cardew said that beginning in our august of two thousand and eight he began to be subject to almost daily comments from a decision maker that said what when are you going to get off what are you going to be a done with light duty we've got to get you off light duty that is not well the eighty eight does allow employers to enquire what an employee can do within their limitation there is a distinct difference with saying what can you do within your limitations versus you must do more and when when are you going to start doing more that's a very different thing and it is over the line and that is a decision maker those were not stray  kind of a no there isn't because i think the question in his case is whether the employee is disabled within the meaning of the a d a s and that it's not a disputed fact here how it happened whether it happened outside of work or a of work i agree with you employers get very highly interested in work comp claims and that has became very obvious that they lost patients because of the fact that mr cody could not improve his physical condition he did everything he could to try to keep his job your honor he went to his doctor he adjusted his medication even when he was in pain he would go ask to have his duty reassessed this was a decision made by his physician and they were aware of it and in fact there's a temporal proximity to the decision that they did when they decided that they were going to terminate him and no matter what his performance was there after it was that was at the end of december two thousand and eight on december twelfth and december eighth two thousand and eight mr cody's doctor informed both their work comp carrier and and poet the decision makers became aware of the fact that mr cody was not going to be removed from light duty service he has corporate h r department makes the decisions in this case actually one of the decision makers mr frederickson is is considered part of their corporate office because of his position as a general manager and the reason i say to address your issue before judge welcome the reason i say that he was a part of that that process but another reason that you can tell that this was a contrivance is because at the same time that they issued this they had him commit to it they sit down and sign it and the decision makers i'm self signed on like they're going to do this and then they admit they never do it they're also floating around and it's another exhibit they're floating around a timeline that they they do at it they do go meetings not the general manager but the but in conjunction with the general manager but if you look at an approval yes it's read it's and it's his agreement that he's going to abide by that p which he never intended to and did not do and that's why he said it became a lie but i also think your honor it's important to look at the timeline that's attached to the terminations letter if you notice that according to their own time which they did go at it they circulated this thing out and they took out references to his surgery and the date that he was assigned to light duty that was circulated with h r so that's how we know h r is involved in the somehow there are e mails back and forth saying here's an incident timeline and one does have to wonder why would mr cody's assignment to light duty why would his work comp status be and his surgery where would that be in his incidents about his performance  if you look at the timeline it establishes that there was no disciplinary action before his injury which occurred in june of two thousand and seven and there was no disciplinary action and no failures of performance after the p m mr frederickson was circulating around at the same time they have this pm pm they're supposed to be having this meeting these meetings they're already circulating a document that says january x x two thousand and nine terminations matter for failure to perform and that's how you know it's it's not true i would like to preserve just some little time so i jump into that i would like to address something that has been lost a bit in the narrowing of the issues here the issues have been narrowed at this point to whether poets legitimate non discriminatory reason for terminating the greve ont excuse me the appellant was a pretext for invidious disability discrimination what's been lost in that is poet's bedrock reason for terminating the appellant what's been lost is the legitimate nondiscriminatory reason for terminating him that is important because this court has said repeatedly that the burden of proof on pretext is more difficult because it must be viewed in light of the employer's justification and in this case that justification  strong i am going to jump to set forth the justification to november one two thousand and eight which is eight days after the group of the appellant completed a performance improvement plan that he was on as a result in part of performance issues and in particular the manner in which he operated that that two thousand and eight he the first performance improvement plan expires he almost loses the plant now again this is an ethanol refinery and losing the plant is not an insignificant no no no the his candor or his demeanor toward his coworkers had nothing to do with his terminations he was terminated your honor for the matter of operation of the plant on november first he almost lost the plant and in his own words he really screwed up don't know how he managed to not lose the plant should do with his discharge in fact it was the record cites our joint appendix forty three forty four fifty one fifty two and two eighty eight eighty nine all of which talk about the reasons for the discharge in fact your honor the discharge according to the file itself the the reason for discharge as stated on january twenty one two thousand and nine when he was discharged was because of his history of concerns and lack of sustained improvement in addition to the most recent operational incident dated december twenty five that incident on december twenty fifth was of the same nature once again operated the plant as his supervisor said with one foot on the gas and one foot on the pedal one foot on the brake and one foot on the pedal and in an inappropriate manner a matter which he had been coached about improving since before he injured himself in two thousand and seven in fact his very first performance review at the company said you need to slow down and i'm paraphrasing you need to not make so many adjustments to the plant but tween that first performance appraisal and the the september two thousand and eight he was coached for more times about the manner in which he was operating the plant he then went through the pip eight days after the pip had expired almost lost the plant two weeks later on nov sixteenth he's coached again you need to slow down you can't operate in this fashion you can't cause strains swings cause us to lose the plant losing an ethanol refinery is a very significant issue it not only has safety implication but had has huge production implication for the forty two employees who work at an ethanol refinery then just by that pattern once again on december twenty fifth he in his own words screwed up new firm next time if they're running i was good i won't touch them it was exactly what he had been doing and had been coached about for two years and once again he did it the record evidence is crystal clear your honor and i direct your attentions in this regard and in particular to pages two ninety to two ninety three of the joint appendix and in particular one thirty eight to one fifty three of showers deposition and here here are the information  for the first time in their reply brief they suggest that but you will know where they suggest that on pages three six and seven there are no citations to the record what happened your honor is this the incident of december twenty fifth occurred as a result of that incident the the first line manager rick shower made the decision this can't go on he is putting us at risk he continues to operate this plant with one foot on the brake and one foot on the pedal he then went to his immediate supervisors including becky pitts and dean fredrickson and said we need to let this guy go fredrickson agreed and they all also agreed we're not allowed to let anyone go without corporate approval that corporate approval was given on january twenty first and that is the day he was fired and at the same time on a separate track he was placed on a pm p or the second  an earlier performance review he scored a one point nine and per poet policy all individuals who score below a two are required to be paid placed on a pip so and you'll see the testimony when you review these pages of the record what mr shower said is we went forward with the pip because we had to the pip turned out to be a lie because we knew we warrant we we knew the terminations request was in the process we would have gone forward with the  ember problem that is correct the pm p was issued as a direct result and the deposition testimony says this as a direct result of what happened of his one point nine in his review which was given to him in november once he got that review in november it was clear they had to go forward with the pip and then the vendor report in that also one of the times where excuse me the performance review was completed was a late october october twenty third so that was right around the same time as the first pip ended but before the november first mere mess that one point nine resulted directly in the pm p which as your honor has so eloquently stated better than i can do had nothing to do with the discharge desertion nothing and the record is crystal clear about that and one fact i must clear up that was reiterated that was stated in the reply brief and has been reiterated today is that poet corporate in falls somehow did not hide the terminations request that did not happen it is true they needed to approve it and they did it i'm running low on time so i want to address one other point that council made and that relates to the comments by becky pitts about being removed from restrictions and your question or honor about how work comp  positions and restriction accommodations are related to this matter first of all very importantly this is not a reasonable accommodation case that has been conceded second this court has been careful to say and has  several times that when we look at the question of pretext we are careful to distinguish from material facts and relevant evidence straight remarks remarks by non decision makers and remarks that are not related to the decisional process because we are here on an appeal from summary judgment we are required to accept appellants claim that he was asked by becky pitts when his restrictions would be lifted even so however your honour's it was these are statements as you pointed out that are not related to the decisional process it is crystal clear he was terminated because of the manner in which he operated the plant leading twice in a less than two month period after he had just been on a pip for in part this very issue the plant the to the plant almost being lost it was as a result of that and none of these bald assertions or side issues that have been raised that he was terminated to that end i will close by by saying that his brief and reply brief are filled with with comments that they call evidence of animists comments such as the the claim bald assertion that a a fraud investigation was commenced by the plant manager over a work comp a decision over a work comp claim if you read the record your honor there was no fraud investigation commenced so when rick showers asked in his deposition are you surprised that a fraud investigation was commenced and he says yes that is not evidence of animists that is not evidence at all the legitimate nondiscriminatory reason for discharging that this employee was based in bed rock their efforts to chisel away at it are not sufficient to create genuine issues of material fact thank you your hon welcome thank you your honor i believe that i believe that our discussion here illustrates the fact that there are material in shoes of disputed fact with regard to the reason of the terminations and we don't need to amuse bald assertions you can put some hair on mr cody's arguments by simply looking comparing the date of the p n p and the timeline given in his terminations letter and you can see the terminations letter which is found at the record in the records at page four thirty two and four thirty three list is dated january twenty first two thousand and nine and says current issue twelve twenty five zero eight  the pm p is dated december twenty ninth zero eight after after the twelve twenty five incident obviously and after and there is a dispute about whether you are reading on the record as mr shower said shortly after christmas they decided to terminate mr cody and they requested permission from h r and were told they had to do the p n p first and when you  yes he was the person oh oh yes he was the decision maker at the time of the december twenty fifth incident he requested permission to terminate he was not only received the pm p but he was obligated as one of the people that was supposed to meet with and evaluate mr cody's performance it didn't happen and i can understand your honor that this is disputed facts and there are there are facts on both sides but at summary judgment  when it's a cold call and when there is a when there is evidence that suggests a lie which they admit that the pm and there's a timing issues that that make it a reasonable inf correct it is up to the jury to make that ultimate decision and for that reason we quite request that this case be reversed and remanded to the district court with instructions to set it for trial thank you very early brief