williams this entire case comes down to whether waste management stated reason for terminating williams employment was a pretext for discrimination one of the key issues here is that the trial court failed to draw reasonable inferences and resolve all fact disputes in williams favor in response to mr williams prima fascia evidence of discrimination waste management offered a plausible nondiscriminatory explanation for that terminations saying that he failed to show up for three consecutive days in those days were what and that the decision to fire williams was already made before reported no show as a result summary judgment was inappropriate need to slow down counsel summary judgment was inappropriate and williams is entitled to have his case her before gerri under the familiar mcdonnell douglas framework williams presented a prima fashioned case of age discrimination in fact the magistrate judge and the district court judge specifically assume for purposes of deciding summary judgment motion that he made that finding even here apple e pays lip service in a footnote saying that they dispute it but there's no genuine issue that he made that he made a profession case of age discrimination we know that he was over fifty years old he was discharge motion andriy williams presented what's called a cronos form it's a form pursuant to waste management policy that says if you're unable to for whatever reason a clock in or and you don't demonstrate that you clock in to begin your shift you fill out this form you turn it in and that demonstrates that you were present mr williams presented that form in his summary judgment response specifically in response to the argument from waste management that mr williams for his scheduled shift start so by demonstrating that the basis for waste management's terminations was false a reasonable jury could infer that well but he didn't come back on the next two days either me to explain how that is justified by the fact that he thinks they weren't there to see him on the morning of the nd i think as i recall there were communication with him to come and become in boss or they even gave him and we more to come in that's right link those two together absolutely and it comes down to waste management stated policy their policy is that for three days consecutive days it's an automatic terminations and it's an objective standard based on their handbook they e mailed him on july july nd so by coming forward with evidence that the legitimate plausible basis for terminations the three consecutive no show no no call no shows was incorrect by presenting both the form of the cross form which again is pursuant to their policy as well as testifying that he spoke to someone who said that his direct supervisor mark johnson wouldn't come out to see him so there is enough evidence in the record which he presented to show that waste management fabricated this band in mn mandan job he didn't show up the evidence in the record is clear that mr williams testified that he spoke to somebody he presented this for he said your waste management reason no call no show is inaccurate now on appeal waste management's come forward with a new explanation they say well ok even if we don't even if he did show up we believe he didn't show up and that belief is a legitimate plausible nondiscriminatory basis the problem with that is they didn't make the argument below that a new litigation figment that they came up with on appeal mr williams didn't have the opportunity to develop the record on waste management argument that even assuming you showed up on the nd and you did everything it was supposed to well they may have been incorrect about that but they still had a genuine belief it wasn't pretextual genuine belief that he didn't  fulfill the three day no show policy and so there's no evidence of pretext you're saying they did not make that argument oh that's correct ok they did not and even if they did and your r v did not but even on appeal as we look at this dyno the fact is that that now incorrect belief statement is a shifting explanation and this court's jurisprudence talks specifically about how shifting explanations constitute grounds to defeat summary judgment shifted their explanation and they come forward and say well here's the incorrect belief that shifting explanation again and i would point the court to the birrell case at four hundred and eighty two dollars f thirty four dollars wait that in employers inconsistent explanations for its employment old to do your job and just briefly this is you may recall that this relates to mr williams had taken some sleep medication and he had asked for it to come in six and not for thirty during the course of that discussion his direct supervisor is alleged to have said if you're too old to do your job and to work these hours maybe you should look at a new line of work which was johnson the decision maker johnson was not the decision maker however there is case law that says that the decision made the comments were made it back up there is evidence that   nd and rd comments about his age were made in the presence of ramirez who was the original h r director who does make a decision on terminations there is case law that says and we cited it in the brief that if the decision maker if there's a proximity to the decision maker that that those age related comments can influence the decision maker and that again is sufficient to overcome some reality it remember as say that she relied on johnson to do know that there were three consecutive days no record ramirez testified to that but it would make logical sense that ramirez is going to rely on a supervisor who's going to report and say mr williams didn't show up for work and so you're you're  for example all of the comments were alleged to have made in july of two thousand and thirteen he was terminated in july of two thousand and thirteen they were made in reference to so they used mr johnson with this age discrimination commentary made in the comments were made which demonstrate the animists for the age discrimination and they raise a genuine issue of material fact on whether or not the comments were made whether they influence or protection on the determination and mr williams did enough below to overcome summary judgment on most points he showed the three comments the age related animism he showed that the basis for their terminations was false and were not by the way we're not asking the court to find that their basis was false we don't have to go that far here all we're asking is that initially came forward the nothing for a jury to infer that their basis for termination was falls that's my summary judgment was inappropriate here because mr williams said here's a form showing that your basis for terminating me was wrong i did show up and they again they never raise the issue of the incorrect belief but again even if they did that's where the shifting explanation comes in and allows a reasonable jury to infer that they're shifting explanation on that point is pretextual waste management is in there are opposition brief you waive the dismissal of the race negotiation  there is evidence of for example mr williams did testify that certain comments were made related to his age race and with respect disability he sleep is a recognized condition he testified that he was  the sleeping problems weren't there well what he said was he checked the box that says no disability he is a little inconsistent on that point does say no disability but then in the next line on the e e o c charge he says but they've regarded me as disabled and i think that the fact that he had a diagnosed sleep post traumatic stress which had ramifications honestly qualifies as a disability under the a so but he does continually want to say and does say below i can work i can do my job i'm simply asking for to start at six am rather than for thirteen and so with respect i don't believe it's waived in your have a retaliate claim here well and i think that we've demonstrated in with respect to the substance of the brief we are not pursuing the retaliation claim  primarily focusing our our briefing in particular this argument on the age related or the age discrimination claims right are you still pressing your claims under the disability in read it substantially enough to keep the pointer to convince the court that race discrimination is an issue that warrants a summary judgment reversal again i would rely on our brief i think that however lengthy it may be there's enough they are by and mr williams raised the issue sufficiently below but i would bring the court back to the fact that there is evidence in the record of race related comments there and in particular as i mentioned a minute ago  with respect to the age discrimination claims so i don't believe that the issue isn't weighed but i leave it to the court to determine whether or not there's sufficient information or evidence to support reversing summary judgment on race but one is barely a page you cited some case law then you say it's undisputed he's an african american therefore a member racial minority record is replete with examples where subjects objected to express  actually a ground upon which summary judgment that we move for summary judgment it was simply additional case law in support and in response to their allegation that he showed up to work and so to back up a little bit procedur reference or any effort to point the court to that piece of paper within the hundreds of pieces of paper that he's the middle of his appendix nor was it an argument pathetically made by mr williams in the lower court that the congress form was proof that he actually showed up to work having shown up for work that day so one response to that argument in addition to all of the the other reasons that we set for those who are summary judgment would nevertheless have been proper we said even if even assuming for the purposes of appeal that the court was wrong to find  weigh mr williams argument that he that he showed up on the nd that under the well established law in this circuit even a mistaken belief as to an employee's violation of a policy still doesn't doesn't mean that discrimination took place and that kind of leads into the shifting explanations argument why he was running late he's saying you know what you didn't make that argument to the dish record about mistaken belief yes an argument is that he didn't raise the allege is that mr williams ever actually turned that form into waste management which is would be the issue as to whether or not it is a fact is a genuine issue material fact he never asserts never alleges that he filled out that form an that form to waste management or that with measure had it had a knowledge base the minute that form i think that we said in the footnote but what happens then is they and they don't they don't lead they either they say that the this form he filled it out and it's attached to his summary judgment record it does it if he had shown up on the rd day then the reason given to fire him would be very evidently then be a fact issue as to preach yes and that's the other issue there is a fundamental misunderstanding of the actual days on which waste management is whining to say that he didn't show up there was the background of this is that he his last day of actually working at waste management was june th of two thousand and thirteen this thing went on for thirty six some odd days of them trying to work with him his demands on whether he gets an automatic truck his demands on being limited to an eight to nine hour work day he was released by his doctor to return to work with no restrictions on june th two thousand and thirteen so there was again days and days and days of the evidence in the record of undisputed that he did not even assuming let's assume that to your point that he did show up on the nd and there is no argument that waste management has that that form isn't valid or even that we make those arguments below he count the public of the th from that that was the last communication that mr williams had with anybody and waste management on the actual terminations didn't describe in three days the terminations date in the record is july th which if you count the judge the district court denied the motion to strike but that it was going to essentially consider everything and then ultimately come up with the findings that well they didn't address that specifically and say yes we think this form counts for something or no it doesn't they ultimately found that he did not have sufficient evidence of pretext which is where this case turns and so it was not stricken from the record our argument now again in response to this having been raised on appeal for the st time is that it wasn't properly under the circuit case i wasn't properly has pointed out in the record to the district court but there is no evidence that the district court ignored it they suggest or didn't know that it existed or any other any other argument particularly because we moved to strike you know other evidence and just to understand that wasn't there who waver filled or sherpas forget the purpose of this question is your argument even assuming that mr williams did show up on the mr williams because that was the policy was undisputed that no call no show for three occurrence as a result and an administrative automatic terminations in the system you type in someone's not there for three days that shuts it down there's no notice that goes out you know there  no there was no acceptance of resignation or anything that would otherwise happen to formalize the terminations of employment relationship mr williams testified that number one he had made no contact with w anybody at waste management from july th to the time he filed his the e e o c charge i would say two years later or later that year more importantly he testified and this is in the record both in his own deposition and in this testimony before the unemployment commission that he didn't even realize that he had been terminated from his employment until september of two thousand and thirteen but he had not made any effort to contact or return to work or do anything to return to work from july t thirteen to september of two thousand and thirteen so mr williams actually believed he was still employed and had not had it done everything he was supposed to do to remain employed and that there's no explanation for the multitude of days of mini many  possibility he wants his so the shifting burden responsibility is yes and make us from the fish case assuming he does that we offer our legitimate reason which we did here was no call no show he comes back and now that the courts have said that it now he has that he has to provide substantial evidence of pretext that is that the reason is false and that the real reason was discrimination he wants to relieve himself of that burden and say that the jury should decide whether the reason was johnson made these comments in front of the decision maker and wants the court to infer just based on the fact that the maker heard the comments that that was that he exert those commas had the necessary influence over the decision maker to warrant a finding of discriminatory terminations he offers no evidence of that there is no evidence no suggestion that just by virtue and there's no cases that they just because a comment is made or front of the person who makes  decision that that those comments influence the decision makers sufficiently enough to satisfy the pretext burden in a case like this and the cases that by both sides go through multiple examples of comments that were made whether by people other than the decision maker and every time the court weighs those comments that the ultimate determination comes down to whether the commas themselves can be tied to the terminations decision here there was no discretion with this exercise disciplinary violation this is not something that requires people to sort of put their heads together and decide how to handle something in this case as a matter of fact that he admitted he he stopped contacting and stopped communicating with waste management altogether the other point i want to make that that undermines any argument this congress report serves as evidence a pretext is missed what appellants did in their briefing was to hide testimony from mr williams and from mr johnson that a note was left mr williams at some point in this case claimed that he left and he showed up at work on the nd sat there for depending on which part of the record you're looking at forty five minutes three hours and when when mr johnson didn't come out and somebody said he's not going to come on and talk to you mr williams testify that he left a note for mr johnson and left mr mr and so without going into the details of mr williams testimony about that pelleas appellant suggest in their brief that that no it wasn't fact this kronos report but again they don't actually less that because the record doesn't support it they just want you to infer proper haps that this is what happened mr williams the actual testimony was that he got a a sticky note wrote mr johnson hey i'm here i'm out here i don't have any tools there's no truck for me whatever left it on his door or somewhere in his office and then went out and that in this car for some period of time and then led so even when somebody and waste management and the district court again having taken this testimony into consideration found that there was no evidence officially to rebut the legitimate reason for wasting his decision to terminate a minister administratively terminate m because a person hears a comment that may be discriminatory that that automatically by here by virtue of merely hearing it it does have influence over the person's decision in it here in this case in forcing the policy in  offer by virtue of the fact that even assuming right and giving the actual deferential treatment of all the facts in this to williams favor on summary judgment as the court is required to do even assuming all facts in his favor the  ultimate burden of proving discrimination has to be mr that burden always lies with mr williams and that proof for his a b a clay claim as one of the other claims and i want to use the because he wasn't qualified to do the job but even assuming the pretax argument stands for the case for the disability claim the district court found that he was not as they will because he pronounced that he was not disabled and deciding now to that he isn't back as they will he doesn't get to proclaim unilaterally that he set aside the disability stated he could make the claim that the company regarded him as disabled and they certainly would seem to have if they're the one saying stop working in a medical evaluation well they did and all of that happened before he was released to return to work so to the extent that they were concerned that he may have been disabled that concern want to wait on june th when he was released without restrictions to return to work from june th until his administrative terminations on july th nearly a month later they the evidence shows that they consistently worked with him to try to return him to work and have the exact same position without any changes or any additional combinations and that's what the lower court used to find that he there was no evidence that he was regarded as disabled and the case of support that as well and then on the failure to accommodate if it's a regarded as argument he's not entitled to an accommodation that's as a matter of law under the only people with actual disabilities are entitled to accommodations under that statu and then of course the argument that the section one thousand and eighty one claims have been waived in their entirety on a number of grounds but even if they were not he waived them by failing to address each independent ground of which summary judgment either could have been granted it was granted most importantly alleged protected activity and his terminations so with that we would ask that the court affirmed the summary judgment on all the  us and so that this incorrect belief is really a tension between these two doctrines that i believe the circuit could use guided through this panel because of the one hand you have a doctrine of shifting insulations which says state your reasons to why you are firing this man what the record was before the district court and that's even worse because ok i think it's a more a waiver sharing information yeah but i thought i thought accounts of the council originally said this is a waiver well i would say it's both but i would like to focus the court's attention now on what the cases talk about the shift in so they are we're not really trying this on appeal we're just looking at the summary judgment record as it existed so to say now it's shifting explanations because they are good one thing and just accorded one thing before us has no relevance to our review of a summary judgment i understand your argument but it's it's not relevant we're we just are bound by the wow that was a powerfully matter what stops employers from giving a stated reason for terminating someone and then keeping their back pocket this other reason of we had an incorrect belief the employee has no chance to develop the records to sue we stay focused on the nd as one of the three days ok and if we do you point to the coroner's report she and the age of the comments made by johnson her primary or me towards the end is none of those of was very clear that if you meet comments in the vicinity of the ultimate decision maker you cannot whitewash those comments by simply saying this wasn't the person that made the decision the person that you saying you don't do you need any other evidence