thank you very much your honor given my limited time i'd like to focus on just two claims that were adjudicated as part of a summary judgment motion and those are the failure to accommodate d claims as well as the age discrimination claim and i'll begin with failure to accommodate the accommodation request that issue of course is mischief and it is request to work four hours per day for about six weeks and november and december two thousand and sixteen due to the brain injury that he  suffered earlier that year and that request was denied by abbott and granting summary judgment the district court relied on two items of evidence i'd like to discuss the st is an email from m on reasonable and as stated in our reply you agree there were only talking about the four hour a day request is that the only issue in your mind is to accommodation correct your honor yes  directed him so in a clearance note to return full time because abbott had refused to accommodate that restriction and that email is in volume six of the record as age sixteen and ninety five additionally that abbott's own documents of record of interactive discussion confirms the fact that they had refused to accommodate mr panetta after that restriction at the time their reasoning was because working full time one evidence i just walked through so i think there's a dispute there on the other thing that there is a lot of emphasis on is that his doctor then said he that he can come back and of saying when he was he can come back and and   think what's important here is that that doctor's note was the pained and submitted in early december after abbott had initially and already refused to accommodate mr bennett is restriction and it is our position that the failure to accommodate the liability for that triggers upon their refusal as you your honor pointed out that doctor's note was only submitted in response only in response to that their denial so  accurate commendations what on reasonable yes your honor the testimony from mr panetta brinkley in his deposition he testified that he did not disagree with the note and the reason  that is as we've been talking about that he felt it was needed for inthe return to work so why terminations the reasons he felt what was provided some was insufficient was because the original doctor's note said he needed six weeks of part time work as opposed to just two and which kind of leads me into my my next argument as to the speed issue here abas at the trial court level abbott primarily relied upon the fact that they could not accommodate him because working full time was an essential function on appeal they more or less abandon that argument but what's important is that in evaluating whether full time was an essential function  submit any actual evidence establishing that it was an essential function to the contrary we have mr panetta job description as a regional account manager as well as abbott's record of interactive discussion which enumerate the essential functions from their perspective and neither of those two documents was full time as an essential function missed it mr taneja acknowledged that he was  wilson when presented with the documents i just mentioned at a deposition she testified that she has no explanation for why granting mr panetta four hours per day as for six netanyahu didn't not make or any effort to extend his accommodation as december st two thousand and sixteen approached and instead he provided the stress or mental disability it's the physical disability from the fall and in september i think it was yes there are those earlier disabilities which are on a just mentioned were earlier that year and i don't believe the into that next and just for the record we do concede that the native sorry that abbott has satisfied its burden under the mcdonnell douglas and they have proffered illegitimate business reasons justifying termination so now the and for at least two years thereafter mr panetta earned excellent performance reviews and was specifically commended for a strong performance in that very area which is again selling to  sea level executives and i think the question of whether after twenty one years of service beginning in two thousand and fourteen mr panetta forgot how to do his job or whether he was subjected to age corporate culture ages i'm as well a subject is army to evidence which is significant here we have for me two witnesses two of which directly reported the same supervisors but all of them confirmed as they approached their early to mid fift after having worked at the company for a long time they were suddenly subjected to bad performance reviews three of them were fired one resigned only only one of these individuals  and what's important about this evidence is these four witnesses submitted the record contrary deprivations with abbott which directly contradicted their testimony that they had provided to our office your honor that is correct that evidence is not in the record and again i think you'd an isolation it could be very persuasive here as cited in our reply brief that requirement of equal of or inferior one as well as the her son with department of social services case both concluded that there need not be a showing of equal or inferior qualifications by the replacement as a prime official level and from my reading of the case all that requirement also testified that mr callus had specifically told her to manage out a thirty year employed by the name of roger castle and that there was no basis for doing so there was nothing wrong with this performance and then the strict house while up with her as far as i think the court should review both explorations and as your honor pointed out they are almost directly quote contradictory and that's why we cannot have summary judgment granted in this case i believe the jury needs to  denied her nd application her nd declaration with regard to what was really an accusation of the jury misconduct was actually and never relied on and it just recording there you're bringing it up again when it was essentially agreed to story that she was essentially fooled into signing this her soon no your honor it was not and i'll submit to the core i don't believe that we have an obligation to rebut that the summary judgment level we summary judgment she signs a contrary declaration and she only the paragraph your honor just referenced as far as the that she indicated to the attorney that she wanted something changed and it wasn't changed that only relates to one part of her initial declaration what i mentioned about manage and got mr castle however she contradicts the entire st declaration and there's no explanation for that there's no allegation of any kind of being tricked into signing other parts of redecoration which is what i don't believe that i would submit that there are there's just a factual dispute there and i believe them over my time your honor so i think it's important to start with the fact that i think some of what he was saying has the analysis backwards he was already doing that the accommodation that mr panetta asked for was reasonable that's not the question here at the of say as we note in our brief a company is not required to adopt the best accommodation or the accommodation that the individual asks for the only question is did we provide an accommodation and is there a dispute a fact that should go to the jury about whether that accommodation was reasonable i think the st answer that st part of that is yes we did provide an accommodation we did not require him to work eight hours per day apart coming back we gave him or our per day deposition testimony at one point he said i was threatened with terminations but then when he's asked further about it he backed down on that assertion and i actually started that they simply said that they needed and i quote quote she said they need an employee that is working eight hours a day december st he was asked did they say that you would be terminated he said basically i'd be terminated well what they said was they needed an employee you can work eight hours per day so st of all your i don't think there is a dispute but i don't frankly think it matters which is really my nd answer we gave him the two weeks and there was nothing in the record from which a jury could draw the reasonable inferen that starting on december st he needed more he needed that for four hours per day there's the only thing he points to for that if he suggests that the doctors nd doctors know what to answer is st he says the st doctor's transitional they are subject to discussion and reasonable changes so the st note doesn't establish that he needed six weeks of four hours per day and then he comes back with   nd note that says that he's able to work eight hours per state starting december st the only alleged disputed issue there is mr panetta serving that the doctor lied but in his deposition testimony he admits question here is is there any evidence on the record that says that he needed more than you know he needed a four hour per day starting on december st at ten and there just isn't anything in there if you may other than his  ald assertion again the doctor's note from december says that he was able to work that period of time and there's nothing that contradicts the doctor's no there's no affidavit for example from the doctor that's in the record that says that you know she felt compelled to lie for him the doctors know it stands on its own and even out your honour's even in their briefs he does not contend that there was that having to work eight hours per day from december st on was impeding him from doing his job and that's the standard for whether something is reasonable the scott case says a chosen accommodation is reasonable if it enables the employee to perform the essential function of the job so that's really the question is or to speed a fact as to the result in us of the two weeks that we gave him your honor even if we think that there is no dispute that he was able to come back in two weeks and discuss it again but i think even without that there's nothing from which a jury could conclude that our combination was not reasonable as the age discrimination we think you hadn't made the sets up the inquiry by saying you know this this person have the right degrees and the right number of years of experience and so on and once you replaced by somebody who is not in the protected class pretty much period that's how i've always seen that use your honor i don't dispute that the standard for prima facia is low and i think we could simply turn to the pretext question as the district court ultimately did i think it's equally straightforward to look at the pretext question i think the problem for mr panetta there is that the standard that's required to show a pretext is specific and substantial evidence that's what the collings case from this court says  in other cases godwin that says there has to be sustained specific and substantial evidence that the company's stated reason is not believable that it's not that it's all worthy of credence and the californian worth  that the california courts are set the stronger the employees showing is the stronger his evidence must be and so i think the difficulty is given the vast array and different kinds of evidence that we have here which is both objective and subjective you are you did point out that there are subjective evaluation but there's also objective sales data as we pointed out from twenty million one hundred and forty two thousand and fifteen that has him last or near last at least below average amongst his peer group there's therefore they weren't counted even becomes for some technical reasons well his argument is that the there was a cutoff point right at some point they they came up with the numbers and that the after that point would have raised them up but that would be captured of course in the next round of evaluations and in the next round of evaluations he was still up last or near last the thing about this is it's all relative these are it's not just the  objective numbers it's a comparison to where he stands amongst his peers and your honor the in twenty million one hundred and forty two thousand and fifteen it's very clear that he was ten or eleven dollars twelve cents in many of these objective metrics but then in addition to that there is the three evaluations of your yes some of it is subjective but it's three independent successive supervisors there was also the votes at the talent review management meetings by people who were not as and we had supervisors where right i'm not working with the right yes your honor they are not people who are working with him and i say there's there's a review there's discussion amongst the team sales managers about about his performance but then again as i said there's also the complaints from three subordinates that talk about his lack of leadership his inability to make connections with clients and i think the real point here is your honor that there is a vast array of independen evidence and so for him to show that that reason was not credible he's got to show that as he himself admits in a series that everyone was in august that all or most of this evidence is not credible because everyone was in it and that's what he says he says that there was a calculated there were also armin's criticisms and a calculated plan to fire him and i don't think that the evidence that he mismanages contention that he was assessed on the basis of subjective criteria should be close to scrutinized because subjective criteria lend themselves to discriminate the discriminatory abuse think that is exactly right there are cases that say that subjective criticism needs to be viewed closely but i think as as the case is also say and as mr panetta says the question here as in any case about pretest looking at the entire record right and you have to put yes there is a subjective evidence but one in in some of these cases that he points out the sandel case for example it's one supervisor who had one  his explanations are never incorporated in the criticisms keep getting carried forward and carried forward in caring for it is that a fair description your honor i think that when you look at the evaluations there are there are things where there is recapping of what's happened before but i think you also your honor there's there's also continual addition to that talks about things that happened within the answered without accounting for is answer your honor i think the that they even if there is stuff that's repeated there's new there are new additions right so for example in january of all the way through this one seems to me i hear the performance calls included and i d understand it was in ninety three dollars days getting kaiser to buy if he submitted a reasonable answer to that and that was changed i think if you were to want to attribute discriminatory intent that would have been some of the you know you would think someone would have kept the same but i think the other thing to remember is again it's it's not just himself where he says that there are places where he needed needed to do better and again to your honor come back you know to the the the objective sales numbers which don't change and and there's always going to have to be a cut off there is always going to have to cut off where you determine here are the numbers that we're going to put into the evaluations if there are things that happen later in the year that will of course the you know we be taken into account in the next time around how do you respond to look at that as an argument that a violated its internal policies at least four times by failing to report his discrimination allegations and those that show pretext your honor i don't think it does a nd there's two answers to that one of the factual answer is that he only points to one instance in which there is an alleged violation of abbott's policies that's the july two thousand and fifteen complaint that he made to his supervisor at the time mr weiss he says he made that complaint and that under abbott's policies there should have been an investigation and there wasn't he does not point to any violation of abbott's policies in the three subsequent investigations he think the question again is that you've got to put all this in context and of value with the entire record those investigations were done by someone employee relations who was not part of the decision making person not yes  that fifty five age is this early special retirement and that's not an argument they raise below and so there's no record as to whether they certainly have suggested that part of the motivation was that once people hit age fifty they look for reasons to get out so they wouldn't have to pay the pension the fifty five dollars that that's certainly part of the theory and i'd just want to know is does this abradatas the pension terminate right to the pension terminated age fifty five you're on again i  that was not developed in the record below as to his qualification for the early special retirement that we're talking about but he did he is drawing his pension now he was not terminate until january th seen they make a big deal out of the fifty five year age deadline but in from the time that he went on the performance improvement plan he was given to medical leave and then and that performance improvement plan was restarted it's not as if the st time he he this came up because it was before the city for earth where he was terminated he was given more opportunities every time through the p r p restarted and was was coached in with even these chances to improve his performance the performance improvement plan that went in started in january twenty twentieth's sixteen is when the process starts what's on the record and all that happened your honor before he went on leave before he made any official complaints t today our argument on the prima facia case is is turns mostly on the competence which is something that we or i don't know you got up today as well as in your brain and said that there was nothing in the record about whether this person tha reflected yet in the records therefore we couldn't we couldn't see exactly what the sales numbers were in two thousand and fifteen mr panay to achieve ninety and ninety percent of excuse me he achieved ninety percent and ninety seven percent of two different sales goals hardly i think you can say that's not performing well and he was ranked nd out of twelve nationally in retail sales that's at volume six pages  sixty two and well i believe that for the for the so the two out of twelve is for the national sales the eleven out of twelve is for regional or per local sales that's a different metric and in two thousand and sixteen yes the sales numbers were lower but as he explained in his response to the performance through they were only lower because of quote medical setback he was out on leave for a significant chunk of that year therefore to use that issue him multiple tests or i should say reissued the same tip multiple times but there's two things with that the st is they only did that because they had to under the law it was the can't be expected to fulfill paper acquirements while he's not working and secondly the last tip as a result of which he was fired if they'd never let him finish that hip he was about half way through a little more than halfway through when missed and recommend that he be fired files that he needed to in order to drive sales and perform his job and he felt all of that was essentially setting him up for failure so other than the runway tom and is there any which the district court relevance you're on it's not a promotion case the relevance of that is it shows that they're using age even if it's true that you have a short runway as you get older but they're now using age to make employment decisions about promotion and that demonstrates bias and