primarily if you see the judge's hand go up or you hear some other voice asking you a question that's the time for you to stop so with that said mr goldsmith we'll hear from you thank you  to afternoon mr miller has pleaded his claims here sufficiently through a rd amended complaint such that he should be permitted to go forth and discovery case should be reversed such a question before the court is whether the allegations with the benefit of inferences favoring the plaintiff here the appellant are sufficient to survive a motion to dismiss for failure to state a claim i intend to emphasize the following central points  the complaint to materials that were before the district court allege clearly that the tenant marconi miller supervisor was a stout decision maker in a discriminatory retaliatory firing process the knowledge of miller's condition and his protected of the motion as to regarded as disability for since mr miller sufficiently alleged eternity to desk pain impairment substantially limited him through his neurologic system and operation of regard to count one your failure to accommodate claim i wanted to be sure i understood the basis of your claim assume you're making a claim based on actual disability as is the same thought would apply out with respect to count three which are read to be unlawful termination based on an actual disability claim as opposed to that discuss the extent to which major life activity was affected as opposed to stating that there was a major life activity well  complaint which is substantially same as rd but presence there when you're pleading the facts you talk about an injury causing difficulties or that there is a possibility that perhaps his disability affected certain forms what i'm looking for something that's more detailed as to how it affected how long was it what was the extent of it recitation needs to be connected up to the statement of claims in order to to really get the gist of what's being alleged the  actually you have to go back to where the it's it's referring back to count two as well one hundred and eighty six when eighty five the fact predicate that mr miller suffered the injury which resulted in herniated disks surgery was possibly indicated for a while it looked like he was going to need the surgery  consisted as i went through the social complaints for the regarded as claim that the d n r would have been required to show that the impairment that i just described here was i just described were both transitory and minor in order for important if the you know to show that the defendant in this case d n r was aware of the fairness which of course they were as a lot of evidence for that and i think that's really all that used to be found in order for  that regarded claim to be sufficient and really should be reversed on that basis question's been raised about the extent of the limitations but i think that that both the statute and regulations are pretty clear that for pleading purposes the not so much needs to be shown for that that proximate timing can never be enough in itself to show a causal connection that would allow claim to go forward that's not correct at this court so decided in boyle greeting from antagonism that's going on between marconi as it's really one of it's one sided marconi's pattern of antagonistic actions toward mr miller particularly flagrant was refusing to allow him to he had complained did not receive the accommodation or what have you that those some of those individuals were actually on that committee or on the in the group of people who decided whether he should was the moving party behind the terminations because he he says he was a formal recommending official sending a letter to his period asking for the firing he then convened the disciplinary review board i'm sorry to report him st but if you w with three other officers who made that decision and two of them are sure mr miller that they didn't think he cheated on a test and one of them apparently dissented from a decision to fire him but yes it would but you say it is exactly what the record shows can i can i redirect to you from retaliation back to failure to accommodate for just one second what is the the claimant adverse employment action for failure to accommodate is that is that a chain of entrances from the firing or that you know he was released from the  program but he he claims he was tired and he was tired because he couldn't take his pain medication and eat and that was that the failure to accommodate he he was denying his pain medications and he was denied accommodations with respect to the exercises and the physical workouts that he had to do our contention is that he he was capable of forming the job with accommodation for being in the program with accommodations and those accommodations in the form the medication in the form of the exercises were denied to him repeatedly but don't you have to have in addition to that not getting that accommodation that you have to have some sort of an adverse employment action no it's no actually there are actually no at that's the essence of a reasonable accommodation claim is that the individual was denied the accommodation and so so frequently you might have where  the where the individual was still employed this is a little different was he was later terminated but in such a case where the individual still play the whole remedy might be to give him the accommodation that he was seeking so our protection is that he should be reinstated and given those accommodations and the so you can petition go to accommodate stands in itself the upper section requirement is there as to the i guess just try is a discriminatory just try to otherwise i guess i'm just wondering if if someone doesn't get an accommodation but it doesn't impact their work life at all then where's the where's the adverse action there of course and there doesn't need to be an adverse action per se for a reasonable accommodation claim like there does for a fi that basically you could divide your type cases between the ones that require an adverse action rather than a failure to accommodate and a failure to accommodate type ok so we're making both claims here both that he should have been accommodated while he was on the job and that there action in the form of a fire and i see that my time has expired before you go mr goldsmith particularly with regard to your retaliation connie would d we because you certainly set out additional facts and your nd and rd amended complaints would we need to file and that the district court erred or abused its discretion and determining that filing those amended complaints would i want to make sure i understand i i understood perhaps judge eighty to be asking if we did consider and maybe it's just the way i was looking at it if we didn't consider the court to affirm the decision of the district court of maryland for a number of reasons st and foremost with respect to count one the failure to accommodate a claim and count five which is the retaliation claim the on lawful termination retaliation claim that the questions were going to earlier mr mr wolf yes you may just be my screen but i'm only seeing you from the as a i'm sorry let me see i can help yes ok so with respect to counts one and five our position is that mr miller is quite simply failed to allege the blood for causation requirement that is that he was terminated but for his request for accommodation and that that argument really emanates from the fact that there is no allegation that the persons he alleges were responsible or knew about his requests asian actually made the decision to terminate him he makes allegations regarding corporal haunt corporal back with lieutenant marconi that he made requests for accommodations those individuals have various specifically a paragraph twenty six dollars in the st amended complaint but what is noticeably missing is any allegation that they actually made the decision to terminate him converse lee there is no allegation that  show at this states which is just a reasonable inference of causations rather than actually putting them to the proof of making the private basic case at this point well i think it goes to failure to state  claim certainly with respect to the fact that he fails to allege that the persons who may have been aware of his request for accommodation were actually responsible or had any part in his terminations there's blood for causation established in the allegations of the complaint and that's really the point we're trying to make here and and so i guess my point is he doesn't have to establish the but for causation at this stage he just needs a reasonable inference of causation well and i think that's what our position is that's completely lacking i mean if he simply made a request shouldn't we be considering the most recently amended version of the complaint if the district court rules about futility then it's a legal question for us whether even the thir to be clear the nd a minute complaint actually all three complaints raise this issue of terminations and who the requests for accommodation were made to in fact if you go back to the st met a complaint their allegations regarding the requests for accommodation were made to with respect to the nd amount of complaint mr miller attaches his e e o c file in an effort to bolster his claims and so at that point it became an issue of us trying to rebut those claims in the point out that look this is not a individual with a disability for a number of reasons once because he has a substantial he has an alleged that he substantially limited any major life activity because all three of the alleged injuries are nothing more than short term impairments that aren't sufficiently severe to even be considered a disability moreover one that counts one in three is supposed to counts four and five well i think it goes i think it goes to all three of these judge because in count one he's alleging a failure to accommodate based on his alleged disability count three in a lawful terminations based on mr miller's alleged disability count for discriminatory terminations based on a perceived alleged disability and count five unlawful termination based on mr miller's alleged protected activity of the requests for accommodations offered see regard to his disability you have different standards and if you were a claim of actual disability right that's i would agree with that your honor now with respect to the account for the regarded as disability all that relates to injuries last well last then one month in other words w i would i would assert your honor that based on the case law the regarded as definition of disability does not apply to impairments that are transitory and minor so it's our position that he would need to actually plead these regarded as elements they are but the follow up judge the acars question is it's not a question of does that limitation apply but at what stage of the proceedings in here were on a motion to dismiss so i thought i'm not understanding why the plaintiff would need to plead a rebuttal of an affirmative defense that has yet to be asserted in  minor with an actual expected to ration of less than six months all three injuries are pled in the st nd and rd amended complaint as lasting well less than six months in fact the st to be alleged neck injury last no more than twenty three dollars days and twenty six dollars days respectively he's cleared to return to full duty that's why all three complaints fail as a matter of law all to state a claim with respect to disability whether you look at it as actual this is the only record of such impairment or being regarded as a stable the last ledge injury of the cervical the herniated disc rather he simply alleges that he tells his classmates he thinks he has herniated disc and that he may need to have surgery in the near future that's all we have out of i mean this is a complete case about a failure to state a claim without a doubt and i think that's why it made the job for the district court so easy in addition to the fact that it's not a case about fail retaliation this is a person that actually admits to cheating on an exam he admits to being caught on the exam and he admits to being terminated for cheating on an exam during his academy experience so this was an integrity violation integrity violation that goes completely to whether or not he is capable of being a natural resources police officer and he's shown that he's not because he cannot perform the essential functions of the job that is to have integrity as a denominator this whole issue of the of the cheating the academic dishonesty it's not something that we raised it's something that he actually admits to in the allegations of all three complaints yes rocket does he admit to cheating or does he admit that is actually parroted in paragraph one hundred and forty four of the nd and rd amended complaints on paragraph eighty seven it says mr miller told the instructor that he had already answered some of the other questions with reference to impermissible sites and ask if you should turn in his tests so wait there he already answered some of the questions with reference to him permissible sites you can he did that but as i understand the allegations he's saying he did that not to intentionally see that because he did not understand the instructions know you're saying that your client has position is that he was cheating and that's why he was terminated but right absolutely don't read his allegations as admitting that he he cheated well i think in eighty seven he admits to using impermissible cites so if he's admitting to using impermissible sites then certainly that's academic dishonesty based on the instructions that were given if you if you back up the previous allegations council that yes you he also plead that some of the folks he talked to said that they believed him and they thought he was honest when he said that he didn't he wasn't cheating he wasn't intentionally disobeying them rol that it's this is even a relevant question quite frankly i mean i think what's really relevant here is the fact that he's failed to allege that his requests for accommodation never made it to the persons who actually made the decision colonel ziggler anybody in the chain of command i mean we taxed numerous documents to our motion to dismiss the clearly show this just didn't end with a disability review board go ahead you're on it before you leave that point let me ask you this takes you back to the point he made at the very beginning the letter from colonel ziegle reasoning for d n r as terminations mr millet says that in its opinion i brought it up we specifically brought it up because mr miller and his filings with the court made the argument that you know our did not have a which is a pregnancy discrimination case under title seven from the six circuit and the four circuit in work vs ohio casualty insurance company specifically declines to follow the klein v catholic diocese case and says that the plaintiff must show that he met the employer's legitimate job expectations to prove his promise facia case in the employer may counter with evidence to finding that expectations as well as evidence that the j a the joint appendix to forty four to sixty six the conclusions by the investigator plainly state that the respondent d n r provided a legitimate nondiscriminatory reason force decision to discharge the complainant and there's no indication that this was a case about palliation but was more about his academic dishonesty so with respect to the nd and rd amended complaints he's he's always done all that the apologies done is restate the allegations from the st amended complaint that is that these are nothing more than short term impairments that are not sufficiently severe to qualify as a disability under either the rehabilitation act or  so again the common denominator being that the alleged neck injury the alleged cervical herniation the alleged herniated disc all of which last no more than twenty six dollars days at the most are nothing more than de minimu injuries alleged in the complaint so we still just made a claim for disability in all three complaints it's a futile effort for that reason and also again for the reason that he's admitted to the cheating and to go back to the courts point like i say he does do both he admits to the cheating in the one paragraph in paragraph eighty seven but then in one hundred and eleven i think this goes to the one judge's point there that he says  eleven of the st minute complaint having not received or having misunderstood the instruction perhaps on account of being denied necessary medications and therefore being unable to sleep sufficiently mr miller did a google search to obtain the information so yes he's trying to explain away  the use of these impermissible sites by this alleged failure to accommodate but again that fails because the allegation that the allegation is going to kill you to accommodate it fails because there's no allegation that the persons who actually receive the failure circuit ruled and hence p n f c versus maryland public safety and correctional services that the state of maryland was immune from feeble claims because the state of maryland has not waived its sovereign immunity so our position i be remiss in not making the court aware of this in bringing it up at this point even though it was not specifically argued we just didn't have the benefit of this case until after we followed our brief and again that expense versus male to partner public safety and our position is that is hill if i could suggest that with respect to this last point that you made about the new case you missed your honor hor you might send the court to rule twenty eight j letter that sets that out ok one thing that stands out with with with the alleged injuries to is with respect to the st injury of the neck injury he simply alleges that he has a neck injury there's there's nothing to indicate any sort of medical neurological pain you know it's our position that he's failed to establish that he suffers from a disability because he does not allege how the neurological pain substantially limits  a major life activity and again the neurological pain is sort of added on with respect to the neck injury which is a is nothing more than a short term impairment lasting more than twenty three days before he was cleared to return to full duty  i sent a letter to colonel ziggler and it states in the last sentence i recommend that officer candidate tom miller be dismissed from the academy and his employment argument that that marconi wasn't involved when he was involved in the day to day interactions and that's all spelled out in great detail and he was the person who was denying the play this down but two of those people told mr miller that they did not believe he had cheated on the test and one of them apparently based on the documents the d n r itself generated one of them dissented from his decision to proceed with firing him now understaffed the supreme court it's clear that that a decision maker doesn't have to be the ultimate person who signed the documents saying they were firing someone a moving party can also bind th e employer that's black letter law at this point basically and so so that the attempt to to evade their own documents that they generated here fails now a related problem is counsel is saying that that over and over again that that miller emitted to cheating but as touched after correctly pointed out by questioning he didn't admit to cheating he admitted to having looked at the improper sites that he wasn't supposed to look at he missed the instructions and i want to note that if you look at the chronology  here that incident and he had passed every other test so the whole argument about it not meeting the legitimate expectations for each other was qualified as that merit but he had passed all these other tests on that day he was in the state of being denied  marconi and screwed up didn't answer the didn't follow the instructions the way they apparently were given two out of the four i met the rb didn't think he meant to cheat i'd like to depose those individuals and find out exactly what they thought exactly what they said i think that we pleaded and anough to get to that point and again that's a hunch and jackson now in addition the contention that was made toward the is a serious medical problem mr mr goldsmith the records you're referring to were those attachments to one of your complaints yes the nd amended complaint attached records  because the district court considered the apparently not because the district court just a court never acknowledged that those were there and that they what impact they might have so to the extent what diagnosis diagnoses existed what possible treatment might be needed what medications needed and prescribed all of that was there and should have been considered the up i think i'd like to to take if i have another minute here which is i see that i do i think i'd just like to to emphasize the error in the district court's futility finding and the way it handled  the additional evidence from both sides that came out that was available to the court that it claims not to considered in the way that it ultimately ruled and disposed of this case  argument in the context where futility is found because there is less sort of failure on the merits so that there's dismissal in that context two this is a this is something that should be reviewed to know court in any way i think the court fees to look at it afresh and look at the evidence that was there and is now enjoined appendix and reach its conclusion that way so for all the reasons that we've set forth here today and in our briefs we've asked the case be reversed and sent back to the trial court for discovery and also to try thank you i want to thank both counsel for their arguments today our tradition is to come down from the bench and shake hands