this is a case about a police officer with an exemplary track record of performance who got a zero on a performance again exam on a promotional exam that resulted in him not being promoted  police officer who fourteen months earlier received an exception exceptional rating on a performance review a police officer who got a five the last time he took this promotional exam plus to  was taken off light work after his injury and has returned to work he was on white dude he was taken off light duty in and twelve did he continue working for the city during that period if so did he continue working on regular duty or on white duty and we had a wife find the answer to that question in the record be status during that time period he was not working and was not working at all now he was not injured on duty status at the time he sat for the promotional example but your honor the reason  disability the afore no prime aphasia case right i have i have a further question b i mean i obviously want to hear what you have to say about about that george smith decision on the absence of any medical evidence at the summary judgment stage but what i want to hear is is what probative evidence there is in the record actually moved for summary judgment and we had a conference with judge smith in the sole issue was whether or not the defendants had met their burden of production under the second prong mcdonnell douglas there was no discussion about disability  mean judgment correct and it was a one paragraph he's not disabled it was not an issue in the interest of full disclosure we could have done a more comprehensive job of establishing a but i asked you a question as to in order for us to the prime aphasia case sufficient to get mr meehan seen these cases to a jury and i've asked you specifically about what i view was the second element the prime aphasia case what evidence there is in the record evidence this disability significantly limited mr man's heaney's major life and took at the end of the actual disability proud of the evidence is he was he had pending an application for accidental disability benefits that the city forced him to file and my argument is if somebody is moving or asking to be put on accidental disability because of a knee injury they necessarily are substantially limited in the major  doesn't follow particularly in a circumstance like this where that application is denied and you aren't then why would somebody file a and accidental disability application application if they were not substantially limited in the is is lifting and we have a doctor who comes in and says this man because of his injury can't lift more than ten pounds he can't he can't he can't  more than more than twenty feet he keep he can't run whatever the whatever the limitation is i think that i've looked at this record pretty carefully and i can't find in the summary judgment your response to the city statement of material facts i don't find a developed argument under the regarded as prime i find to develop  disability actual disability bronze but not on the regarded as and so i'd like you to point me to something in the record the chose that i missed him or he has to prove he has a physical impairment he had a knee injury and then it's not because because you may preserve this millions case but if you didn't make this argument then in the district court faced up and squarely then you can't make it to us that's where we're you are respectfully have we made the argument judge smith by the wrong legal standard anyway so we'd be in the same position if it doesn't matter what legal standing judge smith applied because it's they know well reviewed all right so so i take recall whether in your motion you referenced the fact that he was on io d status absolutely that was our entire argument it's all over ok but but that wasn't for the purpose of showing that he was regarded as by the city we argued he was disabled within the meaning of the law and we talked about the regarded as probably talked about the record of a disability the actual disability we focused more on the actual disabilit my recollection thank you were you answering he asked about a record of disability regarded as in the district court i think the only evidence before disability was an attempt to show an actual disability by using the self serving affidavit substantially limit these various basic life activities and there's no discussion or definition in papers of what is required on the right of the it's a different standard just like the statute statute says that  one of the major life activities is doing your job or act and we have to remember when when you bring up doing your job in jumpstarting mention that such you mean seanie work light duty for a while so there was a deposition but there was no other evidence of it it evidences evidence well it might write it might be helpful if i could explain the way the system works you only have eighteen months to file for disability pension after the injury and if you don't have any medical exams you can come back full duty during that period of time then the city can actually apply for disability rather than you doing it itself  thought what he knew what he regarded because he alone was making the decisions under the contract and how many points you get for the chief but mr mr mchugh you you you're mixing apples and oranges right completely different issue because i suspect that the evidence and pretext may be sufficiently in conflict as to create a genuine issue of material fa could the city have regarded it as a disability when they denied the disability pension he didn't get it so if you want to look at it that way from the city's point of view as an entity they didn't regard him as disabled because they turned it up after the fact decision doesn't him that's not that's that's not necessarily got anything to do with how the how the retirement board or whatever and to be passed on his disability claim regarded him and judge thompson is absolutely right that you would think logically that telling someone to apply for disability pension would be evidence that that he was regarded as disabled but the the letter in the it for you and you just confirmed that procedure it is a procedure but he he didn't on his own he had what he had time to go before that period of time ran out and we're talking about two different things for this ability i regarded as purposes it doesn't have to equal the disability it just means that your employer considered you disabled whether you have a congress as a bill disability or not right and  would it would seem to me that that what church thompson has pointed to might might very well be evidence of the police department assuming we have to take the facts as  duty so i think that the real god and the regarded as argument wasn't really fleshed out in the district court i think it was mentioned but it really wasn't fleshed but the plaintiff in this case which was relying on the actual disability pronto and i think the actual disability pronk fails to matter how you cut it have a self serve serving hearsay affidavit with the diagnosis and so are you saying we should be guarded waved to forfeit  case but there's no medical evidence to support that obviously and you know to put in a composer e affidavit this affected my life activities major life activities on the part of the plaintiff is inadmis i think the district court was right in the respect that is a cabbie got to that such as mentioned in one of the cases if someone has is missing out on or a limb you don't need medical evidence to show you need medical evidence just to say that my nee doesn't work right but i don't even know what that diagnosis is i mean in the could be a savior doesn't have to be a diagnosis it just is just my knee doesn't work right now i can't i can't do x y or z i don't think it's enough to say my knee doesn't work right i think you have to have a medical diagnosis for that kind of injury and you have any case law that says that because i my understanding of the a d a s that you don't have to have a medical diagnosis well the case is when you look at the felt in case them a second case is a causation case he did it it involves an internal condition and the question is can that cause a disability of the kind that the plane of complained about well that's not like a n sync saying my need doesn't work right as much more like the case of the fellow's got the missing arm well there's no there's no more is no evidence in this case of causation that whatever was wrong with  suggesting that some cases you don't need medical causation i'm all right if i have read the fellow with the missing out doesn't need medical evidence to show that he's limited substantially limited in the major life activity of lifting i agree but the a major difference between missing and on and having a that hurts look those are two very different things and it was we certainly don't have any evidence of causation from a knee injury causing a substantial limitation on the basic life activities either