their own macy's own performance evaluation indicated just prior to him disclosing that he had p t s d that he had solid meets expectations that he had a one of the highest performing stores in the district that in march and april of two thousand and fifteen his store was identified as the store of the month and that he had high performance numbers for a store that had a lot of shoplifting and other risk management activity for which he was responsible it is undisputed that  disability act amendments act of two thousand and eight signed by george w bush at the time heralded as a law that would provide protection for returning veterans with conditions just like  d provides protection for a disability just like this under our federalism the texas legislature passed the protection for disabled employees and they actually provided an even lower standard of liability of that employee only show that the disability was a motivating factor under federal law  even the us supreme court has held that the standard for showing disability discrimination age discrimination and retaliation is about four standard but under the texas statute the standard for disability discrimination is a motivating factor in addition to the evidence of his performance the overwhelming evidence of pretext in this case calls  for a question of fact a justice scalia in st mary's on a whole indicated that a fact finders disbelief of the reasons put forward by the defendant made together with the elements of the prime aphasia case sufficed to show intentional discrimination doesn't require a factual finding of discrimination but justice scalia said as early as nine hundred ninety three that it was sufficient to establish discrimination and i this case the the macy's even said page twenty seven of their brief the major problem with joe out of your performance was discovered in august and fifteen right before terminations regarding a supposed failure to follow a criminal prosecution guidelines well the problem with that is one of his subordinates that was interviewed by his supervisor  dismissed by the the district court in a failure to supposedly for any showing that macy's was aware of it but in fact macy's was aware of it at at seven seventy six the in the record record site seven seventy six another record cites little or it actually was aware of the statement that mr bennett is filed and then shortly after filing that statement he was suffer benevides a third party witness we have evidence that that third party witness shortly after providing a statement in support of mr alvey art was retaliated against and we have evidence of the p t s d condition and the legislative history is replete with references that the americans with disabilities act in the amendments are not only aimed at trying to to make sure  with disabilities every small combination but it is aimed at combating a wrong perceptions of disabled people and wrong perceptions that they can be productive employees look let's assume that you he admitted were problems and he said i need i'm not doing what i should be doing and i failed to do this i'm going to fix it i'm going to fix it and i would go back and have another meeting with him and talk about the deficiency and he would admit that there were problems and then he paralyzed document it doesn't seem to be contested that he failed to perform certain things that were required to walk through the fine jewelry stores his people weren't documenting when they had physically caught retained people w the identification in august of the supposin failure to follow a criminal prosecution deadlines as the major problem and one can infer from their own position that that is the major problem on page twenty seven of their own break that on benevides directly contradicts lillard testimony regarding that and what lillard put forth as the reason to testify so while they identify performance deficiencies going back to august of two thousand and fourteen it's not unusual in a performance evaluation for an employee to have good comments and bad comments come on he sounded pretty serious to me at least and if he's the supervisor of security and all of this exceeding a multiples of other apprehensions of a downgrade because they didn't counsel with his detectives or he he didn't decide to prosecute docket and so that was part of the problem why he couldn't get everyone prosecuted but even the mob benevides pushes back with his testimony and his statement that the weight mr miller characterized mr bennett is performance problem page twenty seven of their party so while they want to try to paint him as a bad employee and they don't take into account the fact that he had solid meets expectations evaluation in the spring of twenty fifteen he had store of the month in march and april i think he was a high performer and while he had some deficiencies according to macy's i'm worried but the serious problem wasn't until march of twenty fift and then a bit is proof that what they claim was a serious problem with little or tried to say is a serious problem just wasn't clear and from that there is at least a question of fact whether  some evidence of pretext or and the fact that the stated reason for the terminations is unworthy of credence is is to be examined in this case we've set forth and in fact the fifth circuit has held that the appropriate the appropriate private patient cases set forth in milton versus the texas department of corrections of this court that's at seven o seven s third five seven and under that  has to show that he had a disability that he suffered an adverse action that he was replaced by someone who didn't have a disability and he did that and along with the evidence of pretext which we have all been to vegas and the is under a motivating factor analysis for the the different protective categories there is some confusion in the case law and i think that confusion arises because of the difference between the texas statute which requires motivating factor analysis for disability discrimination case and the federal statute which requires a lot for test and a lot of courts because there is there's even a in the texas statute that there are to follow federal law don't take into account the difference in the language use the motivating factor language i think compels what the fifth circuit said was a prim they are moving for summary judgment it is their burden the sham affidavit doctrine is applied to has been applied to folks trying to create a question of fact but when someone is trying to dismiss joe  they certainly should be held to the same standard and not be allowed to do that with a shaman unless the court has any questions the boat addressed you should read the evidence we believe there is a number of evidence mr miller's comments that mr smith identified were race misleading ads of the term nation and he in fact was not responsible for the people maybe that have been involved in the discussion and then who actually said pull the trigger maybe one thing but who influenced the decision is that disputed know the you know the there were five twenty seven where you wrote the most serious problem surfaced in early august two thousand and fifteen now they are a team violation of the power prosecution guidelines how would you tell us to a your acknowledgement there that the most serious problem did not arise until august two thousand and fifteen undermines his just these earlier events that you're talking about almost your film wasn't discover that so he had the opportunity but he chose not to pursue it he could go to any time and ask for a resign if he felt he couldn't handle that store and there are small stores that he could have gone to in the dallas fort worth area but he one of the irving store and it's which is fine but he is that he has that obligation to go back as part of the interview process and tell them a change i lied i do need a college in terms of the  standard for gender discrimination claims in davis versus city grapevine and donaldson versus texas department of aging or disability services which we both which we cited in their brief the texas courts use the elite c standard for eliminating the possibility of any type of causal link between p t s d and starvation he wasn't able to or wasn't willing to but they were repeated and so they just think they just kept piling up on and it's you know it's unfortunate but you know we do have to consider the potential exposure and risk to the story and especially with the c prosecution guidelines it's just you just don't do it lillard and when he's confronted in mr lowered says well i've spoken to the detectives and you haven't been authorizing these criminal prosecutions he takes them he he takes him as true reminds me of my my father was a sergeant that letterman hospital in one nine hundred forty and then after pearl harbor he went to the flight could get it and he became a second lieutenant and he said i never realized as a these prosecutions and that pushes back i also think it's important that this court clear up the crime of facial standard and i just don't i think that courts have just with the courts in these employment cases trying to mechanically apply these prime aphasia cases but they don't recognize the distinction between texas law which provides a motivating factor standard in federal law that provides a but for standard with regard to eighty eight cases i think is and judge southwick pointed out in this case it doesn't really make a difference because i believe we meet either standard but i think for the bar i think it's important that that different speak leered it but finally the u s supreme court tells us in resources same person plumbing that it's really not the mechanical application of the mcdonnell douglas analysis but it's really addressing the ultimate question in this case which is is there a question of fact that alvey or is disability was a motivating factor in foley's decision to terminate i would submit to you that prior his supervisor he was a solid meets expectations supervisor part of willard being his supervisor he had store of the month and even a month after lowered becomes a supervisor he had story of the month  indicated no that's not the case we we always get approval from you remember one of the problems that al gore has a short term memory loss a fair reading of the record if he could have forgotten how do you prove th prosecutions but you don't have any information one where the other from the other detectives only what mina venus testified to were his conversations with the other detectives in those conversations were not objected to so we do have that and because there is ample evidence of that alvey r s disability was a motivating factor in the decision just a question of fact there's enough to go to the jury on this  this disability this p t s d is squarely a condition that the amendments of two thousand and eight were aimed were aimed at protecting employees from discrimination on the job and because alvey are was  good performer this is not an employee who didn't perform for macy's at least until lowered becomes a supervisor we would ask the court to reverse the lower court decision and remain the case for a