we are now going to move to the final case of the morning this is appeal number nineteen dash two thousand four hundred and twenty mccann versus badger mining corp we're going to begin with counsel for the appell mr reinhart who has reserved three minutes for a bond surrender good morning my name is pete rinehart and i represent the point of appellant ray mccann in this case this case involves two issues under the her disability as to the gifts issue of disability the district court in its decision did not make a determination on this issue can contends that she meets the definition of disability because she was regarded as being disabled and have had or had an actual disability the facts that support this are as follows in september of two thousand and fifteen ms mccann was diagnosed as suffering from degenerative arthritis in both hands degenerative arthritis is a permanent and d generative condition her symptoms started in december of two thousand and fourteen and the condition and her symptoms continued through the date of her s judgment responses in two thousand and nineteen badger mining was well aware of ms mccann's medical conditions and how the medical conditions affected her and ms mccann's degenerative arthritis substantially limited ability to perform manual tasks to write and to drive badger mining has argued that ms mccann was not disabled because her condition was transitory and minor which  is true that that is a defense to be regarded as prong of the disability already the court made clear in silk versus board of trustees the employer has the burden of proof on this issue and badger mining simply not provided any evidence to meet its burden of proof the evidence in the record indicates that the cans degenerative arthritis was not transitory and minor to the contrary it is permanent and progressivism vacated laws clear that it's an objective standard and not a subjective stance turning to the issue of causation at summary judgment ms mccann proceeding under the or t s method of proof and provided facts in the record and arguments indicating that pretext and suspicious timing established causation with respect to pretax this case does not involve an honest mistake or a good faith belief by the employer in dreamily detailed instructions and constant guidance from readers the facts on the record are disputed and indicate that ms mccann never refused to perform batch mrs mixing tasks at all in fact she performed batch miss mixing task alone on the night shift where she did not ask any questions because there know there was no one to ask and she successfully did that and her batches were used and there's no evidence on the record of any issues  problems with the batch is she next that reason was changed during the course of this litigation from refusing to mix batches without details directions to difficulty learning batch making mixing responsibilities which we have argued is a shifting and inconsistent consistent reason but regardless that's also not true as previously stated she didn't have difficulty she perform the task alone on night shift without asking any questions and she successfully perform them the nd reason given by the edge of mining to select ms mccann for layoff was that she was not able to self direct and troubleshoot on the fly and with respect to that reason this is a case where actions speak louder than words and may have two thousand and fifteen ms mccann went to the night shift where she worked alone because of harassment by a coworker mr cole wall she worked there until the time of  layoffs and you know november of two thousand and fifteen she didn't have any supervision on the night shift and she didn't have anybody to ask questions on the night shift in fact when she went on the night shift she wasn't included in regular meetings of the r and d department because of her night shift hours position where she didn't have any support couldn't ask any questions of working alone if she could not self directed troubleshoot on the fly the rd reason that has been provided by badger mining for the selection of was retained and the evidence in the record which i don't believe is disputed is that he had significant issues with team fit in temperament he had a history of anger issues resulting in discipline and counseling that included issues in two  resulted in his mccann resulting resulted in her moving from the regular day ship to the night shift so if team fit and criteria were actually a reason  sure and that that is a that is an accurate statement by my opposing counsel he did have this experience but my point is slightly different badger mining is arguing that this was an important factor in a reason mccann was chosen and my point is if that was actually if that actor that was used in determining layoffs then then mr even though you had the experience you would have been chosen and that shows that that's not a stand alone factor it's not a factor that would justify ms mccann's terminations in and of itself and that gets me to the issue of ortiz and what meaning it has with respect to pretext and i know my time is getting short but i'd like to briefly address that the district court found that ms mccann was required to establish pretext as to each and every reason that was stated by the edge of mining for its layoff decision employee still required established pretext as to each and every reason they would seem to me that requiring that would defeat the purpose of ortiz to avoid putting evidence into different piles and in addition it would provide an incentive for an employer the pylon multiple reasons for discharged making it impossible for an employee to successfully contest each reason but regardless of ortiz there is case law in the  each and every reason if the stated reason is not a stand alone reason to justify terminations that again that is in the russell case although i think i gave you the wrong cage fight on that but it isn't the case and in fact the court one so far as to say if the reasons are so intertwined or the pretext of all major one reason is so fishy and suspicious then the then those other reasons can do not have to court is whether or not ms mccann ultimately provided sufficient evidence to prove her eighty eight dollars claim specifically that but for her alleged hand her wrist issues she would not have been one of the thirty three dollars people that b in october of two thousand and fifteen for a reduction in force to two it's difficult business conditions we believe that the answer that question is absolutely no the judge peterson correctly decided that based upon the undisputed evidence there are two issues before the court as you know as attorney reinhard pointed out the st is whether or not ms mccann had a disability and the nd is whether there's any evidence to prove it but for her hand condition she would have been discharged again the answer on both of those is no the court unfortunately did the district court judge peterson chose not to address the issue of disability we think that it's valuable and important that the court consider that and we think that because this is a really unusual case one in which the plaintiff is alleging that she suffered from an impairment as required to be a da when in fact she had no work restrictions she could perform her job she had no inability to work she herself at the time of the decision of the reduction in force stated that her hands were feeling great so this is a case simply where the doctors all agree that she st saw any doctor for any of her hand or wrist conditions in september of two thousand and fifteen she saw three doctors between then in october when the reduction in force was made each of those three doctors concluded that she had no restrictions that she was able to work that she had no limitations as it relates to gripping or repetitive activities or fine manipulation and that she could perform all of those activities further and this is a situation where the the  the the court the court ultimately decided not to go ahead and decide that issue but this is a case in which attorney ryan howard has asserted that the limitations that ms mccann suffered were ones which really relate to recreational activities and did not actually amount to substantial limitations in any way and we cited the cases which support the fact that recreational activities such as crocheting or painting or knitting is not by itself a limitation in a major life activity and although ms mccann had some limitations in her ability to drive in the sense that she had to take breaks after driving or or that she could cut her lawn but i did take breaks while doing that she again was not precluded from doing that i was in no court and service certainly has not found that such limitations are light related to an impairment of a major life activity and we would point at this point in particular the court's decision in silk the board of trustees that's a case where the plaintiffs allege that she was discharged to the plaintiffs alleged that the plaintiffs had been had been refused to work as a result of a perceived disability and specifically what the plaintiff alleged was that he he was a teacher at the school district he had a triple bypass surgery that he was required to undergo in the fall of the of the year in which the decision was made and as a result of that he missed some work he missed some work  t he missed he missed some work in the spring and then in the in the summer of that that year the college decided not to go ahead and provide him with any courses and the court looked at the question about well has he proved a perceived disability as it relates to the fact that this is someone who had heart surgery and was gone from work and the court specifically said that in that case the employee had not been able to establish that in fact the  school district regarded him as disabled but rather what it regarded him as was absent and therefore there was no perceive disability as it relates to the district's decision in the summer of that year not to give him any courses the court then distinguish that perceive disability finding as it relates to the only part of the case was survive summary judgment and that related to the courses that were assigned to that plaintiff in the fall of that year in the fall of that year rather than getting as usual for courses the district only assigned him to and what the court said it was in that case there is a potential perceived disability because in that case the employer specifically said it was alleged to have said that they didn't assign the plaintiff the case because we didn't think he was physically capable of handling them and in fact as of that point the plaintiff had received a release to or return to full work so if you look at what the court did in silk it clearly distinguish between when one can establish a perceived disability and not in the summer courses because the person was absent the course specifically said even though the employer knew about the fact that he had a heart surgery and that he was off of work it didn't perceive him as being disabled the same thing holds true here when we look at this case it's a situation where where ms mccann again had no no restrictions whatsoever all of her doctors thought she was fine she herself in october of two thousand and fifteen informed the court  inform the employer that everything was fine and she was feeling great and in fact the only thing that the m's we understood about her hand her wrist condition is that she may need some time off of work that's all and as a result of that she simply cannot meet the standard to establish either that she had an actual or perceived disability or that bajor mining perceive that she did it again we would focus the court's attention on the sill case the big problem in the disability context of this case is if if in fact ms mccann is able to establish a disability based on these facts it puts employers in a situation where all they would need to know is simply that an employee had seen a doctor if an employer had seen a doctor and diet and was diagnosed with a condition under the argument that mr mccann is making she would be disabled that can't be what the what the law is it's not what the what the cases suggested is not what the court in silk suggested it was and if the court is is to find that a case like this can establish a perceived disability then i'm afraid that almost all cases will be a perceived disability case if in fact an employee has ever seen a doctor separate and apart from the question of whether or not there was any disability we we also have the issue of whether or not she can prove that but for her hand condition she would have been discharged judge got her as you pointed out the the better mining in this case looked at four different factors one of the factors was what was the critical functions that were needed within the department this this or indeed department mr cornwall was one of the people that could perform these essential functions these critical functions he was the conduct of any expert and as a result when ms grant and ms brita were making the decision about there are indeed apartment as to who would stay they determined that he had to stay because he was the expert and ms mccann does not dispute that he articulated forward for specific reasons for that including batch missed her or her difficulty in batch mixing the fact that she wasn't self directed or could could work on the fly on her own her temperament in team fit and and and  as a result of all of those ultimately determined that she was the individual that would leave again look at this in the context of what happened it was a reduction in force so as a result of that it wasn't a situation where badger mining was was saying that ms mccann couldn't perform the job it was saying we have to find the best people we have to continue to work and to continue to perform this work in the midst of difficult business situations kind of like what's happening now and as a result of that it had document all of these reasons in fact they were documented in her to thirteen in two thousand and fourteen evaluations the company specifically addressed these issues about her or her failure to work without direction on her difficulty and being a team player the conflict that she was having with other workers and specifically as it relates to the batch mit's mixing issues one of the things that i think support for the court to understand is that judge peterson said that ok maybe there's a dispute about whether or not in fact ms mccann was effective in batch missing what there is not a dispute about is that badger money didn't think she was effective and that's the ultimate question in effect there's no dispute that she didn't think she was effective because the one time that  they let her try to do it after they shortly and shortly thereafter it immediately began looking for another person to come into the apartment and perform batumi mixing duties and that confirms the fact that the company did not think she was sufficiently skilled in that particular area and as a result of that old grant inbreed the two supervisors who were considering these issues within the irony department began looking for someone else to do the job and they ultimate were recommended mr mr cauldrons was recommended by the production department and he ultimately then came into the department there's also no dispute that they had those discussions in the summer of two thousand and fifteen and that he was transferred  being expert in batch mixing there's no dispute that badger mining did not consider her to be an expert in that area and began looking immediately to find someone after they let her try it once and they didn't think that she was successful thanks for their job to do that that in time for you then thank you law especially under the eighty a and the substantial limitation language in the badger mining did not believe that ms mccann was fine and had no further problems back the day after she said she thought the cortisone injection was helping her she told two of the management employees that she thought that her hands were a problem and she thought she would need surgery it with respect to mr kolb lance there is a disputed issue  fact when it was decided he was going to be brought in but the important factor is when it was decided that he was going to be brought there was no documentation of any discussions about bringing him in until after ms mccann disclosed her hand conditions at that time he was brought in because of her hand conditions and when he was brought in and it was clear there was going to be only want need for one lab tack and that ended up being him so he was brought in to replace mccann after her disclosure of her hand conditions timing being september st he disclosed her and conditions act over sex he is brought in october night she's on the list of people to be eliminated thank you mr reinhart and thank  appreciate your advocacy judge ripple any questions for the advocates thank you judge scott or no not for me thank you the case will be taken to revise meant that is our final