himself in this is from the record at page one forty one the appendix in mr hughes correspondence to his doctor in this case referencing the his note that he obtained verbatim for what ford had instructed him to get in regard to her release to return to work mr hughton states the bad thing about it is they use the doctor's note against me they had me get the note just so they could use it against me in my opinion that just one store mr hughton and that was for him the record at twenty five mr hughton identified as congenital defect a missing left arm and hand from just below the elbow on each of ford's forms in the application process some very profound perceptions about humans disability when i suppose dr catch in her responses she states in his case it's pretty obvious he can't do certain tasks so that needs to be or believes that there is a way to just simply skirt or avoid the statute altogether if if they turn a blind eye or if they don't conduct an individualized assessment the examination went on and i ask well you said it was obvious he can't perform certain tasks or act in response was yes so what tasks is that obvious mr hughton can't perform the head of forbes medical apartment response he's missing his left upper extremity below the elbow so he has no hand so he cannot do gripping grasping fine motor tasks with the missing appendage i asked him how do you know mr hughton can't do gripping grasping with his left appendage and the response again i haven't evaluated him this would be when i say obvious it would be an assumption this was a classic perception case based on dr catches assumption dr kutch and then amended hughton medical form to state left hand no gripping and but let me ask you if i get well things i find a little confusing about this case and maybe i'm just not understanding it correctly is why is a broad as are regarded as cases supposed to mr hobson's has a disability mr putin has a disability is it because he does not consider himself disabled or he didn't ask for an accommodation i guess i'm i'm a little bit under trying to figure out why it we're talking about regarded disabled you know he's he's willing to get over the fact that he's missing an arm and fact outworks most persons and in most of the jobs these had in the past so so basically that it's because he did not conserv did not ask for ford motor company to hire him in spite of the disability or with an accommodation well so the accommodation i would respond differently in ford's forms for even asking is is there any restriction is there any problems that she would have is there any type of and i don't believe that they used the word accommodation but it's the accommodation of question and human response and says well yes i only have one hand he made the same request when he was doing the test to say you know it might be that this takes me a little longer because i only have one hand also isn't the real problem here the lack of evidence as to the inability to perform a large class of jobs as opposed to the particular job that he applied and thank you your honor and i believe and if i were to reorder my argument i'd put a point to subsection d all the way up front and say we can meet that burden we met that burden even  a oral argument before judge sachs so first and foremost the evidence is there the evidence is will show the court that the head of ford's medical apartment such as the quote that i read had this perception about and his ability she only had perception she went on and she acted on that perception the head of ford's h r department had the same perceptions if if the court looks to be regulation in this sixteen second it's also performing manual tasks and if you look at every single one of the statements from ford motor company really what they're talking about is exactly that about performing manual ta burden he can show that the head of ford's medical department had this perception he can show that the head of ford's h r had this perception he can show that there are experts this dr sprecher had this exact perception the problem that we ran into your owners was the procedure posture this case and how this case made its way here so both sides filed for summary judgment and in ford's summary judgment motion for take the exact opposite approach for time and they go on to say that he's not available for any of those positions now when we look at the case law in this regard missouri's preston on this would be the  case i found it interesting that the court looks at the very same exact thing the court that they were dealing with a police captain and the city's allegation was well he was only applying for one job it was the police captain job and so he didn't he to state a class of jobs and the missouri supreme court said no he actually did identify a class of jobs because the city was denying him employment for all of the officer positions in this word positions is exactly what we're dealing with here it was the same thing with the peterson case peterson versus ford motor company and what the court looked at again were those positions in the number of positions that this person was applying for and so the problem that we ran into is that instead of briefing these issues the issues were presented to the court simply in the format of an oral argument and if anything i would ask the court to give  us an opportunity to to take this back and to show judge facts you know i did my very best to stand up and to cite him to the record to show him dr kucha statement to show him dr kucha statement where she says there are thousands of jobs out there and he probably can't perform thousands of jobs i did my very best on the fly standing in the same position that i am now to try and identify for the court each of those positions but what we really needed was factual citations to the record we need a written briefs submitted to the court on that specific issue if that in fact was what the court was going to rule it would have given us an opportunity not only to provide these factual statements but also i discovered the peterson versus ford motor company case when researching for this appeal i believe the judge saxes determination would have been different had he been presented with the peterson case unfortunately the format that we were faced with was we were presenting our case on the critical issue simply on an oral argument both sides had had summary judgment briefs there were huge records on both sides and both sides were trying to pull from those records to try and give the court some citation but  ford the same attorneys handled the peterson case they never identified to judge stacks of that case was out there and the president likewise had they took great liberties with the record again and again and again during that argument  there's this notion of where the statement to judge sachs was well he only applied for a single position he only applied for a single position they went as far as to tell judge sachs that he never applied for a similar position he never applied for manufacturing position he only applied for a single position in this just some not the case there were seven hundred positions when i tried identifying some of those for judge sacks such as in judge and michelle sprecher she's there vocational expert going through response to every single question she said the same thing why i don't know what the job is i don't know what the function is i don't know why i can do it can't do it other then he's missing and urged she called it by manual fingering simple fact that she's changed he position should be evidence of ford's perception and enough to get over to overcome the perception element your honor so i see that i'm approaching two minutes i'd like to reserve a little time for battle if there's no question mr hooton failed to develop evidence that fourth perceived him as disabled within the meaning of the m h r a mr hinton has argued to you this morning as he did in the district court that he has an impairment and that he thinks he was treated unfairly but is the district court noted in its opinion that argument doesn't engage with the dispositive legal question and that's the question that judge pratt's of question raised earlier whether ford wrongly believed that  mr hooton impairment substantially limited him from the major life activity of working and the only major life activity discussed below with that of working mr junta never identified a different one never suggested during an hour and a half summary judgment hearing focused on this particular allegation that there were some other major life activity at issue and that is why the court ruled based on th certain toyota line of cases which have been incorporated into missouri law through the doctor a decision that someone must show evidence in this it is a hard standard to meet because it requires getting into the subjective beliefs of the employer subjective evidence that the employer understood that the plaintiffs couldn't work in a class of jobs or a broad range of jobs but i guess it seems to me that the strongest argument that the plaintiff has in that regard is this o'reilly notation that he can't do seven hundred somewhere positions why is that not a broad classification of jobs that's pretty much what peter's the peterson  there are seven hundred different essentially spot on the assembly line that it's two assembly lines f one fifty trucks and transit van and there are different positions so one position installs the right seat belt one position  belt one position and stalls the headliner but the individuals who are hired into these positions are expected to be able to rotate throughout them they have been ergonomically designed to require use of two  hands so that the repetitive activities being that have to be completed at each position can be done in a way that doesn't cause stress or injury and they have to be completed in a very short timeframe it's fifty three point five seconds on one line and eighty seconds on the other line and so what mr o'reilly looked at was whether mr hooton left hand no gripping restriction meant that he would not be capable of performing this particular entry level assembler position of which are seven hundred that's right your honor there are there are seven hundred different positions but someone who is hired into the entry level assembler position and what the general so i guess the question is is seven hundred a broadcast jobs i think the answer to that is is plainly now a nd for reasons let me explain to you and then let me also talk about peterson which you raised if you look at starting with a certain case in which the supreme court looked at whether someone could be hired as a global airline pilot and whether knew whether a being a global airline pilot was a class of jobs and said that it's not because someone could also work as a regional airline pilot they could be a copilot they could do all sorts of other things using pilot training i think that is the first indication that what we're talking about is class of jobs at a broad level and that's what this court itself has said when it looked at the a d a s in pretty two thousand and eight cases where it said we're not talking about a narrow range of jobs we're not talking about things like positions on a single moving assembly line that have been set up in a simple simple and straightforward way that is what we have here peterson as your honor suggested reached a different conclusion that peterson is of nor persuasive and i want to clear on both of those points it's not preclude stive for i think of a variety of reasons that are pretty readily apparent it was a dish different perceptions of a different decision maker involving a different assembly line in a different state and individual with a different impairment but on why it's also not persuasive the district court simply engaged in none of the analysis that is required by sutton by the murphy case from the supreme court and by other cases from this court identifying what that class of jobs language means it's a one line that says that i think the case that the district court did rely on the e work in any other position that required three points of contact which on a on a railroad there are a number of positions that fall into that category but what the staff district court held which the tenth circuit has since  that also was not a class of jobs peterson made a statement and then went on at that for other reasons to give the plaintiff a very limited remedy but that there simply wasn't the nuanced analysis that is required by and that the district court did in this case when it tried to give practical effect to what this broad class of jobs language means and i think my opposing counsel raised the doctor case i think if you look at dr e the doctor case in setting out that the individual there did have evidence that the employer perceived him as being unable to work in any law enforcement position of any rank it wasn't just that he couldn't serve as one of the many policeman who were employed by the city but that it was any law enforcement position and in a footnote the supreme court of missouri distinguished this court's decision in apps and in apps that this court had affirmed a judgment in favor of the employer who concluded that someone could that the employer perceived the individual as being unable to work as a detective but they could work in other law enforcement positions that didn't require the steam particular physical characteristics  for all of these counsel what was the record can tell you know a clarification or an explanation as to what the what the requirements of the the seven hundred jobs that were mentioned consulted with the industrial engineer who had designed these positions she consulted with the u a w representatives and confirmed what had been her impression already which was that all of these positions were not set up to accommodate someone who has a no grip in restriction so her focus was very clearly on the requirements for this little regard to hand to hand group they are all set up that's right your honor they are all set up in a way ergonomic designed to be done by someone using two hands to prevent against repetitive stress injuries because they are doing repetitive tasks in a limited period of time they do involve equipment positioning  focused on the fact that she was considering this position the entry level assembler position this section of the plant only and i think that the n s f decision aptly noted and it relies on a number of other courts that have said the same thing these perceived as disability claims particularly in states that haven't changed the law in the way that congress did change the a t f a and so the way the eighty eight applied prior to two thousand and eight are are extraordinarily difficult plaintiffs to win because it does require subjective intent showing that the employer was looking at something broader than the particular job or particular position that someone was applying for and as the b n s f decision noted it's not common for employers to do that there are cases in which employers have come up with evidence like that da tree is one of them where the the plaintiff did have evidence that the employer perceived him as being unable to work and in a whole host of law enforcement positions and but absent that evidence of subjective intent that speaks to something broader than this particular job mr patten didn't have a submissive a case the other case i'd mention in response to your honor's questions judge malloy that i think is relevant is the murphy case from the supreme court and it followed pretty closely on the heels of titan and in murphy there was an individual who was working as a mechanic for u p s and he developed high blood pressure and so he wasn't able or that the employer perceived him as being unable to get a particular health certification from the department of transportation that was needed to work in the particular  was it was it a request for a doctor's note clearing him to work or was it a note did they ask for a note stating that he couldn't they can't grip with his left hand or there are two se they had instructed him that he needed a doctor's note clearing him to work in an industrial environment and specifying what restrictions he had and miss kotch goes on to explain that that's because for doesn't want to make assumptions assumptions about what what this is a little confusing what was why was anything else required because your honor and disclosed exactly the was born without a left hand there's a distinction between an impairment and a disability and an impairment and i think everyone agrees in this case that mr hooton has an impairment and he is missing part of his left arm and his left hand but the question is what consequence does that have in a job setting and that's what for didn't want to make assumptions about and that's what the ford medical staff identify it was because he had self disclosed that they said ok we understand you have an impairment we now need something documenting what it is that we need to do or what you can do are you clear to work in this sort of industrial environment mr hooton recalls that the instructions that he received were to get a note that said he had a left hand no gripping restriction  ultimately that's really immaterial to the dispositive legal question because at most it could mean that ford perceived that the consequences were greater than they were forward perceived at the decision maker mr o'reilly perceived him as having a left hand no gripping restriction that is what she received when she received his file to review whether or not he would be made an offer of employment so that you take that as you get it the employer perception here was that he had a left handed gripping restriction now the question is did ford perceive a left handed gripping restriction whether it's right or wrong or whether there are shades of gray that should have been included but weren't  did ford perceive the lefthanded gripping restriction to be a substantial limitation on the major life activity of working and the answer to that is is no mr hoon didn't develop evidence that showed m o'reilly looked at that left handed gripping restriction and treated it as an impairment on anything broader than the qualifications to do the particular entry level assembler position for which he was applying  question regarding the retaliation is it your position the mr who did not get used in the activity protected activity that would give rise to retaliation yes your honor that's that's part of our argument i think there are there are two things mr hoot missouri human rights or so your honor i think that the key thing that the district court focused on and that really obviates the need to get into that question you've raised is whether he had any evidence of the third prong that's required which is the causal link between a request for protected activity and an adverse employment action he had no evidence that his request for a did any request for accommodation caused afford to take any particular action with his employment request that's what the district court said and mr hoon doesn't really have any response to that in his appellate brief and obviously did not raise retaliation and in his argument here so has been focused on that  he in his brief he seems to be saying that he had jacked into the request to get a doctor's note with a no gripping restriction but i do want to be clear that the record does not show that he made any objection to that request somehow discriminated discriminatory and never said that he was participating in protected activity by debating what the contents of a doctor's note should say that simply wasn't something that was in the record so there is thank you your honors and i'll go first to the court's square in starting with the question as to whether or not there were any common requirements between the jobs and this was one of the problems we ran into in this case was that there's a form that ford has that requires the third party medical provider to identify that or that the job functions be identified to the third party medical provider and those were never provided in this case in fact i don't believe that they're being provided in any case if we take for  testimony is as it stands and it's that for doesn't want to know if they see somebody that is limited all they want to do is to document that limitation they don't want to know whether or not that person can actually perform the functions of the job or even perform the functions of the job with accommodation and that's one of the issues that's the thing that it would seem to struggle to me to to trying to find the matter or to say how i see the case in relation to the doctor's note in the court has this and this was actually provided the court in the form of an affidavit so not only was mr hugh told by ford's nurse patton you have his testimony saying that she said all you need to do is get a doctor's note that says you can't grip and his statement is i got the no verb eight and what four told me to get but you also have the affidavit of dr davis and this is a treating physician in missouri and dr davis is affidavit will tell you that she was friends with dr catch when she contacted dr catch she was told all the note needs to say that hughton can't grip with his left hand moving on to whether or not hughton can actually stay to claim it again during or argument some of the things that that i directed the court to were for instance in dr catches deposition testimony she states again like i said we've got thousands of jobs out there that require a variety of different movements and task to be performed and if you're missing a limb then you would not likely be able to perform certain jobs and that's from the transcript page thirty eight actually o'reilly the head of ford's h r department then goes on to say most jobs at initial thought if the court would please look at that transcript and our attempts to identify what it is about each of those positions that that it was that mr hughton could do with his particular disability and there are experts simply unable to identify a single one of your honour's we'd ask the court to send this case back to the judge sachs give us an opportunity to present these issues to