you would have to hunch over to argue can you hear me now thank you jeff taylor counsel for the appellant just a few facts that i'll bring up that are relevant to the ris claim as well as the eighty eight dollars claim that show pretext is prior to his terminations he enjoyed eighteen years of service he has a chemical engineering degree he has a master's he every review until he got a new supervisor was meter exceeds through the years at the time of his separation the department was organized he was living and working in the bartlesville o promotion he receipt approx the year before he got the new supervisor what is important is he was a salaried exempt professional there was no time keeping for him  to him for attendance she claimed that he was coming in late or she lives in houston no time keeping but is there any really any dispute about that i mean i understand he got a new supervisor so things might have changed she might have been a little stricter but is there really any dispute that he had been coming in late his hours have been irregular and is there any dispute that he eventually didn't show up for his review of the nine am in houston with the supervisor didn't show up till one didn't have any reason also didn't bring  briefly he had sworn testimony from that the business unit that says that his separation it was filled in houston he even identified for the plan administrator name of the person that got his job talking about his performance the one where the disputes about the performance issue i don't know it determination they slipped in performance at the sheet that was handed to me it said you're being let go for  violation of the may warning which i think it's undisputed he didn't violate it but they said also performance he's did you say it's undisputed he did not violate it the main warning yes the you know the only dispute i've heard would be hi showing up late in houston for admitted peer review while he also didn't show up the day before in bartlesville right i think that's into skewed yes your honor that's in dispute i believe so i think that i think i think they expected him to be at work that day i don't know if if it's important or not they're saying that the warning was because you're not showing up at work by nine o'clock well and you need to tell me if you're not going to be there and so two days houston either nine o'clock or one o'clock he got the phone call at the at the hotel and say were you i'm waiting on my review come on up it came on up that's that's my understanding what transpired that from may until july as far as any time he was not advising when he was not going to be at the office or taking leave or not showing up before and after nine years at the dispute that's not disputed the severance plan administrator denied the  to challenge a derisive denial the record lex evidence supporting the justification for terminations the committee failed to respond to plain just requests for information the committee ignores evidence getting into whether or not he was properly terminated for cause and do you think that's something that's relevant in the your wrists case at all or are we looking at whether or not he was laid off and received a notice of layoff the i believe it's relevant here in that the the phillips sixty six dollars plan is saying that he was terminated for cause right and because of that because he was registered in the system is terminated for cause we're not going to look at any other evidence submitted provided by the plight of because your wrists or the airplane prevents us from doing that yeah that's what that's what the administrator alternately said in the nd go around the findings an issue to remain an issue i'm sorry i was going to say isn't it perhaps because the plan the st time around apparently did look beyond just these basic facts and looked at some of these disputed facts and look like maybe the district court kind of took that lead and then said well you didn't look at an up or you didn't you need to look at some of these points and then on we man the plan said well we didn't do it right the  st time what we should have done was just look at the strict language of the plan which talks about needing a qualifying condition and not having a disqualifying condition and so the nd time  around it's my understanding that if they did it was insufficient for a for to satisfy the judge that it was not arbitrary capricious i don't know specifically what evidence they looked at  yes ok and so that decision is based on the in ministre toure's decision that your client could not comply with the requirements under the plan to be intitled t severance pay and one dollar requirement was a written notice of layoff and he also was disqualified because he was listed as having been terminated for cause would you requirement under the plan to receive severance and the way the plan is written you have to receive a notice of layoff well it's only i mean it can only be enforced the way it's written right i understand  in the st go round review it the st was around isn't really before us ok i mean you know we're looking here the the order that's being appealed unless i'm confused about something is the denial of benefits under the plan if if if the company is allowed to not it should also lay off and that disqualifies an employee i think that's a violation of a recess i think the plan is an obligation to result in consistenc exists in the record and that would be where the not a nose of layoffs should have been issued and i know you don't want to go back to the st reason but the court somehow excused the play and not issuing a no so layoff were said in the original ruling he's not the team in part of bill that your client was in charge of was simply one other employee right it was michelle tarter yes ma'am mr ok and she never moved to houston did she know they reassigned her in bartlesville yeah right she went to a different apartment so given that there were only two employees there's no evidence that either one of them were terminated and she went on the turn of the leave and according to her testimony the position that she applied for in houston was well before this term a nation and she didn't get the position is that clarified briefing on the plaintiff made it as far as additional showing on it proceed disability correct to the briefing the idea of minutes don't require what was briefed to the court found regarded as impairment  are that this decision came afterwards well did you even i mean if you look at the district court record it doesn't appear that anyone was even aware when you're arguing to the district court that the statute had been amended you're judge that that you didn't have to prove causation twice the know because does this decision came after the court's order so you know that this decision didn't exist my understanding so we did not even without the decision you didn't argue the statutory language that the decision relies on we argued the problem face a case the elements and pretend it's on the prior version  prong still requires cause ation right the under for guarded as yet you still have to show causation right so how is i mean i'm not sure how i and i don't understand why you say the lewis case really the rd prong like in this case the courts say we didn't show the rd prong because we didn't show causation even though i think we briefed it in had the facts for the lewis case said that's an unnecessary showing you don't have to show causation when you show the st prong regarded him as having a disability and how have you shown that that there regarding him as having a disability holtzman only resulted in his discharge  was to the reasons they say which was performance based well i think it's the facts on the accusations of drug use and suspension involuntarily and come back for a week of work i understand all that happen but that doesn't by itself are you saying the temporal proximity by itself establishes conservation plus case law that says implausibilities on a stated reason for terminations they are not believable not credible can show pretty pretext also such as what i was getting into  statement facts thank you thank you coun supervisor obviously in this job became in his as she was a supervisor she received a number of complaints and concerns raised by individuals who actually worked with mr mann well that these complaints were apparently  the supervisor identified several individuals who expressed concerns about his performance related to his attendance mike secret was one he also submit an affidavit david motley was another fara rajab it was another individual michele tarter she testified ron riles also provided information to a supervisor so wasn't just this letter and by the way this letter was from in our inner office mail wasn't something that was mailed the post office this came through th sixty six company so in when this relationship started this continued from two thousand and fourteen to two thousand and fifteen so what happened was there was a meeting with him initially in two thousand and fourteen with a discussion about spuri and one of the things that's been in the briefs that i think is important to understand this this position plaintiff talks as if he is his job he could do it anywhere and there are parts of that job we could do it at home we could work in some other locations but he was also needed to be in the office when necessary to talk to stakeholders because this pyramid team work with individuals outside of pyramid might see for example it is one of those individuals so you need to be there to collaborate to talk to these individual he had questions also one of the concerns was as a as part of the procurement group there he needed to be able to demonstrate to others that look i'm on the job i'm here i'm taking care of matters this is the transcript of the categories he's below expectations there were discussions with him about his performance and relates to specifically to attendance there was the made two hundred and twelve thousand and fifteen written warning which is found in the report to work that ship was on july th and what the record reveals is that after conversations with his supervisor specifically talking about him showing up to work being there before nine o'clock on july th the day before he's supposed to be down for review he doesn't show up at the office this is reported to her july th he's supposed to be at the office he's supposed to be at the headquarters and used to be shows up in houston the night before he gets a hotel room does not show up that next morning there e mails in the record from his supervisor on july th saying where are you why don't you hear he also didn't turn in his review now she needed that review in order for her to do her part of the review and i think something that needs to be brought up and was a little disturbing that i noticed in the reply brief was that there was a comment that that performance room agreement for two thousand and fifteen show that he was meeting expectations the one that inserted those those provisions that was from his part of the review that were those were not his supervisors comments so my point is is that going all the way up to july th we had issues we had issues with regard to his performance those issues were discussed and they were ongoing and for him not to show up on july th at the headquarters when he supposed to be there for review is pretty disturbing now obviously when he showed up that afternoon the record reflects that he appeared to speech and setting in there was reason for them to be concerned about that and and actually i think what they did was what you expect any employee to do in that circumstance if they have a drug testing policy minute that he was concerned that there was some maybe something else going on and he took him off work for a while so you see his doctor and waited until he returned and by the way there is no evidence at all that he had any type of a disability that he was receiving any type of medication or that he was under the pollutes of any particular drug we came back they addressed these performance issues with him at that time and he was terminated because of those performance issues and if we look at the record if we look at the august th two thousand and fifteen term letter which is in the record at page three hundred and seventy two we can see specifically it goes back to these issues that had that a rose before july th and we're continuing throughout his employment under her supervision so when we looked at this situation from the a d a s in terms of his claim not big when counsel got up here we're talking about the process a case and what he never ever put any evidence on that show there was any causation and that is required even assuming if he was able to demonstrate that he had a regarded as disability and there's no evidence really of that you are not at all well they  they regarded him as unfit in some way did they not well i answer haps disabled well i don't know if that time to think if in the employment situation we had someone stumbling into your office and there could be a couple of there could be a number of things going on and i think what they did was they said what's happening with this individual need to figure this out because we're talking about real time what's happening at that particular time and that's why with through this process of they took him off by the way he was compensated entire time he was off of work but i think that also all the tests were negative and all the tests were negative and he and his own doctor gave him a clean bill of health said nothing's wrong have been absolutely and i but despite getting cleared for this i mean his position is that now i had a stigma because you regarded me as disabled whether for addiction or a brain tumor that had been found something you does that you'd regarded me as not being capable anymore performing my job and that the real reason you terminated me where you are i i understand that but i think when you look at the circumstances here if this was a situation where we didn't have these issues that were going on well before july th well before the time that he went to his doctor and went to dr parse and saw him we might be having a difference but two thousand and sixteen decision there's discussion about in situations where you do are able to demonstrate regarded as you still have to demonstrate that it's more than just transitory and minor and i raised this issue raised below and for the district court but in that decision maybe a decision this circuit noted that a transitory impairment is an impairment with an actual expected ration of six months or less but you've been certainly phillips didn't treat it as transitory or minor and he gave the guy leave in that sense and required him to have all kinds of testing so so from i mean i'm not sure they have a cut trance story mine are based on philip's own reaction to it not talking about a substantial period of time so i can write no i don't here isn't really a fact question though the transitory and minor and i understand the adair opinion and i was on that panel but isn't that a fact question because it depends on what they  regarded him as what disability they were regarding him as having st of all you'd have to prove the regarded as but let's say that they regarded him as being addicted or having an addiction to either drugs or alcohol generally an addiction is not a temporary situation it's not a minor situation and it may fluctuate over time so perhaps that's a fact issue as to whether they regarded him as having  push back a little bit on that he comes back to work after he's all his drug tests are naked and after his doctor gives him full bill and al and he comes in and the h r director is in his office saying come clean come clean you need to come clean with us that doesn't sound i mean that sounds like they still regarded him as somehow hiding his addiction well i i do think that if you have a situation where someone displayed what he was displaying at that particular time and i think the record fl dr parsons for example that is possible to be under the influence of drugs and you know tests or i think they were trying to figure out if there was something going on with him and i think he answered the question no and we're done with that and i i was outside of the here i don't know but my point is is that we the there is no evidence at all in the record and yes philip sixty six did inquire they try to find out what's going on but there's no evidence that they used that information against him in any way which i think led me to looking at that issue and looking at the risks of piece of this would you agree that the phillips plan operates under a conflict of interest but there's no evidence that their reviews for example related to or but were somehow connected to whether or not they approved or disapproved disability benefits there's no indication in the record at all that there is any type of reason why that committee or that particular plan administrator would have a incentive to actually make a decision that was adverse to mr manna other than what i know we want his ugly in order to avoid review don't we typically require that the plan impose precautionary measures to see that the company employees are not making decisions to benefit the company well  i yes i think that there's no such precautionary measures here well i think there's nothing in the record with regard to whether or not the in the individuals who are making the decisions were somehow biased because they had some  standard of review when i think under ten circuit i think we did in our in our brief in kind of pointed out at least in front of the judge kern that there are factors you look at and one of them is of course you look at i think there is there  different factors you look at in this case two of the factors applied and that of course it was came from the general finds of philip sixty six dollars that's one factor of course sean or the other one was of course that you could have a situation where individuals who are benefits committee on remand recognize that its prior reliance on irrelevant facts which were the disputed facts about his term a nation was improper under the express terms of the plant why is an arbitrary to the st go around look at look at the disputed facts as your basis for denying severance and then when the district court says well that you didn't quite do enough here on remain and say well we shouldn't ever look at those facts in the st place we should a looked at the strict language of the plan and i understand that's what you did and i'm not sure that's what his argument is but why isn't that arbitrary but i think that we change your rationale well i think for courts and for planet ministries where you a minute we have to go with the plan and the plan we can expand the plan we why didn't they go with the plan the st time surely be understood the language of the plan the st i went on that would been the easy way to do it well i you know that may have been the way to go you honor but i think at the end of the it was in fact terminations or costs with the records and so again you know you we have to follow the plan that's what we did that i think the latest determination by the benefits committee was correct because they did fall that plan so thank you