wrong because it just your court failed to properly follow the procedures for considering a summary judgment motion we believe that the district court did not construe the evidence in a light most favorable to the not moving party mr jones in this case we also believe that the district court did not draw all reasonable inferences in favor of the not moving party instead it's our contention in this case that the district court accepted as true everything that the movement in this case you see stated while discounting mr jones as evidence in this case mr jones contends that you see violated the americans with disabilities act by denying his request for reasonable accommodation mr jones as a restaurant there this he served his arrest for a therapist for thirty years at u here let me ask your question because certainly i take i think a large part of your argument maybe all of it to be that the judge judge cummings resolved fact issues with respect to whether that request accommodation was reasonable or not meeting the use of the argument but my question is this frenzy possible to review district court's order as resting on an alternative basis and that is that mr jones was offered an alternative position where the oxygen tanks would have been do not agree that that was a basis for the summary judgment i think on that issue we're talking about pretext and terminations and and i'm not sure i mean would you agree with me that that obviously the the defendant is required to offer reasonable accommodation under the law but the accommodation does not have to be the one that's requested by the plane is that the law that is correct ok so wouldn't an alternative position be reasonable accommodation will turn position where the oxygen tank whether it's bulky or not would just would be an issue i do not believe it would be a reasonable combination to have a person changes job or changes career he was a respiratory therapist and for him to all of a sudden having no other position within the business that's not rest of this i think would be the heart of the discrimination case forcing him to change his job when he can't perform the essential functions of his job with it is accommodation well that is that is the record let me ask you this is the record uncontested that at some point during this process that contested mr jones put forth in his declaration that he applied for a number of jobs at u m c and he was not he was not granted interviews he was not given any of those declaration i believe that he was and i could be wrong on that but my he did testify and he put in his declaration that he did apply for a number of jobs within the department or within the university that he was not allowed to pursue but i think again my point on a disability cases are you know adding you change your career is not would not be a reasonable tom anation  unless the employer can establish that it be an undue burden on its business and i think the evidence in this case clearly shows that mr jones asked for multiple times a result of commendation to be allowed to use of portable oxygen  discriminatory just charge lame and there's a failure to reason or common those are two different lines right that is correct however i do believe that the dish charge in this particular case would go to the about it if you go to the issue of damages on the reasonable accommodation games no other words i know that the district court in this case applied just terminations pretext argument as a basis for decision i believe the district court was wrong to do that i don't think pretext applies in this case because this is a just this is a case that involves direct evidence of discrimination yes of course aware that under the american disabilities act the denial of a reasonable accommodation request constitutes discrimination under under that act you're we're dealing with again i think it seems like what you're saying is that we don't get to the burned shifting framework here with respect to the  issue that is correct i don't believe we should because i believe there is direct evidence of discrimination and witness to her direct evidence of discrimination where the outs are yet there is direct evidence of discrimination therefore we don't reach this shifting burdens well under the american visibilities act the denial of a reasonable accommodation constitutes discrimination under the act therefore just by denying it and they knowledge that they denied it i may say it was in a new burden or und hardship but there that is direct evidence of discrimination just the simple denial of his request when i mean that's why i asked whether the two separate claims because i have as i understood it maybe i'm wrong that there is a claim that he was not given reason accommodation i get that and there was a claim that he was discharged on a war because of his disability and the response to that is no he was discharged for a non discriminatory reason case and as i did the response to the motion for summary judgment preparing for the appeal i believe that they should be part of the same claim however i do also believe that it is that under the shifting burden alice's i believe that there was sufficient evidence of adverse employment action you know you are not a reasonable accommodation he felt like he was forced to resign and ultimately he was fired they had a legitimate nondiscriminatory reason he gazed and got seven and i believe he grounds that and i as i've gone through this process i believe that the wrongful termination is really a part of the damages of the reason accommodation however if it is considered a separate claim i believe there is sufficient evidence in this case that is correct yes that's what we need we need to look at the record and what's your best evidence that there this is a there's evidence that shows the gossiping is a c i thought you tell me but i mean i thought he admitted sure i was gossiping but lots of people gossip  involved a text message d he was off duty at the time he sent a text message he wasn't at work he was at home he was off duty he sent a text message to a former employee asking if that former employee heard that another to you can't text or communicate with former employees and i don't believe there is any i don't believe there's sufficient evidence to suggest that texting a former employee about hey did you hear that so and so got fired that february and august of the preceding year it being counsel for for gossiping wasn't a similar type of event he was on duty at the time and it said something and i don't remember exactly what it was but he did receive an acknowledge that he received counseling statement for that ok many thing to do his job he did ask them to change his schedule he didn't ask him to give them light duty he didn't ask them to give them assistance for anything on his for him to be able to do is work it in as you can see to change his duties at all he just simply asked to be allowed to use a propane tank that you would use on your gas grill we're not talking about the oxygen tanks that welders would use were on hand i mean let me ask you this so we're talking about sort of one of these portable deals that somebody can hang on their shoulder i mean like a moment of like a shoulder bag is it what it be talking about some kind of apparatus and then the nd part of my question is do i have a recollection that at some point in this scenario your client actually worked for days or some beauty with whatever the apparatus was and in the rd parties if that's the case did that terminations of that experience did that occur because of a problem on the work site or would he ended the four days or whatever it was yes or the portable device yes it hangs on your shoulder and it's like a cylinder that would hang up in front that would be the portable device mr jones is a relatively thin person if he was two thousand and thirty pounds overweight that would actually get way more than this particular device with regard to yes what he asked for the reason tom a nation in august of two thousand and sixteen initially he was allowed to finish that work week wearing the device and no there were absolutely no there were no problems with you know wearing the device and completing his work at that time he was able must my initial inclination or when i read all this was this is going to down to a dispute about how burdensome the oxygen tank device really is now i think you've got a problem because this is dealt with in summ sounds like a fact issue if that's what this case is is really all about you know i mean what's your what's your view of well there to be she's st of all i believe the issue doesn't really relate to burdensome ness complaint or or some you know only faces looks like he did for days and you know nothing happens on the other hand what's the risk that it is is a tenet we are trying to get into the employer's decision about putting a person out on the floor and landon can maintain i should hear on the floor indefinitely the fact an accident in occur in poor days doesn't mean that it's necessarily sa should be allowed to the employer in my decision if you hunt back about a common experience you don't see police officers doing their job oxygen now so i'm sorry mr jones actually i mean he testifies right that he think it would be a problem it wouldn't get in his way and that he could actually complete as to whether it would be reasonable to allow this condemnation again i suggest under the circumstances what might be reasonable for somebody pushing a wheelbarrow might not be readable for somebody may be transferred to a different position with a lower salary and maybe pain from their position they don't want what is posted occur is an interactive process between the employer and employee in just trying to get to the nub i'm not trying to chastise you but is a twenty one thousand cases same place it was in the federal appendix when you found it over the weekend it was in the same location with the breeze will file so you know it's got some give ample time to mr johnson is just a good deal of this some you are gay and you know related to the to get it to us you know ahead of time so we have time to dress it out but having said that press on i wish i have found it commendation so you brief that point we have that so in that i mean what is this this case ad differently than what you briefed on that point i believe it factually i looked for cases was asking he was or that it was an alternative holding by the district court here separate from the other claim and i may have missed exactly what your response to his question i think i'm well i was just about to get to that but i i missed it so would you restate your response to judge duncan's question about whether there was an alternative reason given by the district court in how that phrase what we have to do i do believe there's so i don't know what to make of that well the link they were talking about position before he took off time to do some rehabilitation he chose not stern thanks and he was just charge for that and is no where there is no evidence to show it was a pretext and the fact i'm certain tension why would you fire somebody from my for a disability after they  gone ahead and resigned their work at that point he chose not to pursue working with u c to find another job or another type of accommodation and since he landed  in his declaration at that time because i was not going to be allowed to work i had no choice but to give two weeks notice of my intent to resign i made a decision to resign because i did not want to be fired when my leave time expired i did not want to lose my job but i could not work without the accommodation i use that time to apply for multiple jobs if you don't see that i thought you might see my allow me to do with the portable oxygen device i was not granted an interview for any of the positions that i live for i believe that testimony by mr mr jones really least raises an issue of fact regarding the question of whether he work with you see or didn't work with you and see in order to find a new position  of those inquiries mr jones has been offered an alternative position and he had refused it do you what result then i believe that would lie believe personally that that would be an issue regarding mitigation of damages no effect is damages claim because he felt that you know he had an alternative to go to work i mean eventually worked as a nuber driver you know what would have made it you don't see that alternative position i understand just he just turned it down and i don't have any law to support that one way or the answer that question one way or the other is just my my belief in mind her patient my own personal interpretation of the a d n a on reason combination offered the position but i also understand the point that well at the time he wanted to try to rehabilitate himself and be able work at his regular position and then when he came back to work and then he was unable to do with the oxygen so he's like ok well let me take some time off you some therapy some exercise that seem to work because back to work i don't believe that each should be analyzed for taking that approach versus not except you know he wants to continue with this career that he's respect to the actual sort of dimensions of the device what we have on that in the record the device he wants to use the day we don't have the actual remeasure minutes of the c that he could do with the portable device so i think that at least raises a fact issue ok so now it's all out oh ok he worked there thirty something like the wear and tear eventually would by using the oxygen he was able to complete those full work week yeah you know i was just trying to complete the string in my head he had been at that particular so when he resigned whatever i mean i guess he didn't retire so after thirty years i mean hriday you just he quit right i mean basically is a term and a sin after thirty into the record and we'll get it decided as soon as i can so appreciate both of you in cyberspace oh as well but have a good day and we'll excuse you all right thank you and just tries thank you for all your help on this i really appreciate