and i would like to me the first to admit that when we're dealing with allegations that a doctor may have mental health conditions we have to tread very carefully and of course we want to make sure that all of our medical practitioners are safe and nothing that appellant is arguing runs contrary to either of those principles but what we would argue is that that careful to go both ways and that's precisely because high stakes nature of the allegations in this case that courts can not be an outcome driven in cases like this which is what and this case was decided on summary judgment and so the question ted dagne is not whether the plaintiff wins the question is really just whether he gets his day in court whether he gets to plead his case to a jury and what their case is saying under both federal law and washington state law is that the threshold for surviving summary judgment for a plaintiff in an employment discrimination case like th are very very low and there is a wealth of information in the record related to that for example after the first meeting with the plaintiff's doctor and deploy who is one of the defendants in the case nine days later wrote an e mail saying i'm mean first ask you about what i think was called the red flag incident and that's where he left one of the patients up at the hospital when that patient needed here why why wasn't that in itself sufficient to show that he wasn't doing says factory work terms of prime fishing case that's a good question and i'm sure when is there any dispute that that the timing of that occurred that he did leave the hospital and he left the base i believe that there there is a dispute from doctrinaire and balanced perspective about the particular facts in that incident but i think what's actually more important is that and that's not actually why and hospital represents it that it terminated doctrinaire america and that's what's sort of an interesting about the record here is that there are a lot of assertions about performance reviews among other things which are counter and in numerous places by countervailing about you a sense of his performance by other doctors and hospital and also some of these incidents like the red flag incident but what the respondents say in their papers it may be but as you pointed out there are multiple elements and it does go towards respond and didn't respond he wasn't even on the premises at the time but but but let's get to the element that you raise which is the terminations based on perceived disagree with the let's assume that  there was a perceived disability i thought the evidence seemed fairly clear that he was terminated because he didn't comply with the referral would seem pretty reasonable there's cause for concern  can take steps to to determine whether he is fit for this position especially the sensitivity of the nature of the position as you pointed out so what material so i think that's a good question and i think the phrase in the question is if there is cause for concern and i think this case comes down to whether the cons for concern was legitimate and for example a countervailing fact in the record is reconcile and there doesn't appear to be any evidence of demonstrated behavior that would suggest psychiatric concerns nor was there evidence to his missing in action on more than one occasion i mean that's is not normal conduct of an employee alone or doctor so it seems to me you have a legal issue that you need to address and that is one doctor might think well maybe we don't need a psychological evaluation or one might think we do but the circuits that have address this have indicated that simply referring someone for an evaluation doesn't establish that you were regarded as disabled under the  i'm wondering if the position you're taking would require us really to occasion a circuit split if we were to go your way because we're not if if you can't refer someone simply because you have some concern because claim then you know you're basically and kind of a circular position as an employer so in your view as a matter of law is there some problem if you refer an employee for a psychological evaluation i think there's two points in response to that answer one is that evidence in this case that the plaintiff both regarded as having a disability is actually not based on their just a referral it's open it's based on numerous comments at the hospital prior to their work so you but then let's answer the fundamental question so in your view the referral itself is not ground for saying that there is and a claim well that for that purpose isn't that discrimination regarded as it's not necessarily the basis for that there is a separate claim related  improper referral for a medical examination and that i think is not so much in dispute on the facts because i don't i think i have to concede that the law says you can under appropriate circumstances for her from a medical billing horton whatever the third of the claim is because i mean that's about what he was supposed to do but he did ultimately comply with what they said which was to go to pine grove and they did a full evaluation which is the sealed excerpts of record in this case which did not diagnose him with anything but nonetheless order an inpatient treatment and it was on the basis of that disagreement that he did not follow through with it and patient treatment because he's not been diagnosed with any think he's in time to make his own decision well what they told me to do is nonsense because i'm not suffering from that disability right i don't have to follow through that's my that's my own judgment and i washington positions health program west hinted but the information provided by the hospital and for example the washington physicians home program said that they decided what to do with him b kaplan who's the c e o of the hospital he wrote him a lengthy letter explaining his position and his perspective on things and did not receive a response and i actually think going to that  were more credible and if not for us to second guess the oath judgments as well i think and the allegation is that those judgments were based on discriminatory information and discriminatory assumptions about whether he had a disability then it is up to this court to second guess them and for you to prevail we would have to find that there was a legitimate cause for concern that triggered the referral right that's how you get to the pretax is that the referral itself was not problematic because if there's a legitimate cause for concern employer can do that and then if there's failure to basically follow through and cooperate the employer can terminate based on that so for you to standard is here and so what the what the court wants her consent and tshwane was that we're not even talking about a preponderance of the evidence standard to survive on summary judgment it's de minimus what he has to show and i think if you look at the evidence in the record his three experts who said he didn't have a disability the doctors at the hospital who are calling into question this referral the numerous other doctors who said among other you know one doctor said he was the best president i'd work with this year another good morning your honor is i'm paula lehmann of davis right here on behalf of the respondents and with me this morning is michael reiss my co counsel at counsel table i wanted to start by pointing out that this case the core of this case is really about two alleged adverse actions and i think you've got it you've already hit it right on the head the first one is the referral to the washington physician health program was that referral lawful the record shows that it was not only lawful it was not discriminatory once you assess that decision i think that really governance the next question which is was the decision to remove him from the residency program lawful nondiscriminatory the answer to that is also yes because once he does the refer once he doesn't comply with the referral he clearly has been insubordinate he was told in the mandatory referral that if he did not comply with it his residency would be terminated and that's exactly what happened  referral the standard for that has already been articulated which is an employer's entitled to send an employee for an evaluation when it is job related and business necessity in this case there could be nothing that's more job related or necessary than assuring that a resident a first year resident just out of medical school meets the statutory standard of being able to take care of patients with a reasonable degree of skill and safety how does the allegation that the comments around in that referral about the narcissistic personality the substance abuse and maybe worse are regarded are shown as regarding him as having a disability how does that figure into this statutory right to refer someone so the statutory right comes from is not only a right it's a mandatory obligation for a residency program a hospital or even an individual provider who has concerns that another physician may be impaired that's a statutory standard if that's the concern and that concern arose not from consistently bad performance but from erratic reform and so you would expect to see some a valuation zx that are good and you would expect to see others that are not it was the failure to consistently perform at the level necessary to ensure a safe patient care that led to the decision to refer him to w p h but it all rolls back into it based on the argument that's made by the doctors council which is that underlying this referral is really this view that there's you know that he's got a disability and that this perception colors everything so what what does the hospital say about that all right so and i think your honor that you actually captured that in your questions to dr norvel as counsel and that is any time that you refer someone for testing it's triggered by a concern about performance and in this case dr de boy was concerned about his performance and he speculated maybe it's a health condition maybe it's a mental condition maybe it's something else but those concerns are natural and part of the process of referring someone for a test but it is not unlawful discrimination to do so the law is clear provided the referral is predicated on job related business assessing the both are here that is not discrimination is not regarded as discrimination  i know you're trying in effect to bootstrap if it's permissible to make the referral and therefore he then goes to the health assessment that doesn't answer does it whether he has to comply say does he have to comply with anything that is recommended how do you or is that a factual question so let me back up and say the what happened here is that he was given a mandatory referral to come back within a doris month that he was fit for duty i guess or a no and if you didn't comply with that process then his residency was in jeopardy that was a direction that was given to him what the law says is if you have observed this erratic behavior then you have to do something you have two choices you can send him to the department of licensing for disciplinary action or you can refer him to an entity such as w p h p for assessment that is the choice that the program made which i would point out was the most advantageous choice for doctrine of that law because it's a confidential start the right licensing right you don't start that you simply it's a confidential assessment  if he is deemed fit for duty comes back to the residency done so that's what they did here but in doing that that is not a disk and i'm not i'm not trying to bootstrap i'm really trying to understand in answer what you're asking me that is not unlawful discrimination it may be that doctor the boy again thought that he could have some sort of a disability or a mental issue but the driving for the referral is the erratic behavior any employer may speculate about what's causing that for example if he had shown up for work covered in iraq they might have referred him for a test and thought maybe he has a contagious disease that mi not might not be accurate but that's what the law requires and so once though the assessment is made that he's not fit to come back at that point and in the hospital view that it's basically in a safe harbor position if if the decision is he's not safe to come back then the hospital's view is he can he is removed from the residency program because it's a licensure issue right and i don't think you should lose sight of that if he's not deemed it reasonably you know can practicing medicine with a result degree of skill and safety he isn't licensed anymore his contract his residency contract which is in the record requires a valid washington license  if two of the three are met and one is not he has a supremacy shit case has to rest on all three things one is a perceived disability one is qualified and i will get back to that in a minute and the  people the primary and i did and i believe is indeed the sole evidence of the perceived disability is the july email from dr de boy to his supervisor and there he says he's recounting conversation he had with the dean of the medical school you might be narcissistic you know he might have substance abuse which may or may not be a disability we don't know the answer to that there aren't enough that i mean if he had had substance abuse problem it could be a disability or it might not give  well of himself or his self focused not as a diagnosis of a psychiatric disorder but i think it's possible that there is a disorder that is narcissism so i think he has the  though i don't believe that he has i understand that that e mails on the record i'm not disputing it but i don't believe that that's sufficient to show perceived disability but even assuming it was if you move to the second factor which qualified there is absolutely no dispute dr nerve l a does not dispute that he did not follow through with the p h p his license has expired he isn't able to get a license in washington state and that was determined by the board of medical quality assurance based on these events to some extent i actually know if you read the quack decision the board was very careful to not rest its decisions on the disputed evaluations from the residency program but instead relied on the testimony of really four key people one of whom was dr o'connell who is was a counselor he had a virginia mason but the others are the two individuals at w p h p who assessed him and then the others were the physicians at pine grove who also did an assessment but when i think he said something earlier that when they came back from that assessment and he refused to comply with their recommendations at that point he wasn't qualified because it wasn't a license physician but there'd been no decision at that point correct so let's look at the timeline because that's really important so he was sent to p h p in february he had two sessions but they did refer him out to pine grove where he had several options he ceased communicating with p h p which is what led them in march month later to report him to the licensing permanent in in october of two thousand and twelve but his license and his contract expired in july of two thousand and twelve before he was removed from the program remember a resident he had no license to practice that is correct that is for the origin so on the second play element your position is that it's not an uncontroversial fact that the plan for the qualified individual right that is now what about the third that he wouldn't terminated right because of disability something like that i again go back and i think your honour's made the argument probably better than i did with opposing counsel but he wasn't terminated because of the disputed performance within the program he was terminated because he didn't comply with the instruction to go and cooperate with w p h p it's that simple he could have had perfect performance evaluations and he still would have been terminated for the insubordination of not going through that process and not providing them with the requisite information they needed in order to return him to the program so that he could practice medicine i'm not sure the relation graduated from medical school he's an empty right he's in a special program under a one year contract as a resident which has different licensing requirements and different expectations for how you practice medicine particularly  employee well the cases on that are really interesting that it's a mixed blend in some aspects he's an employee and others he's a student and it's an education program to teach him how to transition from book learning to practical learning with patience the limited license he has only allows him to practice under direct supervision of another physician so he's not a staff ization he doesn't have his own staff privileges germination with being were the student or a resident position in that one the a residency program or he was germinated from that program interestingly enough his contract had already lapsed he was on a leave of absence during this period of time so when you look at the documentation the record you'll see the way the program characterized it was that he was removed from a participant in the residency program but his contract had already left theirs and whatever whatever happened to them with his license was done by the state board correct yes  virginia mason had no role in that in fact was even unaware of many of these issues until later in the fall in that timeframe because dr nerve that law had instructed to p h p to not communicate with even came up at the grievance hearing but when i really like to focus on it bringing us back to the question of why isn't that good or whether it was qualified whether he held a license  yes there was no but the timing in this case was a little bit odd but the question is you can't be a practicing physician without a license right right the  medical board proceedings had not really gotten underway at that point so it was sent it didn't come up at the grievance hearing and it was certainly never asserted as a basis for his terminations that the license had expired but when i and i'd also like to bring it back to of disputed facts here i believe this record reince like it was the best of times it was the worst of times there are people who said that he was a problem there are just as many people who said he would he did perfectly fine or even exceptionally exceptionally pine grove report even said there was a market inconsistency in the reports about him that's set by e r it was councils actual point it was erratic and consistent sort of as another analogy at the basis of a small snowball and as that snowball went downhill and accumulated more math it picked up steam and at some point it just became unstoppable and i would recommend to the court to read dr roberts testimony from the agreements hearing he's had for a iar six ninety four to seven zero five he was a senior resident in the thoracic surgery department and i think has a very good analysis of what happened here and how it was unfair to doct