against our client the district judge specifically modified and found summary judgment on the limited determination that our client had not established that the defendant perceived her to suffer from bipolar disorder isn't that within the complaint it isn't the complaint that there was or that they perceived her are suffering from bipolar sort of it is that at that time was what was reported however the complaint does more generally state that she was discriminated against due to a perceived disability so our argument as we flush out in our brief is that in one way that the lower court erred is by limiting the analysis purely to bipolar disorder and whether they perceive as habit suffering from bipolar disorder as opposed to some other mental health disability however i will address that would mean that the complaint doesn't have to specify what the what the disability that somebody else perceived your client  in a case such as this one it would it would create it to require that the greater specificity we would put on the bird on a plane to have to know in the minds of other people and see what they perceive exactly before you go through discovery planet which was but she pled was what she was aware of which was that there was a report made alleging that she suffered from bipolar disorder and that triggered the events that led to her terminations so when she said how can a defendant defend if you just read any reference to a mental condition as covering all potential disabilities but then it variety i think they can defend it because through the course of discovery there are witnesses and the documentation then flushed out some of the findings by their doctors which were that they perceive her to suffer from panic attacks  explicitly states that my job is not to diagnose which is not what the law requires either they don't have to diagnose her they just have to perceive her as suffering from this disability and then in addition as your to the courts aware when analyzing summary judgment we have to view the facts in a light most favorable to the plaint so in reviewing the record and i'll refer the court specifically to the appendix page for thirteen which is the doctor dr marshal deposition testimony he references and his question and answers as to the symptoms of bipolar disorder what what does someone evidence when they suffer from bipolar disorder and he says two things basically he says they have the evidence hyp behavior and he goes on to state that it impacts their ability to sleep that that's very important and relevant and was frankly overlooked by the lower court because number one that is  the the symptom that he looks at when he looks for somebody who potentially suffers from bipolar disorder any perceive some interventions are from bipolar disorder but number two he referenced is the major life activity sleeping that would be impacted by that disability so then when you go to the appendix page just six hundred and three three thousand six hundred and five which is his actual memo where he determines here on fit he uses as a basis for that the termination of unfit number one he references the allegation that she suffers from bipolar disorder which in of itself should create a question of fact as to whether she was actually perceived as bipolar but even more importantly references it doesn't say perceived her to suffer from bipolar disorder and where it is more relevant is in that document is the i think i believe it is point nine where he talks about when she presented before him she presented with hypo manic behavior which again is the only symptom he described as what someone with bipolar disorder would display so in viewing that again and i hate t beat a dead horse but in a light most favorable to the plaintiff as the district court should have done there is absolutely a factual question knowing that this this doctor would never say she suffers from bipolar disorder because he doesn't diagnose there there absolutely a factual question as to whether he perceived that allegation of bipolar disorder to be factually accurate based on her presenting the same exact symptoms that he says by people with bipolar disorder evidence brief i read your brief on page twenty and twenty one to kind of accept the assertion by the city that they did not in fact perceive her to suffer from bipolar disorder you say it's respect lee submitted that finding that there was not a record upon which recent fact finder could so find was an error still to limit the assessment to this particular disability is there was evidence that they perceived her to suffer from anxiety and panic attacks so i aren't you essentially saying agreeing with the district court that there is no basis no what we're doing there or what we're trying to say may be an artfully is that while we believe that to be an error for the lower court to find that she was not perceived to suffer from bipolar disorder which was the sole basis for the granting of summary judgment at this point the court did not go into the next steps of the announces we believe it to be an error that they found her to not they they perceive her to not be suffer from bipolar disorder however we are going to hear was that should not have been the end of the in ousts the court should have looked at the record and then looked at it and said well even if we don't believe she suffered bipolar disorder do we believe she suffered from some other mental health disability that the record flushed out through discovery that that guided and formed the basis for the decision in an unlawful manner so that's the argument we were trying to make and in our opposition a summary judgment we did concede because it was it's factual that dr marshall did not diagnose her with bipolar disorder but again that is borderline irrelevant because to require a plaintiff to require a plaintiff alleging a perceived disability claim to have the defendant in this case the police department diagnosed then would literally eliminate any ability to bring this type of claim because they don't know i didn't understand the district court's decision to turn on a diagnosis that was whether there was a perception of bipolar disorder and i didn't see i mean can you point to any fact  record evidence that suggests that they perceived her as suffering from bipolar and took the action of dismissing her on that basis what the document that i referenced before the it's i otherwise qualified to perform the functions of a police officer which requires that this muscle up all the remaining claims on the st point the pleading issue plaintiff here had an opportunity therefore versions of her complaint for just one second so in in your findings about whether she was qualified or not you don't point to her disingenuousness and feeling to disclose her prior diagnoses and medication for anxiety it actually is part of the conclusion reached by v and my p t a doctor marshall's memorandum notes that in addition to her long history of prior anxiety and panic attacks she was actually her lack of candor during this process is part of the reason that she was found to be unfit to serve and there are and the f d a is clear that the employer is is who we look to when we look to see what are the essential functions of being a police officer and here it's outlined in our brief but the essential functions of being a police officer are activities that require to be a for a person to be in a high stress situations such as intervening in ongoing crimes complaint plaintiff submitted an affidavit in which she herself affirms that the perceived that what she perceived i'm sorry what the n y p d perceived her to have is bipolar disorder and now my adversary noted that we can't read the minds of someone else but here there was an investigation and she was a party to that investigation and she was asked questions about her anxiety about her history of medications for that condition so it's certainly it's not clear why this was manic during the course of interviews why isn't that enough to support a finding that there was a perception that she was bipolar i think it's a big leap to say that hypo manic behavior is necessarily a perception of bipolar disorder and here i think the district court observed very aptly that the anonymous call in which there was an allegation of plaintive was polar is really what set off a chain of events that led to an investigation that disclosed other issues but there really is no evidence including that report that report does not show any suggestion that anyone at the n y p d perceived her job bipolar disorder and regardless of how she styles her to ability but the eighty eight before the two thousand and nine amendments required is that the disability be one that substantially limits a major life activity now in their brief and in the papers below the only major life activity on which plaintiff relied was working a few moments ago my adversary reference sl e which is just hasn't been raised until this point but again regardless of how it is styled the n y p d determination here only limit is only limited to the fact that she cannot hold the position of a police was otherwise qualified to be a police officer there is no evidence she submits no evidence that she was qualified to perform these essential functions now the n y p d has two psychologists affidavit i'm sorry evidence from two psychologists on their staff that show that they did not find her to be fit plaintiff does not counter this with any kind of competent medical evidence nor does she dispute the underlying facts that were the basis of the conclusions by the psychologist for instance dr marshall found that she suffered from panic attacks to two thousand from two thousand and two to two thousand and six claims of does not dispute that allegation at her deposition she merely said that she suffered panic attacks while she was taking a different whether she was perceived as disabled within the meaning of the idea is not really the issue the question is whether she was in fact qualified to be a police officer no you're on our st and primary argument is that there is absolutely no perception by then y p that she was disabled within the meaning of the a or in any way and the alternate argument is that she was not otherwise she can operate that she was otherwise qualified and if there are no other questions we rest on our as relates to the major life activity dr marshall it's pending for fourteen states that bipolar disorder impacts an ability to sleep so while yes in analyzing the other the argument that we made as relates to anxiety and panic attacks being qualified in that they should have been considered we focused our argument on the argument that working is a major life activity none the less so a sleeping which dr marshall conceded is an at major life activity that is impacted by bipolar disorder and then why would anybody think she can't work the issue is whether she can function as a police officer but for the purposes of it of determining whether it is a disability disqualified on the a d f a it has to impact the major life activity that major life activity can be working it can also be sleeping as this course has this court held and go well the suffolk county police department way which i think there's no question bipolar disorder does based on that that law and the evidence so just then becomes a matter of did they perceive it as a i won't rehash my argument but i think the the argue the  evidence in the record does create a factual issue in that when dr marshall submitted his report he cited to the symptoms of bipolar disorder in reference while al overall presentation was a concern he doesn't necessarily sparse out whether it was one interview or multiple multiple interviews and he says her over presentation was a concern she appeared irritated a hypomanic that's on six o five nine so at the end of the day i think what you're on it said is accurate that the the otherwise qualified portion of this which would go into whether she is qualified whether she presents a direct risk it was brief for the serp sake of completeness but it's not necessarily something that i think this court gets into because the lower court only analyze whether she is perceived to be disabled and the magistrate judge you know that did not go into there other objections to the measure judge's findings on the other elements of the claim thank you very much i'll reserve decision