ruled against him on a blanket on a blanket ruling by judge browning at the district court level on summary judgment dr rivera his background dr rivera had worked for you and  for fourteen years fourteen to sixteen years when in two thousand and six he decided to branch out into private practice he was persuaded to stay on point five which is one day a month  after about a year he decided he would come back on he had been promised that he would be back at full time but ran into some obstructions in getting to full time namely administrative obstructions he was continually reappointed at the point five f t level for the next several years while he waited the increase in time two point seven five or higher f t e with a clean bill of psychological slate clean medical slate no issues whatsoever finally in two thousand and eleven when you and am proposed a condition of employment they provided him with a an addendum to his employment contract which included a four part battery of psychiatric examination in order to return him or to increase his employment to point seventy five f t or higher there was no basis for this psychiatric examination provided simply previous conversations had counseling not psychiatric examinations dr rivera then embarked on seeking a basis for un ems insistence on these psychiatric exams and was obstructive when he requested his own file he had to file a petition for writ of mandamus in the state court and after several years of litigation two and a half years the court ruled against you and am said it was an unlawful withholding and he was provided the file within the file there was no evidence of there was no evidence of any rationale for a psychiatric examination there was no reference of the word psychiatric in and random opinion and amended order yes he did could you at least help focus our mind just a bit by telling us what part of the three hundred page memorandum in order the error that you c court the court erred in finding that the that the claims were barred by the statute of limitations the statute of limitations itself is not at issue it's a three year statute of limitations  from the time that the cause of action accrued from the time that a complete and present cause of action accrued under green versus brennan right but does not require that you have knowledge of any affirmative defenses and affirmative defense is is what you're kind of saying you discovered late so i'm i'm a little troubled boy he knew that it request was made for him to submit to a psychiatric exam outside the three year period he knew that was a requirement why didn't start the running the statue limitations for rehabilitation that claim the discrimination claims if you look at the discrimination claims we're really dealing just with the rehabilitation that right now isn't that correct yes we are ok so let's just focus on that ok the rehabilitation act in particular medical inquiries improper medical inquiries the district court had cited as a foundation for its holding williams versus fed ex which states that all you need is employment and an exam requested i asked the court to take up a  particular requirement because i don't believe that it it overcomes the standards of pleading that are required and judge dr rivero would not have been able to file an adequate small amount but still employed and they required a medical exam of of me in this my cause of action and then wait for the defense to come in and say ah but it was medically necessary or for solid business reasons action when he discovered the reason for his denial to for admission to the university of kansas medical school now i know it's not a rehabilitation act claim but there was an implicit understanding that there was a reason posited here or there was no reason here there was no basis dr rivera was entitled to his credentialing file which should have contained any rationale that the court may have i mean that the school may have had for requiring the psychiatric examination additionally it wasn't his cause of action that he had been employed and that a medical exam was required of him was and that his cause of action and that and that there was there was no foundation for you know that's the defense right the defense says we had a reasonable business need in assessing the th that's and that's not part of his cause of action as part of the affirmative defense had he filed a plain cause of action stating only those things i believe that it would not have survived and i don't believe that the wm standard would survive the increased level of pleading standards that that federal courts require in order to state a claim l was saying what was missing was your response to an affirmative defense you don't have to anticipate something on which the defendant has the burden of persuasion you don't have to anticipate that in your pleading i think that's what judge ego is folksy dawn and i don't i haven't heard a response and my argument is that it isn't that that it isn't necessarily an affirmative defense and that this is something on which the employer has the burden of persuasion on that the player has to show a business necessity a business basis for requiring a medical exam is that correct yes and i also believe that the plaintiff would to get to the next stage judge lynch the magistrate court judge who was presiding initially ruled at the motion to dismiss level that the claim was filed timely because dr rivera did not have  about i'm talking about the pleading standards let's let me let me not let's not let's not go off factual allegations that support your claim right it can't just not require you to make any allegation in response to an anticipated affirmative defense which the defendant has the burden of persuasion and no it doesn't in our position is that justice judge lynch said at the motion to dismiss level the the  and we relied on that during the course of litigation litigation progressed from the motion to dismiss stage through discovery all the way through judge lynch retired in the interim judge browning was appointed a new judge new that plane of must prove one that he is an employee too that the defendant employer required him to undergo a medical exam and nation the plaintiff need not prove he is disabled just those two things one that he was an employee into he was required to take a medical exam he knew both of those things more than three years before the suit was filed yes he did i have addressed williams in my briefing and i believe that the standard  derives from whether an employee need be shown to be disabled in order to submit the cause of action i also believe that the pleading to that that particular ruling should be reviewed with respect to that standard because that standard i don't believe overcomes the burden of more than mere recitation of elements of a claim i don't believe because it think about from a policy standard used willy nilly for various purposes in the case law shakes out where the pre employment conditions pre employment tell us that the burden isn't cast upon the employee to challenge it at the court level that that's your claim right construct no the other claim is whether it's job related and subject to business necessity that's all part of the it's all part of the st claim if you're barred  orthopedic surgeon the administration had as set out in my brief in good ministration had undertaken a essentially a campaign against him a task campaign in order to stifle his return to force him into litigation to obtain his own file to disparage him publicly his own department had had essentially turned coded on him and publicly disparage him and said that you subject to the mandamus action there was a risk that if he had left the un and would say oh he's not employed here anymore we don't have we don't have a requirement to provide any documents the conditions continued to degenerate throughout the course of the mandamus litigation to the point of dr rivero requiring being forced to resign i assume as a professor he's got these kind of isolated insulated professors come to their office they teach they go back to their office they study so the fact that directly with all these other people that were testifying or that made statements derogatorily about him yes i'd like to reserve the rest of my time in our reserve have these episodes of unprofessional behavior were any of those confirmed some of them were in his own words your honor some of them were in e mails that he did not deny ascending and that he did he  if he it wasn't necessarily it it wasn't aimed at the cues it was aimed at the patient advocate who was trying to figure out what was going on and his heart and his harsh responses they were disproportionate they were a complete overreaction  france and showed a psychiatric problem they showed a lack of professionalism a lack of professionalism a different i mean i i was concerned about some of the language in your brief about this various things were confirmed but you can still i'd like to hear your response if you go through the people who lose their temper generally when there are accused improperly people might use language that is and is well thought through  they might have time to parse it and then to subject them to a psychiatric exam given the situation that he was in given his risk his job responsibilities of performing surgery on people when he has their their lives and certainly were there are certainly their ability to walk for instance literally in his hands i think that there that you and him had a right to be concerned and i thought it would had to do with interpersonal relations it's not the not the quality of the surgical skills was there any question about the quality of the surgical skill there was no quality about there was no question about the quality of his surgical skills your honor but if someone is going to act in unprofessional manner if he's going to talk to patients in an unprofessional way and there's been there been studies and then you have the during the time period when he was after dr vera left there was there was a major push by un m and other and other medical institutions to improve  professionalism of surgeons you just mentioned talk to patients in the way the thing the only things that you mentioned that were corroborated were statements to the patient advocate if the accusation what confirmation is there that he spoke to patients in the professional well he admitted for instance that he cancelled the surgery because he ever disagree have been a misunderstanding between him and a patient over funding it is sighed he could not he should not operate on this person just out of the middle of nowhere said because of a misunderstanding regarding the source of funding and that shows you a psychiatric problem that requires it shows a professionalism problem and there's there is substantial case law saying that from this circuit  even in the land and case there is substantial presence saying that a an employer may use fitness for duty evaluations and other types of psychiatric analysis she was shit a long history of being a very well renowned deputy sheriff your honor and the she had a couple incidents where she she threatened some people and  she she she basically lost her temper a few times and the circuit up upheld a psychiatric evaluation saying that she but especially in a position like law enforcement where health and safety are at  risk the employer has the right to determine why this person is suddenly acting unprofessional after all these years of a professional behavior these are these complaints that i describe they tended to be clustered in a three year period he had like when he when the patient advocate he said something that could reasonably have been construed as comparing a patient to a monkey whether that was the intention or not that's how he came off and the patient advocate confronted him about it but i can find but i asked him about it and he told them he was wrong wrong and wrong in all capital letters in an e mail and threatened the man's job your honor if he was so unpredictable and and so potentially unqualified why did the university keep him on for years afterwards he was kept on for one day a month your honor but one day a month is i mean if he's really not safe without an exam how could you possibly justify continuing his employment he  tended to operate on patients with other surgeons other surgeons where that could have been a solution if you if you feel safe with him continuing for several years after he's refusing an exam i just  was ok with you that he dealt directly with patients for several years without the examiners these me that gives a liar he's cast doubt upon the credibility of your argument that that this exam was a business necessity it was substantially when his his surgeries were substantially limited his point was substantially limited the one day a month means he never did any pre op he never did any post he never and studies show that when you're out hey that when a physician is unprofessional prior to the surgery and doesn't treat the patient properly prior to the surgery there can be no it can result in negative consequences and he did he wasn't doing that he was he merely came to came him he performed the surgery and it is technically well well regarded no question about that but he didn't have to deal with some of the other aspects of practicing medicine aspects that were it were frankly exposing you and m to some serious  person would doubt his impartiality he was on the staff of the university of new mexico as an adjunct professor of law he wouldn't getting paid money but he was giving getting a free research assistant  i'm just a little troubled why a reasonable person would not have doubted whether he could be was would be impartial in the lawsuit begins that's very same university well st of all yes he was his he taught one class he did not believe his going to be teaching a class and in the teaching class in the future it was not on the permanent staff he only he was there and he was was teaching those students and he was getting remuneration in the form of free legal free gave him a law student to help without charge to help him do research right he he devoted his paycheck to that student yeah so he was getting remuneration from the university that was being sued before him why wouldn't a reasonable person say wait are you just a little too cozy with that university if you're my lawsuit against that you know might i reasonably question well marshall well st st of all the his connections with the university of new mexico were not any closer than those of any other federal judge in the state your honor secondly there is a substantial case law from from the circuit and other saying that professor judges what closer ties to the university for instance there was a case involving it it was the th circuit the winner case in which the judge in question had close ties to the university of kansas he was on the board of the it's pretty is clear that dr crow was not constructively discharged from from his employment at at u n m he continued to work there as you point out one day a month it was exactly the same  his employment there after the den them was exactly the same as it was before who come one day a month he admitted under oath in his deposition that he was not treated unfairly at all he no one interfered with him all the issues regarding people badmouthing him as he claims a law that he didn't even know about it stands to reason that if you're going to constructively discharge somebody you need to do it directly to them you can't express your concerns privately that there's no there's obviously no intent to make his working conditions difficult and there has to be an intent to make the working conditions difficult so that any reasonable person would find that they had no choice but to resign and  dr rivero claims that well that he had to do this mandamus action to get his file and that that was somehow harassment but at the end of the day he stayed during the entire course of the mandamus action until he actually received his file your honour's and when he received it was only after he received his file that he quit and there was no one encourage him to quit no one asked him to quit in order to have constructive you're saying that in order to be constructive you have to be fired you know you have to essentially be you they don't have been actually fire him but they basically make that make his working conditions so difficult that intentionally essentially that anyone would any reasonable person would find that they have no choice but to quit and that wasn't the case is working conditions were perfectly normal perfectly fine as he admitted your honor so  time and secondly the number of cases bennett vs vs quark is one of them in which it's been held that a even if the psychiatric evaluation were to be considered a discriminatory act which i'm  arguing it's not a discriminatory act one discriminatory act isn't enough to promote france that's basically what this is his failure to promote is not enough to establish a constructive discharge has to be an ongoing pattern of harassment and it didn't seem like and after the denim was done with after after the adenoma was withdrawn everything went back to normal as far as his working conditions were concerned yes he had this pending lawsuit but it did not impact his conditions of employment and therefore he was not constructively discharge the district court decision should be upheld in its entirety thank you all very much your hon psychiatric examinations dr rivera who had never been at risk of failing at his essential job functions in the central job function for an orthopedic surgeon is orthopedic surgery the complaints that were referenced mr marcus related you an ems position fairly clearly that there were the you could insinuate or you can for there was no exam there was no investigation of these complaints there was no and your honour's if as a final note with respect to the addendum and the psychiatric examination that allowing that to be permissible essentially opens up  couldn't you meet those two elements in two thousand those two elements if taken in their strict reading could have been met but the fact is that consideration of of whether dr rivera could have in two thousand and eleven filed a viable complaint with substantial facts as required under it ball and twamley diverges from that william standard thank you very much your counselor