does to physical disability john you are barry was the unfortunate victim of a mental illness bipolar disorder he didn't know he had it and nobody knew he had it until the strange events of august first and second two thousand and eleven there was nothing mr yard very could have done to foresee the onset of the manic episode that led to his terminations there was nothing he could have done to prevent it and there was nothing he could have done to warn his employer about the impending impairment he did not delay in telling his employer about his disability he didn't wait until after he was terminated to request an accommodation he didn't go to work knowing that he had an impairment that might affect his performance and he didn't threaten to injure anyone these facts distinguish this case from all of the cases cited in support of a pelleas position and from all of the cases relied upon by the district court neither h h gregg nor the district court suggest that john your beer you are barry should or could have done anything differently or that he's even responsible for what happened to him yet h h gray or greg argues that it's terminations of mr yar barry was justified by his bizarre conduct regardless of its cause but why just because it was extremely bizarre and weird to use the words of loss prevention manager todd zimmerman the record is devoid of any evidence that mr guy barry's weird behavior caused by his disability required his terminations as a business a the statute itself section one two one one to be six of the eighty eight provides that discrimination includes using qualification standards that tend to screen out an individual with a disability unless the standard is shown to be job related for the position in question and consistent with a business necessity in addition the e e o c is guidance on applying performance and conduct standards to employees with disabilities provides if an employer cannot show that a particular standard is job related and consistent with a business necessity the employer cannot use the standard to take an adverse action against an employee with a disability and that same guidance honor i don't think it is in this case for a couple of reasons number one the evidence in the record is clear and undisputed that this was a one time occurrence from mr yarber this is not the kind of disability that an employer is going to have to repeatedly put up with number two there's nothing in the record to indicate that this particular action on behalf of mr yard  required as a business necessity as applied to mr yar barry required his terminations so the fact that the guidance gives that example has to be placed i believe in the context of the particular employer and the particular employee and the actions that were committed the likelihood that will that it will be committed again the burden it places on the employer all of those things i believe need to be taken into consideration to adequately protect employees and in this case again there is nothing in the record to indicate that mr ja barry's conduct required as a business necessity h h  gregg to terminate his employment within about twenty four hours from the time it occurred and without any investigation at all by greg into the manifestations of the disability itself why was this happening although he was invited by the fiance who contacted h h great to please contact me if you need any additional information they took no steps whatsoever to try to investigate what was really going on with this employer and as this court has indicated there comes a point when the employer must meet the employee halfway if the employer if the employee seems unable to request  accommodation that also did not happen in this case there was complete silence so all we know in this on this record is that there was a one time occurrence of odd behavior not during business hours did not affect any other employees except for the loss prevention manager and the h r people that were involved in investigating it did not affect the goodwill of h h h gregg so there's really nothing in this record to substantiate the defense that they need to establish that there was a business necessity and we believe that that is a jury question for the jury to decide based on all of the facts was this the kind of contact conduct that know the the employee first of all it was an alcohol case and the eighty eight specifically excludes alcohol alcohol disability related conduct stemming from alcoholism from its protections and in addition the maddux case the court in the maddox case said what he really did with nothing required him to get in his car and drive when he was intoxicated wouldn't have american and the employer your honor if that with respect that cannot be what that case ultimately means that case of course was decided on its facts and on those  facts the court determined that that quote that employee was was disqualified from his position but there is nothing in the law or in the case law in fact there is opposite authority to conclude that any fireable offense that an employer puts in his manual or posts is is equally applicable when that conduct is the result of a disability that is precisely what the eighty a the language in the statute itself and the guidance say you cannot do you cannot apply a job standard to a disabled employee because of that disabled employees conduct and less you establish that it's both job related and necessitated required by a business necessity we suggest that that's a factual issue a case by case issue that needs to be determined by a finder of fact on the particular facts of the case as to whether or not in this case as applied to this person w required as a business incessantly that mr yar barry be terminated and the facts as we see them show clearly that it was not again a one time occurrence after work hours didn't hurt anybody cause no loss of property to the company he was terminated and in the end your honors he was terminated because he had a disability because his disability caused him to engage in these would be a different case would it not yes but what makes this case unique your honor and what makes this case we believe so important to to the court's jurisprudence and to this area of the law is that barry did not know he had a disability and it's not a case where he just sat back and didn't tell his employer within minutes or hours of the manifestations of his disability the defendant knew of those manifestations and those manifestations themselves the conduct that caused his terminations was the very conduct that was the man as manifestation of his disability they learned of it essential at the same time that mr yobbery learned of it that makes this case it seems to me different from most of the other cases and then the other important distinguishing factor is that he didn't threaten anyone he didn't threaten to kill students he didn't threaten harm to other people the guidance i believe and the courts have made sort of a bright mind there we're not going to require employers no matter what the cause is to retain employees who threaten students in a school or other people that's understandable but i think the cases have to be read in that light because aside from that kind of bright line the guidance is your honor pointed out the guidance is is guidance it's not a bright line and when the guidance gives examples the court i believe has to interpret those examples in the light of existing case law and applying those principles to the specific facts of  inappropriate particularly for a manager he disarm the store and entered it at one am in the morning your honour's he entered the store safe for no business purpose he was in the store for no business purpose he left the alarm i'm sure there's evidence in the record your honor that he locked the door but even if he had an individual could have broken in and nobody would have been the wiser individual could have been either stealing something from the safe or they could have been stealing something from the store or simply laying in wait for employees when they arrived in the morning and nobody would have known he also outright refused to take a drug test your honor when he was directed to do so he only agreed to do so  can say i want you to have a drug test you get a random drug test policy or a misconduct or accident drug to follow your honor this wasn't a random drug test this is a manager w paid on a salary basis he was asking you about your policy to keep that you can discharge people or if the individual is randomly selected or if we're asking about in the vacuum of an individual is randomly selected or they're selected  after a post accident type of a testing and they refused to do so they can be terminated for refusing to cooperate with the company's drug testing program protocol you are here  was on the job he brought he ended up coming to work he unlocked the store he didn't have to come to the store but he came to the store he unlocked it he went through the company safe he left the store on line or that he was on company premises he was on company premises and the only reason he was able to be on company premises was because he was a manager that was responsible for that store and for the store's employees  demonstrated a lack of professional judgment undermined and undermined the trust that a chef greg has to place in these managers that are responsible for the stores violated h h break safety detrimental conduct and refusal to cooperate policies very also offers no evidence of any individual that engaged in any similar conduct but was treated better than he was despite it being his burden to do so at the prima facia stage even if he was disabled in h h gregg disputes that he was disabled on this record if you can't demonstrate a prima facia case under these facts your honour's and even if he could demonstrate a prima facia case if he can't demonstrate that h h craig's reason for terminating his employment his conduct demonstrate that he's disabled all we have here is evidence of a transition condition mr yarber it is on deposition admitted that he didn't know whether he had bipolar disorder  his employment and didn't he reconsider that decision and email some of her fellow supervisory employee employer supervisory stay on what your honor she spoke with her boss she also spoke with counsel but there's first of all reconsideration or looking at the facts again she never said that she would testify that she was reconsidering her opinion she was doing what any good r manager would do which is talking about this new information with her boss or with counsel why if he's not reconsidering her decision why would he be talking about  and nobody in this case disputes that mr edgar was a decision maker the ms bush was the sole decision maker in this case and if the three are various position that reconsidering or talking to her boss about new information somehow means that her prior decision to terminate him immediately wasn't final the no decision is truly final because she could and since i believe there were conversations with family members after the one o'clock decision and before good for fifty for what i would consider the final plaintiff's argument in that case that the individual trauma nation be considered final as of either the day that it was entered into the company system or the date that it was actually communicated to the employee be a termination notice and  after this employer was away or of the fact that your very have to drug and that he had been committed in voluntarily committed to a psychiatric on your honor we believe that th case law including the burns case demonstrates that it's the decision is to be fixed at the time that it's made which is prior to one of the three pm on august third but even at this court finds that there wasn't notice or there analysis is the same this individual the employer was was applying a legitimate business rule this employee engaged in conduct that violated workplace performance standards  footnote in the raytheon vs hernandez case your honour's where it said that to the extent that the plaintiff in that case was arguing that his conduct arose out of his disability the court said we know that we've rejected that argument in a separate in a separate context indicating that it would do so in this case of it have the opportunity to hear that the vast majority of other decisions you in this matter the e e o c like the sixth circuit says that you can terminate for disability related conduct and it provides examples of that conduct things like insubordination things like profanity and even cites the example of of an employee who hugs customers and says it's consistent with business necessity and job related in this to enforce that type of a rule that you can't hug a customer certainly if you can't customer you can't do what the floyd did in this case which was expose the company to all manner of threat the fact that nothing occurred by grace of god or happenstance is not the issue your honor and what he's requesting to do in this case is he's not he's not requesting the accommodation of additional time off that's not what was requested what he's requested is a do over he's requested that his conduct his misconduct be excused and this court and several other courts have held that that is not a reasonable accommodation is in fact an unreasonable accommodation to excuse past misconduct a reasonable accommodation is a prospect of as the c s said it doesn't you don't go back and excuse the prior misconduct i think you made a statement earlier in your argument just in that you were not accepting the contention or somehow uncertain about whether he in fact suffers from bipolar disorder or maybe maybe i misunderstood you could you explain that well your honor and the in the district court noted this in its order your honor first he said at deposition that he didn't know whether he had bipolar disorder and he acknowledged that he only saw the doctor who initially said that his conduct may have been related to bipolar disorder once he's no longer on medication he saw t subsequent medical providers that refused to diagnose and with bipolar disorder in the most one was willing to say was that it was some sort of an adjustment reaction which implies that it is more of a transit type of a condition which even under the fact said it in his words your honor he said no i'm going to sit back and chillax that a request for a drug test or i believe it was a request for both were they were speaking mr zimmerman asked him a number of questions mr berry would not allow him that it wouldn't stop talking which is consistent incidentally with somebody that is nervous about their conduct and is afraid that they're going to be doctor at that point particularly where mr garber himself had offered a number of reasonable explanations for his misconduct and continually downplayed it in this case he had said that he was stressed by his job and his fiance and he thought he'd be fine if he just got some sleep went to the movies or had a beer and relaxed he repeatedly told his boss not to worry this isn't life or death he completed repeatedly downplayed that behavior so what mystery help me just one life time  suggested that your client is not here only under medication for bipolar disorder is that correct as far as i understand right now that's correct your honor but that's a red herring the hearing well it's a red herring because he the undisputed evidence in the record is that he was diagnosed by a doctor who treated him in the psychiatric hospital with bipolar one disorder in a deposition he testified that let's a few months later he saw another doctor in cincinnati who had not seen him during the manic episode who said i don't want to put bipolar in your records because it looks bad there's no expert testimony on the other side there's no actual testimony from that other physician in the record it's a question of fact at the very least as to whether or not he suffered a manic episode from bipolar one disorder and under the new eighty eight definition of disability all that has disorder if i had to just based on what's been provided if i had to make that decision i just speaking for myself i wouldn't know if your client suffers from that i'm on your honor that you had doctors one doctor i don't know i don't know what the situation is in that regard again your honor at the very least that's a question of fact for the jury they did not have him diagnosed by a doctor they used is testimony about what his later and the only thing then subsequently the issue was just the drug your honor there's that they have never contended and there's nothing in the record to indicate that when he took the drug test it was too late no i mean yeah but i mean be done within a certain timeframe h h gregg concluded your honor that he was not intoxicated i think that's a fair reading of the record they sent him for a drug test because they  zimmerman said this looks like intoxication to me gary divisional vice president said he must be it looks like he might have an illness we need to be aware of it's illness or intoxication intoxication was unequivocal e ruled out judge that leaves that leaves illness and it's our position it's our position that when you take into account the fact that he talked without stop for ten minutes when he did all these other different things that they were observing disc raese behavior that they were observing the manifestations of a disability just as surely as we are observing the manifestations of a disability when a person with cerebral palsy is sitting in a wheelchair and w observing that and we know even if we don't know the diagnosis that that person has a significant disability when you read and consider what mrs bush knew what she had read and heard at the time she made her first initial decision one of three pm a reasonable conclusion a juror could certainly decide that she knew or should have known that she was observing the manifestations of a substantial impairment that affected  no deposition testimony from anybody that well we couldn't really conclude it contains no e mail communications between the defendants that's an a what we in the record were authorized representative of the employer explicitly conceded that he was an influence of is that what you're saying i'm saying that and also judge this is important that under their own policy an employee is entitled to one positive on a drug test and if they would have thought for some reason that that drug test was was inaccurate there would have been some discussion about whether or not we need to do more as well the only reason the only way they can the only way they can test they have random testing and other kinds of tests in your honor asked this question they have testing that can result from from bizarre behavior  i'm paraphrasing in the workplace that's one of the reasons that in their policy they can test for drugs and his behavior feel under that policy if he had tested positive for drugs or alcohol your honor under their own policy they would have given him the chance to for treatment in lieu of terminations but because he didn't test positive because in fact it was because of a mental disability they fired him that's that's got to be illegal contacting paul callan and see if you can work something out in this case that you have the opportunity to have a hand in resolution of the case it appears i think you could tell