it please the court the focus of this case today by the appellant is about whether regarded as a disability perception as defined under the a da is exempt from application to an employer under any and all circumstances involving an order to undergo psychological fitness for duty because the two thousand and eighty amendments do not exempt employers from regarded as disability perception for fitness for duty exams apparently advocates there must be some threshold under the a da and his her case demonstrates that behind a threshold there is no lawful reason for an employer to invade and employees privacy by requiring a psychological fitness for duty exam when there is no reasonably demonstrably particularized facts of one acceptable performance or employee safety employee disability was improperly treated by the trial court under the existing law not just any verbalised concern about mental health of an employee permits a formal invasive inquiry into the mental state of the employee this is the reason that the a da in the rehabilitation there have been the stablished and amended in the seeking to correct an interpretation previously held under sullivan to currently meet the requirements of the idea the facts of the case are are relatively complex thousand and six to the present in the interim and she works three days a week as a certified nurse anesthetist she also works two days for a private employer named the i center now through the out the entire period of this case beginning a few months before oct seventh that i will use that as a a flag an anchor date for purposes of the facts prior to  that she also worked for the i center as well now on october seventh two thousand and eleven mr charles martin her supervisor received phone call from a coworker regarding the fact that she was going through a divorce that had some other problems and one of mr martin to be aware of those and she would have some concerns about ms more names mental health you know in her deposition ms hill stated that she could not resume remember exactly what specific words she used or what the specific contents of the conversation were but they were to the  that she had concerns about ms barnum and that she thought that ms born in could benefit from some time off to herself mr martin here u s concerns then went to the office chair of the license independent practitioner health committee and he and dr harter both called peggy boredom while she was working at the ice center and while she in she had formed when she answered the phone that she was in the process of working with a patient they informed her at the time that they had concerns about her well being and they wanted her to report to and you are for an assessment she had indicated at that time that she had concerns about going to  issues because her husband had worked for them and had maybe some because she was going through a divorce had privacy concerns and darker preserved at times as well if you don't go there you go somewhere else it's more likely your husband will find out about your going anyway if you go to another hospital rather than why she's so it would be better if you go there well i was born and interpret this as be particular examination and this is the examination that you say she should not have been required to go through no no which is the examination you say she should not have been required to go to the examination that originally began with the hospital in which they had they sent her to is yet is the it is the one that she should not have gone to subsequent examinations as well the main argument you're making this morning is that she should not have been required to go to that that's correct we should not have that they have at the time they required that they have recommendations that she get a psychiatric and the reason that they told her to go there was that they had been told by her supervisor mr martin who had been told by another coworker that she had had a conversation was it was to be examined for the purpose of whether or not she would remain and continue to work as it turns out from the future and what it cascade into after that they're telling her we have concerns about your ability to do your job or your can say i have concerns about your mental and ask you to to go to the emergency room or you're saying they can't even do that i'm saying that that's a perception of a disability and lest they have some particular facts they have what this lady reported and they're not asking her necessarily to get a psychiatric evaluation they just ask her to go to emergency room is that correct i'm trying to get the facts from you well they're telling her to go to the emergency room on the basis that it's been reported to her that she's having psychological problems so on that basis that's a violation of the  eight it's a violation when there's nothing else to support her performance as an employee that's the essence of perception there is no absolutely no report from ms hill to mr martin that she had she wasn't working the way she was supposed to do she was involved in the patient care issues her only request was she could benefit first some time that was miss hill's take on the on the matter and based on that they order this employee to go to the emergency room to be evaluated on the basis of her mental health could they could have asked her to report to work monday morning sat down and said we we've had reports from this this co worker we're investigating this began an investigation called in miss hill to talk to her about it which by the way they never did they've never talked to one single employee in all this and there is no record at all of any  investigation anybody did regarding any allegations that were made so based on the hearsay within hearsay within hearsay sending her to the e r that that's within the doing when in fact they could have sat down to talk to her and said here are the concerns we have we have this l i p c committee and that's what the doctor preserved chairs up and that could have been utilized it was and that's that's the issue first pathway was they have her interviewed by the committee the make committee could then make one of seven recommendations that they had which were in a full gamut of different things but none of those things involved sending her for an independent medical exam or a psychological assessment or counsel the only thing i see missing in your presentation of the fact is somebody is early as early october in september several of the people that she worked with not just ms hill reported that she apparently was having troubles at home and that she was disturbed and that somebody at least thought that she might have been suicidal intention and what the district court found was that she had been sent to that emergency department to be evaluated for suicide risk that that's a crisis  if it if it turns out it's true and that's exactly how no one gets to they deal with somebody they think is suicidal they refer him to an emergency room you can't just show up at the door of a psych psychiatric facility and knock on the door and and get taken in you've got to go through the emergency room to get there so what was improper about that but the first thing you're older is that there was no other evidence at that time for support that conclusion but she's a nurse she's dealing with patients as i understood it she even was in operating rooms she'd gotten teary eyed and one of the operating rooms people were concerned about her they wanted to help her and at some point she poured into the district court said that she thought her coworkers concern for her was sincere and genuine whether or not her coworkers think or whatever they think is sincere and genuine is not dispositive that she thought they were sincere and jackson and what she whether she thinks they're sincere and genuine doesn't mean that her employer has the right to send her for and psychological assessment in fact of the this court's already held to being suicidal unfit meets the definition of regarding a someone who is disabled and that was inch universe especially cars of america and in her case there is absolutely no evidence on october seventh two thousand and eleven of any of the things you spoke about nor was there any evidence of any of the things that you spoke about developed by direct tests well i'm not making this up out of thin air counsel i know i know that the district court found the district court found that information because the district court clearly erred and determination of facts well ok there was one of the said that he got a number of reports about her or people being concerned about her in the operating room is that not true that's what one of the doctor said and zero issue ron i'm not time here but i'm going to respond to that u has a process for patient safety they have a database for patient safety they document everything they do for patients or all undocument ok there is no documentation or there is not one single post th then what about after she had trouble with adjusting the bed and sort of broke down i don't assume that she broke down she said some people have what euphemistically called a bad hair day sometimes i just can't do anything right i mean being able to plug in a bed is not in the essential job duty of a certified nurse anesthetist it doesn't happen it didn't happen in front of the patient to patient you know was was out at the time and then what about her own therapist recommended that she gets a he had to care well her own pissed is now put on notice because of this entire process it's kind of fruit of the poisonous tree all of this stuff cascades and she's referred to her or her nurse or correction her therapist because of that and when she's referred to her nurse or her therapist because of everything that's gone on in the e r and she agrees to go to that person and gives this information none of that would have ever  happened and the nurse the correction the therapist wouldn't have been privy to that information had she not been sent in the first place there was really no need to send her because she was already going to the therapist but now you have this these reports that are coming in that are unverified undocumented without so you know no basis in reality whatsoever that she's been subjected to and they're saying you have to go to your therapist and she agrees to do that so she's cooperating with them but but once once that's done and i mean the e r doctor said she's not a danger to herself or others diagnosis her is just basically being depressed as i can't comment duty that's why they sent her they sent her to the i mean they sent her to the to the e r to determine whether or not she was fit for duty they have no interest at all in her personal right but it's that's it didn't answer that question whether she was fit for duty but what were they where could they have sent her to determine whether she was fit for duty or are you saying that they didn't have the right to try to find out what the she was fit for duty they could have sent her to the yard to determine whether she was fit for that your doctor said he couldn't address that didn't the e r doctors say she's not a threat to herself but as to fitness for duty i can't comment on that that's what he said why he said that with an attending physician everybody else there is going to be a question that remains the the issue was when she went there for suicidal ideation did he determine that she was engaged in suicide i think she should have even been sent to him she should have been sent him what should have been sent anything allowed to do anything at any particular point to determine whether she was fit for duty when the examined her they were examining her insofar as the law would require is there will not examine her for her fitness for duty what she doesn't work whether she is psychologically capable of working physically capable of working that's what she's there for that's what she's there for otherwise they're not allowed to examine or for anything to answer the questions what would they allowed to send her to the e r doctor to determine if she was fit for duty with the information we had now ok at some point were were they allowed to determine whether she was still fit for duty not under these facts never ok not withstanding the comments the specifically to two instances that crow was a paramedic was engaged in and those two those two comments in croll involve direct patient care threat assessment and texting while you're driving  a vehicle or emergency vehicle and then in and refusing to give a patient oxygen those are direct threats to patient safety in the court in this court even in that case said that really wasn't enough to show that that was an essential job and she wasn't doing  can reasonably rely on that so no that wasn't that wasn't a thank you thank you overshoes east hospital had also called dr harder day or two before she was contacted and asked to go to the emergency room and he reported that he'd had a number of comments over the preceding weeks he had not contacted dr harder about that but after a specific incident in an operating room where ms barnett actually been asked and been replaced by another c r and they he reported that to dr hunter and the issue involved adjusting the height of an operating table prior to the procedure and dr harter the the individual defendant and the department chair for the anesthesiology department reported it's something that's commonly asked to see our knees and it's one of the simplest things they do during an operation procedure as opposed to administering use maine medical center and then a number of the sierra names were worried both about peggy barnum conduct in the operating room and just the concern that she could be suicidal she could be prepared to hurt herself chuck martin had also known from two previous conversations over the past couple months that peggy barnum was going through very difficult circumstances in her personal life he hadn't acted on that just because someone's upset doesn't mean they're going to go kill themselves i mean basically it's almost like your friends or coworkers can make a few comments and then all of the sudden you have to go through a series of psychiatric and it's i would disagree with both of those characterizations you're on a first it was a number of comments over a period of weeks the knowledge of that procedure to document comments  would ever know there is an event reporting systems when specific incidents with patients occur i would argue that o s u doesn't have to wait for an accident to occur until they can report something and here in the district court recognize that a c r n a is in a highly important sensitive job just the she would she works in operating rooms if she's assigned to each day she not only administers anesthetic she's got a responsibility to continuously monitor the patient's respiratory system during the of what they specifically do it's certainly not a hospital where the whole gamut of surgical procedures are entered into and the whole gamut of anesthetic is is run so they're different work settings and i wish you didn't have any information about what her work was at the center  and so didn't rely on any of that information dr hunter again working in a separate facility had this you know a reasonable basis to contact dr preserve psychiatry's through his hair who is the chair of the the licensed independent practitioners health committee and both dr thomas the chief medical officer testified and dr preserve testified about the committee's role in the they were for practitioners who could have a dui could fail a drug test h problem the committee did he convene a meeting of the committee no they he dr hunter contacted the chair dr preserver they decided based on the information they had but the concern about of conduct in the operating room and the weeks of comments from both out of concern for the workplace but also as a possible suicidal ideation a suicide risk they asked her to go to the emergency room on that friday october seventh two thousand and eleven ok but then the doctor said she's not a well the doctor was making a specific analysis based on the emergency setting he did take a history from her he identified a number of issues including the end of her divorce of twenty eight years the fact that her her don't daughter have been charged with with  ting her and was facing criminal charges look i can't begin to imagine the kind of person that lives and things that people are going through doctors included maybe brain surgeons included at hospitals we normally don't verify that everything's ok so that the doctor would say she's not a risk yet these things are going on in her life that may be problematic i mean i think that would apply to half the people at a hospital well dr nadler the resident who evaluated her that night did recommend several different treatments he didn't recommend no treatment he said they could voluntarily admit or he just didn't think there was a base of the pink slip or he offered her the option of partial hospitalization with intensive outpatient therapy he also suggested a minimum she received a se she'd also been seeing in the a p counselor who she'd already seen three times before she was asked to go to see the emergency room that's yeah that's diane holly crap of this she'd been seeing diane holly from work she was sent to the yes they know the did you know that no she told them that after she went to the emergency room and she also told dr nadler if that that person had recommended that she receive a psychiatric was not to post and we don't have specific notes from her reports from the first three sessions we got her report from that week after your honor and that's when she but she did relate a number of different comments that she'd made in the previous sessions including the preserve and the license independent practitioners health committee that they had in front of them when they asked her to receive a psychiatric assessment they gave her the opportunity to see a doctor to issue she declined they gave he opportunity to see a doctor in iowa she's planned network who is not employee of the issue she declined to do that november two thousand and eleven she went to see dr thomas the chief medical officer for o s u to ask what other kind of doctor she could see and he said and he said the equivalent of fitness for duty evaluation by another doctor would be acceptable as long as that doctor had communicated with dr harder so the doctor harder like any i had me could relate some of the specific requirements  job and some of the specific incidents that had formed the basis for their request and she didn't do that she actually seen a doctor the week on november sixteenth two thousand and eleven the week before she met with dr thomas but she didn't tell dr thomas about hey so what happens in february she gives the report that says she's ok she didn't agreed to let dr masterson her her other doctor she didn't agree to let dr masterson talk to dr howard why should why should she have to harder have a conversation with her doctor that's a common element if it is for duty evaluation or an individual medical examination that the employer share some information about the employees job about conduct  why what she what was wrong with saying that's fine give it to give it to him in writing tell him all about my job tell him everything you want to know she she wouldn't sign a hipper release for them to communicate with the doctor and she didn't sign that hipaa release until june of two you know she said it would be fine for you to give the doctor all of the information you want to give him and if you have questions for him given them to him or me in writing and you will get all the information book first again they don't know who the doctor is until february twenty second of two thousand and twelve when they actually received the report and and and again she did not sign the paper elise what she did was in april two thousand twelve she sent her own statement saying you can submit written questions to me and if i think they're acceptable then i'll give them the dr masterson which you know was an acceptable release from only she is there any  cases that the employer has a right to have direct conversations with the doctor i think that's a common aspect of if it is for duty evaluation that the employer would share information keep repeating something and i'm asking a different question i think i'm saying yes share information with the doctor give the doctor would ever information you want including all of your concerns about here are there any cases that say be that you have a right to have a conversation with the doctor i can't cite a case to right now you're on that articulate question in that manner that's why i've said you know as a practical matter i think that's the way i think it's for duty evaluation typically works that the employer would share information with the doctor doing the evaluation so they can look at job a job description so they can see if there were some specifical issues that a patient has an identified to them and a history but i don't have a specific case saying that that is is or is not a violation again the general case well i agree with you on that i ask you a different question do you have any cases that say that the employer has the right to call the doctor and ask questions as opposed to giving information a free right to ask questions all about whatever they want that they have a right to have a hip or really so that they can ask the doctor anything they doctor that they've explored all the dish the issues and that this person is fit for duty that that's something very different from having the right to call the doctor and saying things like well  what did she talk to you about and what are her conservancy and you know exploring all the confidential things that the person said to the doctor that may have nothing to do with i mean it's up to the doctor to decide whether those things affect the person's ability to work it's not it's not for the employer to make an independent decision whether well maybe the doctor thinks the divorce isn't that bad but  physician he was simply again another independent practitioner who has experience in these areas particularly dealing with substance abuse problems and he and the other members of the committee were all employees voice you were just bringing their own independent experience to the circumstances that they saw taking barnum's case they're not her treating doctors and i don't think there's any anything in the record indicating that dr hunter dr thomas when i talked to dr masterson finally had that kind of invasive conversation that you're concerned about and i don't think anything in this case sets that standard how do you distinguish the well with the croquet so the one note i'd make is that that case in that argument about a test wasn't made in the district court that's a new argument on appeal of the arguments in the district court were up more just standard disparate treatment arguments for as far as the case even within the case they cite specific kinds of jobs police officers firefighters juvenile officers correctional officers work in stressful certain situations that concern public safety and i would say a c r and a working patient care in a hospital in an operating room is analogous to that where if there aren't issue of the employee operating under a great deal of stress that it's perfectly appropriate for the employee to recommend that the employee receive the equivalent of fitness for duty evaluation you know the thing they'll notice that the district said we'd cited the sullivan versus the sullivan versus river valley school district case and there the the appellant didn't have a good response to that and didn't respond to that case at all that that's fifteen or sixteen year old case law that the employer can recommend an employee get the equivalent of july dr hunter and dr thomas spoke with dr masterson for the first time she had increased her hours working at the other job so she had to reschedule meeting it wasn't to late august two thousand and twelve that she met with the lin the independent practitioners of committee  during that time and she asked to reschedule the meeting at different times but she was reinstated and to my knowledge she continues to work there since about november two thousand and twelve so throughout the lays were caused really  barnum by her refusal to see the doctor they offered to her her future the see another doctor who is not an employee of a she but in the network and then are not identifying her own doctor that she was given the ability to choose for several months after that until february two thousand of the committee i think the committee doesn't have standing meetings they they convene on an as needed basis and so got to present was acting as the chair on behalf of the committee and initially and it was really the committee so there wasn't even a requirement at that point that she received a psychiatric assessment dr preserve they'd asked her go to the emergency room he collected the report from diane holly that it was that thing for the committee he was in actually i think there was an initial meeting of the committee that was also so when something like this comes up it's not handled by the committee necessarily i guess what i would characterize your honour's the doctor preserves collecting information for the committee so getting the report from diana hawley getting the other information and then  after the second report after they've had a chance to speak to dr masterson in july that information is collected and shared with the video is just the in the end body it's not the body that decides whether further investigation is necessary well the committee actually makes a recommendation to the chief medical officer who makes a decision about privileges or some other job action but the committee does not conduct the inquiry the committee you simply go to the committee when you have all the information assembled information that someone else decided was necessary and then you get there  report that the committee makes that they made in october two thousand and eleven then again in august two thousand and twelve recommending or a reinstatement so they do make a report after the committee meeting and with the chair does collect information some secondly dr preacher specifically testified that they can appear group review that the committee doesn't need a release from someone in the appellants position in order for them to talk to their  attending physician or treating physician where it is not necessary they're requiring her to have that and it wasn't necessary that was his test but he thought it was contentious and in fact he said and some people may think that she's paranoid  i don't but some did which goes to the issue by the way of the court decided there were no stereotypes involved there were people yes there were news the court said there were stereotypes involved in dr pre's or referred to her as paranoid said he didn't think she was paranoid but other people had the problem is there's no evidence for any of this that's a quote just so i understand where we are in your argument you have a first amendment argument and disability discrimination argument yes and thoughtfully you decided to focus on the disability discrimination argument is although i recognize that there are considerable arguments under the first amendment as well yes it's the just looking at the disability discrimination argument your focus this morning was on how much her employer knew when on october seventh she was referred to the sat right now to be correct is there a lot of the discussion in the last few minutes has been on activities that happen after that those are only related to the first amendment claim is that true or are those also is there some disability discrimination after october so yes there is and what is i'm confused requiring the appellant to attend and participate in a fitness for duty examination by any physician whether it's always shoes or her  own what point did that happen that happened when she went back what date that that happened well that would have been around oct twenty first or so once you have the first meeting with the committee the problem is that the committee does he have a committee required her to do something because it consider her to be disabled is that the yes and the committee doesn't have over i'm sorry when was that about the twenty first discrimination statutes every time us october seventh another was october twenty first or another time every time they made inquiry and requested her to get information regarding her medical state her fitness for duty was a violation every single time they did that but they are allowed to do that when they have a certain amount of information and the but it goes to the initial information we you know it's kind of afraid of the poisonous tree argument the well so you're saying if if  if it's a fruit of the poisonous tree which trees were poisonous i guess is what i'm asking well if you can just sort of say well it was all that considered disabled and various times they didn't have enough evidence but i was under the impression that the disability law was to the effect that you can't require them to go to psychiatrist unless you have a certain threshold of information which i understood the argument at the level of october seventh now they get more information they want  on the head when you said that there's some threshold in fact there isn't that that's why we've appealed this case there is no threshold we have to the law provides a threshold and and the question is whether they've met it whether they've crossed the threshold so there's some kind of line at which they can ask for a psychiatric evaluation presumably right now they can never ask for a psychiatric evaluation no matter what their input is they can ask any time that's the issue there's no the law as far as the threshold goes if you look at sullivan sullivan says if it's not readily apparent oh that standard is readily apparent well it would have to be it would have to be well know if it's not readily apparent then you can ask for a fitness for do you example and that's what you're saying has not been met well i'm stunned understand your you know the problem i have with the law is that if you read the law that says if it's not readily apparent that you can that you can then ask for a fitness for duty examination based on disability that it would have not to be readily  be perceived because otherwise it would be readily apparent and you would be allowed to ask for it but they the courts have gone beyond that and he said if it's not readily apparent so how far back along the path of not readily apparent are you allowed to start and in this case not readily apparent met evidently one phone call from an individual that two days earlier had had a conversation that had some concerns when no  at that moment october seventh two thousand and eleven i was as if they were later dates because you're saying how much did they know when you know it's like the water you know what that they know when i'm right on october seventh you say all they had was a certain amount of information but for instance they didn't have that diane holley input later they did have the day and holly and put it well why wouldn't that if she recommended that he receive a psychiatric evaluation that it seems to me would be enough for them to go ahead and insist on a psychiatric evaluation but you could say well it's not but then that's a different argument from the argument with a really with respect and that's where i get confused i would i would argue this in this reason  reasons i've off quoted that you know summary judgment motions about trials on paper how ever but with regard to miss hoey she had already been going to see ms hall and she had several sessions with miss hawley until u sent her to dr nader for her to toe issue and then required her to do certain things like follow up with her until then mrs holly didn't contact o s u and say we've got a real problem here i mean you've got  tarasoff that says if you know of a doctor suspect something is going to go wrong i got to notify somebody off from those post october seventh the activities that you're describing what what's the what's the legal of relevance of them that never would have happened those were all of that was all that that's the nature of what harm she incurred correct ok correct i think i understand see that your time is up unless there are further questions thank