the threat to the health of the people who live there based upon the proof which was submitted to the district court namely the only proof which was some it was that of a report by a doctor carlos a lot of it was a doctor of infectious diseases and queens who reached the conclusion that he posed absolutely no threat whatsoever i don't know why does the building charged with scientific knowledge like that heat he tells them he has a condition and they say we don't know enough about it a doctor's letter and then you come in on a trial months later and say you know it really wasn't contagious but how is the building chargeable with that knowledge what the u s supreme court and what this court i there must be a individual lies to suspect there must be an evaluation which is based upon objective medical evidence and in undertaking that evaluation the u s supreme court has urged that the employer has to look at four things they have to didn't feel as though he had to when i thought i thought he did go to a doctor and got a note which he actually submitted to the unemployment insurance people what he did was that was an honor and he one that was after he was fired what happened was unemployment insurance in order to collect insurance benefits you have to be ready to return to work as opposed to having total disability which then you can return to work he got that for in short for him and in april of people age of twenty fourteen which post which which was the effect an ailment in the court urged that there has to be some assessment based upon the objective medical proof and what do you what do you think we should require an employer to do a follow comes in let's say he mentions  we don't know get a doctor's letter with the employer what the employer should have done is the employer should have said mr lopez we don't know what it is and what it causes and how to could affect employees as well as by by extension their families because that was what miss anthony was the risk go home it's paid leave for now we have to engage in an assessment based upon the they would send him home you said go home and get a letter paper how is this whole issue about the two days that it took him to get the letter is not the case about no it's about the fact that they put in a lawful condition on his continued employment with the company but you just said they could send him home to check it out it was paid leave while they was so then the so the only difference is it wasn't paid leave that was today it wasn't two days if you want he was told to leave on the twenty eight and they said bring a note bring a letter demonstrating that you don't have the tightest no later than march twenty second or else it could result in terminations and when he didn't they fired him on the twenty fourth so what's the gap there the gap would be twenty two days only today because that's a long time to get a lot of this and i mean but maybe he's entitled to pay for the time the reasonable time it takes to get a lot correct while they conduct individualized assessment where they don't have the individualized assessment starts with his bringing a doctor's letter doesn't they don't they don't have to hire a doctor they've said go to your doctor you know if you come back and tell us wh really higher in a doctor but it's informing themselves what the what what do you think they should do is it enough suppose suppose they look on web m d i mean they go on the internet and get some scary information that's totally bogus have they done enough do they have to get it right that would be a question of fact and i think that that's subject to a negligence standard is what what evidence was out there what did they reasonably think was out there what did they do to find out the only safe thing they would do you could do is hi a doctor right because if they just go and do their own half baked research as laypeople and checking out a few web sites they are at risk the jury will think they should have done more it would it would all depend on what they found and what they relied upon you know because under the circumstances here there was absolutely no risk whatsoever that now anybody i understand there's something of a difference of fact about what he was told about the letter an issue of fact right i would submit that there is your honor so suppose disappointed is the issue of fact were resolved in the direction that the jury found or based on  documentary evidence it was clear that what they said was bring a doctor's note that says you're ok to work in other words not that you are it that you don't have have to titus but either you don't have the tightest or you do but it's not really a the other workers and the people who live in the building yes that is if he has a disease which could pose a threat which he did not write so what i'm asking is if it were clear that the building said go and get a doctor's note that says it's ok for you to come back to work would you still have a problem if yes no i would never if there was an issue with respect to his ability to perform the social functions of his job which necessitates under the essential question i'm sorry maybe i'm not being clear he comes and says i have hepatitis if the building i understand there may be an issue with the people saying come back with a note that says you don't have hepatitis because that's kind of prejudging the issue of how dangerous hepatitis is but assume for the moment that there was no issue of fact and that it was clear that what they said was oh you have to titus go that says it doesn't it's ok you can go back to work even go back to work listen people he has hepatitis it's very unfortunate for him but it's the only ways it spreads are he has the one and only spreads through blood contact the risks of contagion are minimal he should be allowed to come back to work if that's what the doctor says are you telling me that because objectively speaking there was no danger they should never have sent him home in the first place and they're liable for the interim i think that it is a cause of action to inquire as to as to the medical circumstance of somebody but under those circumstances but they didn't quarter he told them he says i've got a disease right and they say oh well we're concerned about that disease the question is are they allowed to send him to say get clearance from a doctor that it's safe for you to come back to work or are they not that it's ok to come back hepatitis because that wouldn't help him because he's going to get a doctor's note apparently that says he does have hepatitis he can go back and then he can go back to work at at all so that if that's the is that the thing that we're focused on here would be a distinction yes because his his claim before the district court was essentially a claim for wrongful discharge right that's how the district judge understood it was correct did terminations and even if there isn't give us at least some some paid for those days when he should have been with pay instead of without and while he was getting the doctor's letter that claim was never raised right well th way that your honor has articulated act a would mean from the time he was allegedly wrongfully barred until the time he was reinstated that was acting right also our position that he was unlawful it was an adverse employment action by virtue of his unpaid suspension he was suspended on february the twenty eighth that said you cannot return and you will not be paid that's all that's on the spewed in the text messages you have to leave you will not be paid until you can prove to us that you don't have hepatitis blood work to come back but i mean you're saying i think that it's wrong what they said was wrong fall in the first place that he was right that he didn't need to get a doctor's note that says you don't have hepatitis that's correct that was an unlawful condition which was placed on his employment and his failure to abide by an unlawful command is not a defense under the he believed that he had always consistently performed his job and expected exceptional level which was substantiated by a super but that's irrelevant right he could be a the greatest worker in the world if he did have a disease that was highly communicable and would be transmitted to and would damage the people in the building it wouldn't matter that he was a good porter rather than a bad one absolutely if he had a completely different circuit i don't see any distinction factually from the present scenario is if he walked in and said boss i think i have a to bed identical if they said well you have to leave and the only way we can have you continue working is if you demonstrate to us that you don't have it what would the jury instruction be i take it one of the money issue with respect to aids is that by this point we're all much more knowledgeable about the the risks and non risks of someone whose age i'd be positive and i would have a hard time imagining a jury saying it was reasonable for an employer to be ignorant on that subject so in this instance where perhaps it's a little less clear  with the jury be instructed what it is that that they have to have taken some reasonable steps to informed sounds about the disease that he has for claimed he had and it would come down to whether the jury the fact finder determines was that reasonable but in this circumstance the i think the facts are under spew that they did absolutely nothing well we're not here on your peal of the denial of summary judgment so right in your favor we're here on your appeal summary judgment granted the other way so we don't have to decide and that as a matter of law they did something wrong we only need to decide that there are issues of fact such that a reasonable jury could find in your objective medical evidence they relied on subjective non medical evidence and what was i think troubling about the district court's decision respectfully was that that pervades the inquiry which must be undertaken is there any disease that would be so obscure that the employer could legitimately say i've never heard of this i go get a doctor to tell me you know what minimum i think that there are tribal issues affect because what do you do with the case of the district judge and enlisted for the proposition the failure to get medical clearance is a legitimate nondiscriminatory reason he's got either five or six cases are excuses wrong and you honest with this regard are they right but you're wrong they're all distinguishable your honor they involve a completely and totally different circumstance any time there is an employee who has an issue with being able to perform essential functions of his or her job with or without an accommodation right so for example somebody takes a leave and says i can't perform my job because of my disability i'm going to be out for three or four months and then comes back and says i'm ready to work again it is perfectly lawful for the employer because there was an issue of the disability causing that that individual to be not able to perform the essential functions of his or her job with or without accommodation you say you first need clearance we need to make sure you are able to perform essential functions of your job therefore we need you to edit or get a doctor's note i or i do not on day one why do they have to wait four months why can't they say that to him on a one as there was never an issue about whether or not he could perform his job with or without the comedy but i understand that we said his job involves not infecting people's clothes he came in and said oh i have a really bad flu today and they said go home and don't come back until you have a doctor's note saying you're ok a flu then they couldn't send a mom it's tough to say yes or no one way or the other but that's why i think the supreme court has utilized that individualized assessment which belies an objective medical evidence that looks at four factors been a bearing on the merits of the lawsuit but as with many lawsuits one sometimes gets the impression if everyone had behaved like adults we wouldn't be here like why didn't he come back with a note that says there's no real problem with hepatitis guy's you're acting out of ignorance and superstition and then maybe there would be a negotiation over whether he should have been paid for the couple of days it took to get the note and then the case would be settled but instead there is this  resort to standing on one's rights which may not be one's rights and either he winds up imposing liability on an employer that's not you know it's not the i b m it's not somebody that's got an id and human resources department and professionals on call to do all the stuff it's a little building and so either they get saddled with a big liability or he gets nothing and is fired and that's what that's how  that's a question of fact that if they had said look we sent him home we did a bunch of research on levante we googled it i called up my friend who's what i called my friend whose husband is a doctor he told me a b c x y and z and then we made the determination that was never done i just ask you about the facts and labels favorable to your client which is his deposition just what happened here and i'm an appendix twenty eight it starts off that day with his telling his supervisor hepatitis b or c she didn't say if you have that you can't work here she said i want you to get clearance for hepatitis b or c and it and he's question was were you told if you got clearance you come back to the premises not right no  at some point she said she was going to talk to the board and see if i was capable of coming back and at some point it's a question at some point did you get clearance to come back i didn't get clearance for hepatitis b or c so there's no record that they said to him if you have have otitis b or c you can't work here they kind of said we don't really know what this means just get clearance for it which means if the doctor comes back and says look he has it right if you doesn't have a great if he does have it it's not a problem for the people he works with the people he two or three o'clock in the he said we're a question we're told if you got clearance you could come back to the premises not right there no question were you at some point told that she said she would discuss it with the board and see if i was capable of coming back question at some point did you get clearance to come back answer i didn't get clearance from have otitis b or c spoke with kenny spencer he advised the following until we received clearance you cannot come back to work so you will be unable to work the weekend because you schedule that we can now agree i've seen that too and i understand that i'm just saying clearance doesn't it clearance is different a fine point clearance is different from say you have hepatitis b or c i think that's dangerous you have to leave she said we don't really understand the implications of hepatitis b or c in this environment where you see tenants and coworkers just go get clearance which means the doctor is not going to back says yeah he's got it but it's of no danger to anybody ok fine you go back to work that was the implication of what she said to him right i would respectfully disagree i don't for well she later on text message him and stated explicitly you cannot come back to work until you are cleared of hepatitis we're is it safe not on page one twenty so maybe somewhere else can you show me where it is you want to  receive the clearance you cited me to appendix one twenty there were says until you receive the clearance you cannot come back to work then say clearance that you don't have hepatitis is there some other text message that you're referring to other words the t messages when viewed in their entirety demonstrate that she said you cannot go back to work until you provide clearance for having hepatitis or is it says you are cleared to work those are her words you can't work because this is a fine point right you get my point i think that there can be several interpretations of their exchange but i think you mean viewing the entirety of their communications it was clear to mr lopez that he could not work until he was clear about the plan as he had to demonstrate to the employer there was to return to work not clear of appetite as that's my point where does it say clarence that you must get something that says you don't have hepatitis we're to say that in his in his o the the text messages in light of their conversation and a letter which arrived a couple days later it said we need a letter stating that you were fit and able to return to work mr lopez testified that he understood fit and able to return to regards to your health and to clarify if you have type b or c does it matter whether he has be or c now my little name my little internet research and maybe your expert will tell us something different so i want to b is fred through blood semen or certain other bodily fluids even in microscopic amounts that sounds to me like hepatitis b may be much more communicable than c one of what is your expert report say about the difference between b and c if anything as to the extent that it relates to transmit ability yeah that it was remote to the point that it was almost nonexistent or be specifically for b or c and do you have some time to lopez had with p j the super that led to this whole case was based on the fact that mr lopez hadn't been performing his job duties he asked to speak with p j because he had to leave that day and he then advised that he thought he might have hepatitis which p j then went to the maj min and said you know he advised me might have the tightest at no point and we can and we can look at the the letters and we keep talking about clearance for hepatitis there it's for that with the doctors know the doctor's note says we just need to know that your fitness level to return and perform your job to these there was nothing about we need to know if you don't have titles or you do have hepatitis the note said if you are fit and able to return to work well no that's not quite true i do is just  reading with mr woodward the note on the text message on one twenty three of the appendix it says to clarify to to clarify the words of your health and to know whether you have or see their specifically asking for a diagnosis i'm not referring to the textbook i'm talking to the official letter that was sent to mr lopez telling him that he could return to work if he was fit and able and that's what the the district court looked at as well where is that in the end i'm not sure which one twenty five i think in twenty five there was a letter s by that time he had gone to the doctor's the proceeding friday because he sends a text to births a gentleman at the doctor's trying to get to know trying to get to know he knows he needs to know what you need in order for me to go back to work and he did but he never submitted it to management or the board or the co op and i mean as a side note unemployment determined that he wasn't terminated and he would receive unemployment that's when this action was started but one of the key things in this case is if there's an adverse employment action and if you look through the deposition testimony in our brief it cited numerous occasions even by mr lopez himself he was never terminated from his position he states in his deposition  the question was asked at any point no matter what are you not allowed to come back to work and he states specifically not the full sense was the question was and i know this might be repetitious a little bit but i want to ask in a more clear manner at any point would be able to return to work so he made a conscious decision not to submit the note and theoretically by law and it's cited in our brief that to be deemed abandonment of his employment and the district court found that favor as well  now as it relates to them requesting the no that there was no issue with them requesting a no because all they were trying to do to see if you was if enable to return to handle is job duties and that the courts have held that already question whether or not his performance on the job you left a few times you called in sick a bunch of times then as it relates to what was brought up before by your honour's there with hepatitis b and c this isn't a no it's not a doctor she does not know what the they have shareholders he's in and out of the apartments he has contact with other employees it was cited in my co defendants brief they're not your type but they're they represent imagine there's numerous instances where he did get injured on the job and he did have yet to be taken to emergency care one day for an injury that occurred on the job so the worst some risk involved that in all they were strictly seeking was to whether or not he would be able to form a job functions and would be a risk to the shareholders of the other employees heard a lot of potential issues of fact and so on of this case all we need to do is send this case back to the district court and that would satisfy mr woodward for now and then of course there is attorneys fees piling up and  you know do you think you're likely to to win and you want to have that decision made god bless you i mean i know there's no pressure here i'm just wondering if this is a something that's even presented itself to that is something that has not presented itself to the parties before we do have a mediation program in next to the court and that might be something that people could think about but i'm not you know no pressure i'm just saying and if this is never occurred to anyone get a pebble and then maybe it works out and maybe it's three pebbles or maybe it's half a moon i don't know but that's that's how negotiations in mediation happen course they're asking for more than you think is reasonable and of course it you have they were looking out for the best interests of the other employees of everybody believes everybody believes they're in the right sometimes it's a lawyers job to tell the client yeah well do they do that there's justice and there's also you know how much money you're going to be spending to get justice and you don't think you're even at risk for a few days where you suspended him without i think if that was brought to the table while back i think that would've been a no brainer i mean at the as it may be a no brainer but if he wins on that he  that your honor if you look at his complaint he's asking for an act he says he did he says back pay includes a short period because he put a chart is that his papers that specifically pointing out is that if he were to win even a few days he'd probably g understood few points i wanted to raise with respect to the letter the march third letter which stated that you need a note which says you are fit and able to return to work mr lopez testified that he said he said he understood fit and able to return to work to mean clear of hepatitis and furthermore you know if somebody sends you a letter that says i get me a doctor's note that says is you are healthy or get me a doctor's note that says whatever and you interpret it as meaning something that it plainly doesn't say what you interpret it as isn't the point the point is how would a reasonable person take this now if you want to make an argument i think is a plausible argument that in light of the communications that had come before it was reasonable for him to understand that we're that's how we should understand it ok but what he thinks is pretty much irrelevant as well i think it's it's viewed in light of the context of everything that happened but furthermore what i think is very important is on page seventy nine  had to be cleared of hepatitis b or c to return to work answer i believe so so that's exactly what she intended finial to return to work to mean and that's exactly how we understood it she had to find what fit and able to return to work meant and that's precisely the way that he understood the letter so in terms of the communication between the two people the writer meant it a particular way and the reader understood at that exact way the few other points in terms of i felt like to just know because there's been discussion about some settlements i'm going into numbers i think we've always been very reasonable and open to that and it's the defendants who've been really unwilling to participate in any kind of reasonable settlement discussions this issue about he was having performance concerns with being able to perform the essential functions of his job the record would demonstrate that he was suffering from fatigue and the reason he was was because he was having to come into work in the morning at three or four in morning to plow the driveway of snow before work that was what prompted him to have a conversation with mr riley and really this focus about how he was a bad employee is only being raised for the first time on appeal and quite frankly there was no discussion about this employee with us we're firing you they were they were can they were issues i think raised in a brief regarding his work performance but i think those are belied by the to tell of the record which demonstrates that he was an exceptional employee in fact a supervisor said that he would give him a ten o as an employee also it with respect to the note that he got saying that he was fit and able to return to work he never delivered that to the employer because that's not what he understood that they wanted and furthermore that note was only received after he was fired and it was in response to a request by unemployment to say well in order for you to obtain benefits you have to be able to return to work he was at the doctor and that's what he texted you sent and yellow saying what do you need and then he couldn't have that procedure done that day and left and then sensually he got scared but was the procedure whatever procedure i would imagine is needed to get a clearance to determine whether or not yet appetite is which i would presume his blood work and then tests which are done there after that he wait for the e to perform a blood test there's a lab tech who performs the analysis and then there after the results are sent the doctor didn't so it doesn't matter if you have couple times pearcey go back to work doctor didn't say anything when he went to the doctor the doctor said ok why are you here and mr lopez didn't know because he didn't know what the procedure was so that's when he text message miss and yell saying what is it that i need from the doctor and that's when she responded said you need a clearance as to whether or not you have hepatitis b or c because there are employees that are free from salt in their families