and the person in georgia there at the terminal just told him that some of the management was having reservations about whether he could have done work whether he was able to return to work he  received from the cut detail medical questionnaire wanted to know about all of his medical history not limited now to what happened with his foot just of detail medical question that he responded to that obligation one way or the other is one level going through the patient the the worker might clean appropriate in some ways for the patients where it might be easier going through directly to the doctors or any sort of indication that because he has a record of a disability and relays the company had no right to be inquiring because of these doctor's note saying he was in good health or whatever they said but he was eva's eligible to go back to work without limitation  don't really have to accept i think a common sense answer i have as just common sense and you think the answer that question is yes the statute i cite rises a question about that you know it says that to do that you've got to show that it's medically that it's a business necessity and there's some division i mean it's to me that's not it i can't give you a clear answer that question but i would say as a common sense and just as a common sense matter i would agree that they ought to be able to ask about you know or you  to go back to work in the of this previous problem that you get that when they start inquiring into other diseases what have you ever had for the rest of your life you know what other problems and you had i think that raises a real question about whether they're discriminating on grounds of disability but the  question was a shot of it is that really a simple question when the doctor started sending all these letters why she doing it because she's really trying to find out are you able to work or why she doing it because she intended it throw up every possible h to make it sure that he didn't pay it that he wasn't able to satisfy her and raising a lot of facts in a record from which the jury could draw the inference that that was a race one thing that stands out to me in january two thousand fifteen the union wrote him a letter third doctor examined in a neutral observer to decide whether as not and they refused to do that they said well we're not complaining we haven't studied the records completely and this is an early two thousand and fifteen so they wouldn't allow a neutral doctor to look in wife rachel is quite good at it and we get involved as she got involved and sent them to him and she what's she started out by saying when every better correct in march of two thousand and sixteen and she had then i think four different letters that she respond but each time they would never call her back or strider back they would send somebody mr big and said well this latest information is not station so a jury hears nothing we talked about lawyers and here's what we all know what jurors may know about doctors doctors are out there doing a couple things are trying to make a living like anybody else and their training their patients a doctor's attitude is i don't have time to be under you know entering quite all those details forms to get my foot out here so it's inherently making it difficult but once you your client does provide all these records once they finally satisfy this doctor who works for the railroad they bring him back to work but isn't it hard to show it was pretext in a just a way to avoid him coming back to work when not in the record and the record that doctor says i have notified them that he was not met the requirements but there's never been a record about why they went back to work so i believe i'm not i was not allowed to comment on that but the record ended with the doctor point to and in terms of showing pretext can you point to any examples where your client satisfied the record request and then they just added on an additional request that wasn't followed when it's logical to get something in the evidence that are going to follow up with something that he had they had they had claimed that they were not satisfied with a letter that he wrote in the vendor and he had they wanted him to summarize his all of his notes that had been before and also repetitive of what i've already told you have told you and all of us about all these and he gave his opinion that this lady is just trying to make it all she say that doing it to be difficult or she doesn't know what she's doing and i and we asked him at the deposition you could also find that that was just oh just a hoax so oh i guess i think what i'm saying you're out of the statute the a so to me you're on a jury does not have to accept it is not proper to tell a jury that you've got to accept what their doctor say is that i was doing this for legitimate reasons and i was sent in the forms the morning my pleas court brian neal for being a staffer away i'm going to try to cover three problems with the argument that the appellate is making in this case i want to start with requesting dr gillis being the row row row doctor was the normal process to be honest a followed for someone coming back from an extended leave and in the role she talked about was somewhat out for more than a year mr diggs was out for five years the key here is that dr gillis was not asking for mr mr diggs is doctors to make the fitness for duty determination dr gillis makes the fitness for duty determination on behalf of the railroad she was asking for data from those doctors and that's the you know i'll tell you that's the normal way that railroads do it but it is different than other employers in other cases that you may have seen it may have been different from what mr diggs as doctors had seen where they were used to just releasing someone to come back to work in the employer has delegated that responsibility for the fitness for duty determination to the employees doctor or some employers would delegate it to some other doctor but in the role of context and here dr gillis is the one making that determination so when the argument is made that dr gillis should have just accepted the releases from the three doctors for this employee and moreover that not doing so was so bad that it was evidence of discriminatory motive it's really an argument to be an s f ought to change its way of doing things it's saying you know you can't do your own fitness for duty evaluation because when that employee brings that release in you can't do your own you've got to defer to that doctor and so that's both a problem with the context problem with the arguments being made but it also gives you some context from for why dr ellis was asking for this information d which certainly from the players viewpoint there were unnecessarily repetitive two than duplicate two requests whatever other adjective ought to be thrown in there that's not one of my three points but i was going to come to that at the end of it so let's let's talk about that there really are not as many requests as it may see when we go through the the detail of our brief because a great number of those were repeat dr gillis would send out something and wouldn't hear anything so so she would take the initiative and go back to to mr de and sat in her to think from you are still haven't received anything here's a reminder of the things that i need so we go through that chronology that we have in our brief for the entire time of august two thousand and fourteen when she start until february of two thousand and sixteen every one of those requests is trying to get what she originally asked for in august of two thousand and fourteen so about a year and a half there it's all about the original set and then february of two thousand and sixteen is the first time she asked for something new and so from february of two thousand and sixteen to september there are exchanges and some of those exchanges are still her going back saying well in february i asked you for this i still don't have this and then and then there were sort of two categories of additional requests some of those were she would get records but there would be a cap she would get records in june that she would see that the records she got in to august of the prior year for example so she got back and say well i don't i don't understand because you're you appear to still be seeing him but that there's a gap here so i need to fill in that gap and then the second category of additional information in that last seven month period six and a half month period were medically related follow up questions you know i've read this i have a question about this i've read this i don't understand this issue about this medical condition or this medical condition and i understand that you know a white person may feel like that is that is nit picking but there's been no no testimony here despite the doctors mr diggs is mr diggs personal doctor saying that they would have earlier they did release him and they didn't and they didn't understand why they were getting these questions no one has come in and said look i understand what what role dr gillis had and i'm telling you there's no reasonable medical basis for her to be asking these questions there was no testimony like that there was no testimony that what she's asking for has nothing to do with the medical condition which you know she wasn't asking for something off the wall she wasn't saying i need to see you last in golf course before you can come back and there's nothing out of line here when you're clearly medically related to the information that she see would be i think it's safe for judge to say there's nothing there that would create a fact of railroad dr who is the only evidence is that this was the normal process who was doing what she normally does trying to get the information to make the fitness for duty determination and it's just cost to point out when she finally got it she released him to come back to work and the questions here were not out of lines can have an expert come in and say that you know there's no reasonable basis for a medical perspective to be asking this and as i said the time  period stand back and i think why does it take so long but when you realize the there's this extended period of time where she's tried to get the information and then another fact i'll throw in there is that mr  dropped off the calendar for really about a year and a half from late two thousand and fourteen until you go to april two thousand and sixteen dr gillis sends a letter and says look we haven't heard from you in a long time and and now you've been out for another year and that was the you know that was when she went back and said now you've been out so long we need you to fill out another medical question are you saying that expert testimony would have been necessary to counter plain that this was not all of them an inquiry no i'm not saying that's one thing that that could have done another thing would be if she was asking for something that was clearly out of wind it clearly wasn't a medically related follow or of her doctors even if his doctors still potentially could have said something even though each was dealing with their own area of specialty but i don't know on what basis a jury would look at this and  say i'm going to to decide that dr gillis was not acting in a medically appropriate way and so much so not just that that we disagree with her but that her statements that she was doing what she thought was medically appropriate are unworthy error on her part was the cause of his complaint and that is something that for purposes some of judgment first three steps he was qualified he suffered adverse pointed action the decision was the basis of his disability a showing of discriminatory motive or pretext and on on appeal we have repeated the argument on on no showing a promise a she said i wasn't planning on getting into that today unless she had questions but i am worried about the  thing that he's given adequate medical records you know what what he was talking about was when a phrase that way it sounds like you know he's already provided goods with information doesn't understand what they're asking for war that isn't what happened he was the evidence that this level of detail was consistent with company policy i think if the person was out more than a year i think gillis makes some reference to it is that is that the evidence and everything else that that that's really what the evidence is  that this is the normal thing that i would do i would do the same way for anyone else that was everybody's medical situation is different so we didn't go find someone who had the safely conditions and been out for five years and  is that that's where the line is drawn if it's if you're past one year absence you get all this work to that's when you do the fitness for b you know they don't ask for as wide ranging information if you're out for a short period and that's just because of second point that i wanted to make really related to the first point about important it is the reviews and it's simply that the russians with disabilities act permits that and just to contrast it with for example the family medical the man was out for it and in fact he it turned out he had developed other conditions so that's a good example of of watch after that one year period the round of looks looks a little deeper than somebody who's out for a well about what doctors can disagree and so unless you've got a situation where it's clear that someone is going so far beyond the bounds of medical reason that i would not be evidence that that the doctor  was anything happening right at the time of his being approved to come back to work that he just filed something i don't think so i think what i think i heard mr wade say was that the trial was set a few months later and i i can't say i've actually gone back and looked at the scheduling order but what i would say is that if that's all that happened i would i would take that point if if suddenly dr yellin said ok i'm going to put you back to work i would take that point but that's not what happened she was getting more information and frankly it's just four years who were finally able to look at the letters and get the information although when you look at the records of three eighty nine three sixty six and three seventy two you can see even his lawyers were having difficulty getting the information out of these doctors and so you know maybe maybe that's maybe that's a complaint about the process but it's not evidence of discriminatory motive i can't  know there's no point in the rice line except that we were trying to find out do you have other people in this same situation that you allow come back to work for rice propst and what they said was every everybody else that we've allowed to come back and we've got four or five examples i want out as long as you work and our policy is if you've been out a year then you've got to do all these phones my question is i wonder though i never said we have ever let anybody return to work after it's been out for more than a year nobody ever said that's ever happened the you understand doctor he has to do all these functions and they sent all three are you know so that they get those answers from the doctor jada there's two things i've looked through most of these letters dr gillis sent there's a couple  things that i think are inconsistent with a finding of disability discrimination that i want you to respond to one is towards the end she gives i think it's your law firm she gives an extension and says the deadline is here when you say any more time ok i'll give you an extension before i close this which you try to complete it and then she also has i think opposite counsel mentioned early on she was she reached out to your client when he just hadn't done anything which seems to be if she really was set on him not returning to work she just w she wrote that the cheap been uncooperative is no then and there except she says that the very first thing he started immediately when he get thing in july taken his records up to the the superintendent and then there's a day summer letter in there that he wrote and said here all  they had to let him out on lane and they had a minute we don't know any details about what it was but they were apparently allowed after he didn't respond a certain time to so i'm certain she was going to do anything to get her in trouble with  that is another way of saying you want information about whether he has an empire but that substantially affects his everyday life activities every one of these letters just about has the work product just like entitled so the fact that they would use the word chronic and we want information about not telling for that she say they're doing this because she really wants to find out where they can go back to work or she's doing it because she wants to delay it as much as possible and maybe discourage you from ever coming back to work and to me that's just a question for the jury it's a state of mind that the jury ought to be allowed to just thank you thank you both for your help understanding this case called the last case