disability discrimination case where on cross examination during deposition the decision maker testified that the reason mr todd lost her employment was because of his the next question that it was that what he meant was the risk of harm arising from her psychological impairment however this is not a case where would have to draw that inference because the decision maker himself clarified that effectiveness in his mind was defined as the risk the future harm arising o psychological impairment there now for if if the disability is a psychological condition wouldn't direct evidence require a statement i fired miso and so because she was has a major depression disorder not that she has a she has a a risk of harm that's associated with someone who has major depressive disorder or risk of harm because of what she said but that i fired her because of her disorder isn't that direct evidence rather than the extra step that has to be taken of associated the risk of harm with that and that that means that it was because of the other thing in other words there's a still a step that has to be taken no you're on two cases from the supreme court make that clear  risk of harm caused by disability or which they believe is caused by a disability that's the that requires them to prove as a firm in the sense that the individual was a direct threat threats from a psychological illness rather than i am firing you because you are disabled first your st of all your honors there's two questions there  either way the employer would have to prove in order to say that this is because of the risk of farm arising from this psychological direct evidence issue you started by saying this is a direct evidence case and you want to talk about prime aphasia case and defenses and pretext and i understand that and we can talk about that but before we get there the alternative way to prove your claim is through direct evidence and you said this is and my question to you is is that not an inference at least one step removed from the statement i am firing you because you are disabled from i am firing you because you risk of harm associated with your psychological disability i do not believe so your honor and that is in part based on language in our line where the supreme court said that one of the primary purposes in that case if your father for the rehabilitation that was to combat the perception of harm based on an individual's  diagnosis of a medical condition and that face tuberculosis that was not supported by objective medical evidence and that was clarified crack there's no doubt that that's true counsel there's no doubt that that is that  is true but that doesn't really answer the question and if i understand our definition of direct evidence it requires zero inference even a reference to someone's race and or in a race discrimination case or gender in the course of discussing they're not being hired or not being promoted is not enough unless there is zero inference that can be done from from the statement to the reason why this person was fired because of and i'm just i'm having a hard time y versus parker through the th circuit it was direct evidence that any employer racially segregated its workforce because the employer believed that this would be beneficial estimates well the employer says we did this because of a benefit in communicating with customers and in explaining the the communication with so in this case we have a d statement that it is based on i mean saying that it's based on a risk of harm arising from her mental impairment is the same as saying that it was based on his fear of a risk that there would be harm arising from her middle impairment and his fear was without medical debt goes to whether it's a real reason or not not not if it's not inferential that that's you're just seem to be mixing apples and oranges let me ask you two other questions before i stop on this topic that we have cases for instance scott versus suncoast beverage where we said we will burn that black ass and quote was not direct evidence and wilson we said the quote even though women aren't typically in that type of position we'll see what happens when you throw your name there at the corporate for promotion case was also not direct evidence i just have a hard time seeing where we've said that those aren't direct evidence for this is that's number one and then number two do we seem to isolate this one snippet of a very large deposition and  include any discussion of the affidavit but when we look at direct evidence do we not look at sort of the whole together or the context in which a statement is made rather than just a snippet of a very short deposition where you sort of gone on and on and on about the reason why someone would fire your honor as the witness admitted he had prior to the questions of simply summarizing his motivation he had acknowledged half a dozen tied to his perception about her psychological impairment now that perception could have been risk of harm that perception could have been i don't want somebody with this disability in my workforce but it was his perception about the disability that was not tied to any medical evidence that was the issue i would contend that that is direct evidence of disability discrimination i would further contend that it was strong circumstantial evidence under the law martin and that line of of decisions to me like it was if you read it in context what he was saying was you know based on the threat that she had already made and continues to make even after her her psychologist clear her that she could not be effective that it was based on her conduct in the form of these threats that she kept making as opposed to based on you know the fact that she had this metal condition  that's what it that's what it seems to me when i read the entire deposition in context but it sounds like you disagree i wonder if you could direct me to where  evidence you know not in isolation not one lie and isolation but where in the deposition would be the best evidence of what your position is what was expressed of her deposition where he discusses with her talking to her health care providers whether they can make sure she's taking your medication and that he wanted to decide you relate all of that i think strongly revise the convention this is based on as a place as opposed to based on his perception question that the extent to which his decision is based on his beliefs about what he had been told d or his belief that what he had been told was was there's a there's a difference between what defendant argued and motion for summary which is the plaintiff was not otherwise qualified and this subsequent argument that well it was based on the conduct and perception of her conduct his testimony demonstrates that it was based on the weather for psychological or emotional  with respect to traditional sort of analysis the burden shifting analysis even if we were to assume a prime patient case it doesn't matter i mean it might nattering in making the pr the determination murder was qualified with the subsequent determination of whether it was based on disability and the other was qualified determination has to be based on undisputed facts not based on undisputed perception nd the testimony from superintendent and the notes of about the superintendent's communications and what he was actually concerned about we believe rebut that the subsequent post deposition affidavit in which he claimed that it was based on conduct because he did not talk about being based on harmed us talked about his fears i mean that the positive yes conversation and was talking about whether she was how could they be sure she was taking your medication etc he already knew about it please the court my name's brian smith i'm arguing for a penalty in this case there's a case where the district court determined the americans with disabilities act does not require a school district to return a middle school teacher to the classroom and place dozens of students under their supervision after that teacher threatens to kill themselves and their child who is a student in the school and expresses multiple plans and methods to carry out the murder suicide to coworkers who is believed to take an excessive amount of xanax at school and threatens to harm administrators of the school as is already i think been pointed out pretty well this is not a direct evidence case it might be if i guess it would be if the superintendent had said i don't care what her conduct was i don't care what appellant did i don't want teachers who have major depressive disorder working in the school district so i'm going to terminate her employment that would be a direct evidence case but that's not what the evidence in this case is here the superintendent said i can't have already past conduct does not qualify for the direct threat affirmative defense and find that the direct threat affirmative defense does apply here or defense does apply here then isn't that problematic for your position it's not implicated just because something occurs that could be characterized as a threat to somebody health or safety it's meant to be implied in cases that involve involve allegations of discriminatory applications of qualification standards rather than cases that involve disparate treatment which is which is this case i mean direct threat defense is an affirmative defense we didn't even raise and yet we continue and i don't know if i've ever argue much about a defense that i'm not maintaining that's a defense let me let me go back to your point as you raise a very interesting point and that is that if it goes to qualification standards for hiring not for someone who is currently employed or seeking another position currently employed not someone who is a good to be hired or seeking another position if that is the case do we have any case law which is applied in this context in th disparate treatment context for terminations or some other adverse employment outside of being hired or being promoted court where we have applied the direct threat to fan in the context of or outside of the qualification standards for hiring or promotion or some other qualification standard rather implicated when you're trying to screw an employer is trying to screen out potential employees from that employment based on claims that a disability busy that that individual has may make the job unsafe or them for that individual or for other employees so if you a employer who doesn't want to hire for example an individual with narcolepsy for a job that involves controlling heavy machinery around other employees because they're worried about the threat that may pose to the safety of themsel or others that's a direct threat case because they're screening out there they're basing things not on conduct it's actually occurred not based on evidence or a belief of what's occurred that affects their ability to effectively perform their job but instead they're soley relying on the fact that an individual has a disability and they're trying to screen out and terminate the employee solely or solely based on that disability is if you as if you said look you have this you have fill in the blank disability you have this mental impairment we're just not going to let you do the job it's not that you demonstrated an inability to do the job it's not that you've engaged in conduct that shows you ought to be terminated and non disabled person would be terminated for the same conduct but it's really looking at the having the disability in isolation and i think that's where it's legitimate to talk about the americans with disabilities act being concerned with inappropriate perceptions of of of disability i mean that's that's that kind of cases that direct right case that's not what we're talking about here this is a case where into play does it come into play at the prime of face a case stage when determining whether there is a quote unquote charge of discrimination or does it come into conflict into effect as a pretext age does it come into after the burden shifting has gotten done and do we have any case law discussing where that where it would enter assuming it applies not not in the th circuit that i that i found i think it comes more at the end because it's an it's an affirmative defen by the employer so it's not it's not necessarily a prime aphasia case issue it's almost a separate analysis and because that would have to to it would have to be a circumstance where there has been some kind of medical or objective evidence and some kind of individualized assessment i think it's almost a separate component of that traditional mouse if it were to be applied and again here we're not we're not even close to being in that realm so we're talking about previous conduct that actually took place let me turn just a little bit to what i think is more the main issue in this is not just you know we have to analysis is that what you're saying or if you have something else yes your honor that's that's what i'm saying this is just simply not a direct for a case it doesn't have any implication to the decision here and then we begin the more  traditional analysis with promise education legitimate nondiscriminatory reason so much much of what the the briefing by helen and those arguments really seem to center around is is whether or not appellant in fact engaged in the behavior that was reported but of course the issue is whether or not the superintendent believes she engaged in the behavior and it's undisputed that the superintendent believed that she threatened to kill herself and her child to two teachers on friday january th two thousand and seventeen she made the same threats in a more explosive manner the following monday to the same teachers she made a statement multiple plans and methods to kill herself and her child she took an excessive amount of xanax pills at school that day and a little over two months later made frightening statements to another teacher that indicated a threat to harm administrators at the school where all these individuals worked and as the court this court has made clear in the l rod case you can assume that the complaining employees were lying through their teeth stage because if in fact those employees were lying and she could prove that they were lying and she could prove perhaps that she was qualified but that prete gets to the crux of where to analyze and it what part to analyze this kind of this kind of case where you have behavior that will presume was caused by a disability but determination was still based on that conduct  but there's not a factor maybe there is about whether the decision maker here the superintendent believes that the conduct happened without getting into too much detail of all the facts there is there are there are differences of factually of what appellant says happened and what a police says happened factually it's not that there's a total and complete disconnect because there are some things that that appellant acknowledges but but not certainly not the complete report that was made by the teachers and not what the certainly opposes what the superintendent may have believed happened so this is partly gets to what opposing counsel was discussing with some of these some of these other cases having the factual dispute involved and those cases where there were no factual disputes where it was clearly acknowledged and there was no dispute as to the behavior i think those were the cases that were analyzed more than not otherwise qualified standards and that makes a little bit more sense when the facts are undisputed i think the better approach is that that was done in the system case in the nd circuit where you're looking at where there was a legitimate nondiscriminatory reason to terminate the employees and that's the phase of the analysis where it doesn't matter as much as if there's underlying facts that are disputed is what the honestly held belief by the employer is and the conduct here certainly meets that standard so so  there's no allegation that the superintendent wouldn't have taken the same action if the same conduct was was took place by non disabled teacher if we would it would result in the same outcome and there's been no objection there's no been challenge challenge to the report recommendation of the district court's determination that there was no evidence of pretext and that and that  s standard isn't met in terms of it being a legitimate nondiscriminatory reason for this terminations so there's almost kind of a circuit split but it's not it's not as it's not as a parent it's not as explicit it's just in the analysis of those cases from the th circuit from the nd circuit and some of the cases in the th circuit that we've cited as to whether you're you should analyze this under not otherwise qualified standard or later on as as a pretext the ultimate issue in these disability discrimination cases is whether or not the action was taken because  with that idea in mind and clearly it's not the case here that the superintendent believe that these behaviors were engaged in by this by this employee is certainly a legitimate reason in order to have that terminations without regard to any any necessary fears of whether it would happen again it's also about the conduct that already happened and that's what the superintendent i think acknowledged in his in his deposition and certainly acknowledged in the affidavit this was about whether she could continue to effectively do her job but also about how this is affecting how this would affect as he put other variables in the equation that it's not just about the teacher it's also about how effective they are in conducting themselves in their duty and responsibility as far as teaching so when a superintendent having to make this decision this decision this determination when you have this kind of behavior you're looking at a superintendent as to whether to put student dozens of florida versus arline i'd like to read this sentence this is goes to the question of whether the perceived risk of harm arising from a disability is the same as basing the decision on the disability the supreme court said it would be discriminatory treatment within our line the supreme court made it clear that the place at which a direct threat comes into effect is after the otherwise qualified determination and that's the reason we've raised it because defendants motion for summary judgment soley argued that plaintiff was not otherwise qualified to counsel counsel this is robert lock so that  had honestly believed that these things happened and that that was the reason why that he fired them now there may be other things those as just rosenbaum said that would create a genuine issue of material fact some pretext but regarding the direct threat if you're right it only goes to the except your honor the superintendent's testimony as to his motivation was not that there is a past history of misconduct but that there is a future risk of harm because of the disability rosenbaum discussed and that she asked you this question the context of the deposition affidavit seemed to be that the past conduct informs his discussion of effect of this and whether she was going to be a harm if she was brought back into the by what they wanted to do was have her committed to a middle institution they then questioned whether her psychologist was the appropriate person for them to be communicating with the with about the extent and risk of harm it believe that they were aware that she had a psychological disability and that's understood no it is argued the contrary but whether whether they believe that she in fact did those things i don't think is dispositive considering that they didn't claim this is based on her past misconduct i don't care what kind of a problem because then you could never take employment action against somebody for what they had done in the past i mean isn't that kind of a problem i don't believe so your honor because  against people because what they've done all the time without concern about whether they're going to do it again i mean there's i've been practicing for the last thirty two years and most of the cases are you did this and as a result you are going to be fired and we're not going to consider whether you might do it again just like i mean that did it isn't that effectively what the district did i mean know you threatened to kill yourself and your son we believe in life i understand she she says she didn't do it but we believe it in good faith and even after your mental health professional said you're ok to return to work then you threaten administrators blind and so we think that you're not qualified to be able to control a classroom and have control over and responsibility for a bunch of students i mean why is that why is that a problem st there's the record of the specifics of  what dr barrett was told he simply says that he relied on this robertson's investigation parts of that investigation will never reveal things covered but that the more important issue is that you know if the individual that to whom is ms allegedly made this threat toward  cod was trying to communicate with the principal and couldn't the community principal wouldn't respond to her efforts a communication about clearing her classroom out since they would let her come back to work her question was scared of what your client said and that she took it to mean that that your client intended harm i mean that's what she said now you're absolutely right that that might not be what she meant and that she was quiet might that there's a real issue with relying on their claims belief in the absence of any personal investigation or communication with miss todd and the fact that not  psychologist say she was fine but the inpatient treatment facility to which they referred said she was fine and the superior court that was dealing with the b disability and we would rely on the brakes on the questions of retaliation and interference in refusing to return her to work during that school year