and then terminated because macleod thought that she might hurt herself when she was traveling off site in pursuit of the story but she had done her job for twenty eight years without ever once falling in pursuit of a story in the way that the cloud had feared cloud wanted to protect her so it took away her job and this is exactly the sort of paternalism that the a t f seeks to prevent a jury could have easily found that macleod violated the a da in three separate ways  first in forcing ms whitman to undergo the two examinations second in forcing her to undergo examinations that were not tied to or essential job functions in third uncritically relying on below but we think that summary judgment was inappropriately granted to mcleod because there is a question for a jury in each of these first the jury could easily have found that the exam was unjustified  for a employer to have a justified requirement that an employee undergo a medical exam the employer has the high burden of showing it has a reasonable belief based on objective evidence that they the condition would impair the employee from performing the essential functions of the job position or that the employee poses a direct threat and here a jury could have found that the cloud didn't find either that the best indication of whether an employee is able to perform a job is the employee's experience performing the job here we have twenty eight years worth of data saying that she could she never once fell in the way the mcleod asserts it was word so first case so should you prevail on the second issue because i think we each of these issues independently creates a violation of the eight yeah but i think we should also prevail on the second issue  based on the nature of the exam i mean did i think the instruction for the the court below be useful to explain why it is that the exam was not tied to her central job functions in this case ed as you i mean have a talk about that briefly if i could in this case the examiner or the mr leber taipei he didn't take into account the clouds assessment of the job which said different the difference between your two claims don't they really collapse it seems to me that if you show that the there was no valid basis for requiring her to take this exam relative to her job performance and she was  under the facts of the case really once the ball started rolling here once she was forced to undergo the exam that the exam was in appropriate given her job and given her history of job performance and then the termination was inappropriate can't be fired based on an exam shouldn't have been required first that's exactly right ok i guess so just if i could finish up with the exam it wasn't tied to her specific job experiences and he never asked what her experiences were he assumed that she had recently begun to start falling when in fact she had been falling for the entirety of her career macleod he never asked whether she agreed with his assessment of what her job required and in fact she said no if that was far twenty years of experience into account he's really not doing what the senate said in its report back in one thousand nine hundred nine he needed to have done turning to macleod's reliance on the report here as a separate path to finding an idiot violation both the justice case that we said it in the holiday case that we cited stand for the proposition that a medical opinion when it's facially unreliable when there's something about that opinion on its face that is not credible or maybe indicates a lack of objectivity then even in the absence of a countervailing medical opinion an employer still is not justified in relying on that and that's exactly what happened here the report was unreliable in several ways first in saying that she was restricted to a ten mile radius he didn't explain why going off say within nine miles would be unsafe for her but eleven miles pushed the boundary too far and then twenty miles and fifty miles would have been a bridge too far doesn't explain that and it really sort of strains credulity to believe that that would make any sense in addition he said that she was a high fall risk seventy five percent of job when asked where he got that seventy five percent figure from during his deposition he said well i've been told she's falling at home falling at work falling at lunch one to three seventy five percent it made no sense and so macleod cannot just say that they were relying on this inherently unbelievable assessment and avoid liability just because there was no countervailing assessment in addition that assessment of being a high fall risk that contradicts what he had said five days earlier in an e mail immediately following the exam that she was only a mild to moderate fall so in each of these ways macleod should have seen this was not a reliable report to what extent am i to what extent woods do we consider the fact that you have mis wendler in there saying well she seemed to have a decreased enthusiasm for her job but didn't really specify and maybe some employees had seen her sleeping but never verified that how does that factor into the mix of the disputed issue a fact is that creative question of the employer's motive in terms of requiring a sig sam that they were trying to get rid of or did is that a included in the next but you don't need to be solving case that we cite says that really the motivation doesn't matter the key thing is that there is a reasonable basis based on a reasonable basis for an objective belief  on objective factors that there's a reason to think that the employee can't perform the central job options it doesn't matter what the motivation is and here in addition at with respect to what  said she brought up this alleged problem with her performance well first that's a disputed issue of fact because her most recent performance review which occurred eight months before she was suspended said that didn't bring up any of these alleged problems but miss when the testified that this in fact been going on for a year and a half so the jury could hear that and find it questionable but even if the jury found that there were these performance concerns the a p is clear the performance concerns should be that were dealt with as performance concerns the employer should not assume that when an employee with a disability has these performance concerns that it must be related to the disability instead they they should deal with them as performance concerns and in fact that's exactly what ms carr the director of human resources told this one lawyer in this case said no you should talk to her and if it requires counseling counsel her but don't assume that  it was related to her disability and that's exactly what the f d a use for it's to allow people with disabilities to perform their jobs without this stigma without th that if there are performance problems in must necessarily relate to the disability in our guidance actually is very instructive on that it goes through when how employers should balance these competing concerns and it's very clear that new cases like this where she might have lost enthusiasm she seems not to have that same fire she doesn't have the same team spirit that she had before that's not attributable to the disability that should be dealt with as a have the right to test second what is the standard for determining whether the scope was appropriate and the third is that once you once you have the results of a medical exam what what does an employer do with it and what is the standard for review of an employer's decision based on a test this all goes to the issue of whether an employer has the right to test it goes to whether the test is job related consistent with business assessing the e e o c these regulations their guidance and the four circuit all articulate the same standard which is did a cloud have ject if it's that in this with may not still be able to perform all of the essential functions of her job or do so safely where is the evidence in this record that the ability to go to other campuses was an essential aspect of her job here like did to go to other campuses but where's the evidence in the record that she had to do that as a condition of employment yes ma'am your honor the you can find it in two places first whitten admits it and her testimony and she said it was preferable to well she said that she said that she was never specifically told to go she believed that that was what she was supposed to do to go to the other campuses her her charge is to report the news of mcleod to tell the story of mccloud mccloud is the way it worked was she started in the p r department working for macleod news that role moved to h r she was still doing the same job and then and then she came back to the p r department reporting to demand a swindler starting in about two thousand and four but surely time shift and this is what really obscure songs me about this case yes maybe only time she fell at the workplace was when she tripped over a rug at the entryway which anybody can do and how does that form a basis then for requiring a person who had done their job for so long to undergo these medical exam swindler reported and i think it's important to note that amanda swindler did not make the decision occupational health made the decision based on the report of jamaica swindler and the case law in the fourth circuit says an worsening in walks of a short distance she was sweating profusely and was flushed and her face was almost and all the records show that in a swindler had any medical training i don't believe it does but that gets to the heart of what she was doing this she was reporting facts to occupational health the record shows that occupational health and consulting with the doctor at occupational health said this is enough to have me concerned that ok well where is the logic to that if she is going to be falling if she's going to be safe within ten miles why wouldn't she be safe going from her car to a building fifteen miles away familiarity and that is consistent with mis witness testimony about what causes falls of the more familiar you are with the area the less likely you are to fall statistically i think what's i think what's missing here is the the the easy as case fails to take into account the fact that macleod grew rapidly actually the when she started the job there were no other sata like campuses all this growth happened while she was in the role and she was the only person doing the mcleod news everybody else in the p r department is responsible for other aspects of r marketing and those types of things she's the only one that's supposed to tell the story well our bertie's decision was it all has to do with familiarity she is not familiar with those other campuses she is not familiar with the outer lying areas no one there is familiar with her and understands her condition if we keep her local where people know her and she knows the environment she is safe or that she had fallen on any campus she took that one trip in on the rug inside the building but she didn't fall on any campus within twelve in within ten miles where she felt she fell at work right she fell she tripped over the rug entering the building right yes me ok but there's no issue if she's just doing reporting and doing the harvesting of stories on the mccloud campus there were devices that could be used that would allow her to  as i'm sure all of the panel is familiar with hospitals they are huge so it's not just about driving the car to a campus to tell a story the she she doesn't she doesn't harvest the story from her car once she gets there she has to get out and am be late to whatever the location is and this not just the hospitals as parks softball fields it's wherever the mcleod news is happenings that's where she has to go the the problem that everyone ran into in trying to figure out whether she could still do the job with accommodations was what she got to these other locations what assistive device w she have with her that would allow her to ambulate and what she was saying it in her conversations with macleod she says and macleod says that they were talking about the only difference in them in the record is miss wynne says i never specifically came out and asked for it we just had discussions about well if i had a scooter or something like that i could get around the florence campus but what happens when i go out i'm going to need a van i'm going to need somebody to help she admitted that she would need some accommodation in order to do the job she admitted so whether whether she wanted to fill out a piece of paper or not is irrelevant to her when compared to her admission that i think there's there's two things i would like for the court to keep in mind first there is no evidence she was doing this job as it grew for twenty eight years as i said there were no other satellite campuses when she started  was very small compared to what it is when she was out of work and the second thing that i think is important and i think this goes to the crux of why the sea felt passionate about this case but why their logic fails the whole the whole premise behind the e e o c is claiming is that she's had the same congenital defects for her entire life and so if if she could do it at the age of forty that means that she could do it when she's sixty twenty years later that that belies common sense and maybe yes maybe no well maybe she's just says  s agile at sixty many people are maybe but here's the point of the a t f if an employer has an objective basis to believe that conditions have changed that she's maybe not able premises once at work once in a park she could easily have to do a report from a park and once was on her lunch break she was a salaried employee i'm not sure the record is very clear on whether she was on the clock or off the clock but it i do admit that she was on her lunch break in the middle of the day when she fell at a restaurant when you fall in a park and you don't listen you work and when you trip and fall in a rug on the employer's profit premises and you don't miss any work and when you fall at a restaurant and then you you go for an x ray but you go back to work the next day how is that evidence that she can't perform a job and i mean she she wasn't calling in sick soup wasn't saying i can't work as a result of these falls in order to do the exam we either have to show that we had objective evidence that she may not be able to perform her job in a more war do so safely and i think that's the the second issue that we have here is there seems to be from the e e o c his position that falls are no big deal falls are a huge deal we've all been watching the news with one of our justices who fell the older we get the more dangerous falls become actually the c d c issued a report in two thousand and sixteen that said the number one all risk for persons over sixty five or the number one risk for persons over sixty five is falling is falling when you when you couple death and serious injury all is the most serious threat to the agent so the whole point of this is the fact that she could do it and it wasn't the same job but the fact that she could do it at forty does not mean she can do it at sixty and lalla bertie's point is also missed here is he doesn't say that the fall risk and the and the threat of serious injury is solely because of her congenital defects it was because of a severely deconditioned state but in the end if the court finds that there was objective evidence of whether or not she could still perform the essential functions or do so safely has a right to conduct the medical exam once it conducts a medical exam and it receives an opinion that she cannot perform the essential functions of the job when you look at the direct threat standard under the regs and in the guidance what it says is that an employer has to reasonably rely on the medical evidence at the point that exam was actually obviously if there is an issue that i think the court should consider it is the fact that it is the only medical opinion of her abilities or inabilities in the rec show you talk talk about twenty is neutral in this case if someone were to assess risk of falling the first day she came to the door falling is always been a part of my life all of my life and there's no way to get around for twenty years is i know her disability she came to or she did that and now you've taken what she had which is a risk of falling twenty eight years later so that's a reason why we now going to examine you this hour we're going to perform your job this is not a case with some i just growing her risk of falling and the risk of injury has increased because of her severely deconditioned state what is d condition meaning she is completely out of shape is weak and cannot handle the weight load that she's carry but what about the fifty pounds whe that he went through a progression of reviewing the job description discussing the job with demand a swindler the manager went to the job site to that she normally would type reports and things like that and looked around and measured everything and then interviewed sweat whitney herself he says that the weight load that he determined was based on what wit and said that she did on a regular basis witten gave him the the she told him the equipment she had to carry he says he measured that including your purse and that's where he got the weight load i actually think that this employer did more than most employers do when they do a medical exam and this medical exam was more careful to trying to get it as close as possible to the functions that witten did i mean the testimony is th quite clear he interviewed whitten found out what she did found out what she carried and perform the test based on what she said she says she doesn't remember that doesn't create a question of fact but she was an editor correct no what she pencil no note at it she says that she has to bring her camera she brings the equipment that she's going to use to do her stories there are events that she would attend i mean  birdie described it she's she's putting papers up she's she's stocking things she's getting stuff and stocked but i think that's what she wanted to do she wanted to move from being a reporter to just an editor and  order to tell the story you have to go where the story is that that's the essence of why of the record says there was a team you have reporters of the campus that well there is no no the is not record that the record is that there are other members of the p r department and they would give her ideas of stories but she was the one who needed to go interview the people and get the story and write it based on the interviews and what what the testimony is from swindler is that one of the big issues and the changes that happened in the last year was the fact that she stopped going and doing that she started to try and get other people to do her work for her and write the stories and interview people and just send it to her and the other coworkers were complaining because that was not their job that's what the right if there are no further questions than that thank you right so you have a few minutes thank your honor i just want to respond to a few of the points that my colleague made first with respect to the question about the essential aspect of the job that going off site and conducting these interviews was it wasn't in the job description and this court's cases in res you dean and jacobs both say that that's evidence that it wasn't actually a central function and second there's a difference between essential function and a preference for how that central function is accomplished and the case from the third circuit that we refer to are brief distinguishes between what the essential function is and a preferred method of accomplishing that essential function  both swindler and witten testified for a preference for in perth and in person interviews but neither one said it was an essential function second responding to the point that when ms swindler reported to occupational health and they believed her report that that sort of immunize what they did subsequently as i believe you're honest pointed out she had no medical background and she testified that part of her impression was based on her own family history of neurological difficult so that is an objective evidence as to ms whitman's condition that's her own sort of subjective gloss on what she's seen third with respect to the reasonableness of the ten mile radius this is actually the first i've heard that explanation of this sort of familiarity in the expanding campus but whether or not that's a justifiable explanation it's a question of fact that should go to the jury which is really what it would sort of underlies everything that we've we've been arguing  my colleague said that his witten said that she needed an accommodation and referred to the possibility of a van or a shadow to help her in fact in her testimony she specifically said she never made that  again that's an issue of fact there is no as your honor pointed out she's fallen once even with this expanding campaign expanding group of campuses she only fell once and that was that that's not an indication that she can't handle job as i believe the judge gregory is as you mention it's not that she's getting old there was no evidence in the record that her condition had changed no objective evidence  d see with respect to this idea about her deconditioned state the medical records in the in the records show that her weight her blood pressure and her pulse had remained constant over the last twenty years so there was again that's an issue of fact and finally with respect to this idea of the word team a communications team there is evidence in the record that some of these campuses had p r people locally and they would write up stories and take pictures and send them for inclusion newsletter that's what she testified to so that's not saying that she can't you her job that's just saying that this was one of the aspects of having the people working