genuine issue of material fact which loued summary judgment as to whether or not the appellant's terminations is based on her disability the policy at issue and discussed in the district court's  decision was not in fact facially neutral as it was determined it was not followed by play and it was not violated by the appellate the record evidence supports this finding and therefore supports the appellant's claim that  there was a detailed explanation as to how she followed the policy the steps that she took as far as notifying a of her disability and of the medications that she was to gain but in addition to the the the fact illicit or illegal drugs and have a secondary portion of carb our caviar for individuals who are taking prescribe medications essentially creating a cabbie up for people with disabilities to notify the employer that they are taking medication which therefore notifies the employer of possible disability and allows them to essentially create an exception if that individual does commit misconduct based on their medication to allow them to continue their employment that portion of the the policy was not  focused on in the lower court they kept reiterating the first part despite the fact that we all agree that the issue at hand is that miss coppery was taking prescription medication new prescription medication on the day that she was terminated there was no allegation at the time of her terminations by her manager that she was taking illegal or illicit drugs believe the appellee mentioned you would put th burden on the employer to make that and determination was a was i believe in going to put it on themselves by making all policy to fold so if it was if the policy in existence was simply that first portion which state report to work or be under the influence of alcohol or drugs or controlled substances then this would be a different conversation but they saw fit to make a cab and state however if an employee is taking prescription drugs they need to based on that policy the second portion of the policy the appellee created their own burden to begin the interactive process with an employee so the accommodation would have been  that well for her it would have been either she needed to change her shift possibly because the issue was she said she took her medication too soon to her shift so maybe just if she needed to start later in the afternoon if she was starting to take her medication in the morning or if she needed additional did not make their requests for accommodations the employer created their own burden but i mean now you know when you i mean you know more about this in the law and i do but i understand when you're making a fair to accommodate climb you have to say this is a comma deshaun that should have been made i mean where in your pleadings do you say this is the accommodation that should be failure to accommodate claim but i mean that is part of the plus i just want to be very clear on this point you are not making a value to accommodate a claim that's not what's before us today dr have that right ok let me ask the question this way assuming for the purpose of my question that you've established a prime aphasia case of disability discrimination we then go to the next steps of the mcdonnell douglas analysis and the next step is whether or not the employer has offered a legitimate nondiscriminatory reason for the termination not a heavy burden under the case law and if indeed they have met that burden the ultimate persuasion and going forward mergers at that stage in you've got to show in substance that the reason offered by the employer was pretextual no dispute about that analysis right ok is there any dispute that there are about whether travolta had offered a legitimate nondiscriminatory reason to would that she was intoxicated have work you don't dispute that there was a legitimate nondiscriminatory reason or for do you ok tell me why a claim of intoxication wouldn't be enough to establish the burden that they have we've said quote the burden is exceedingly light the defendant need not persuade the court that it was actually motivated by the proffered reasons is sufficient the supreme court of the united states says and bird it is sufficient if the defendant's evidence raises a genuine issue of as to whether it was discriminated against the against the plaintiff why wouldn't there have been a basis for the district court to conclude that they had offered a nondiscriminatory reason maybe it was that we always and maybe it wasn't but on its face the reason of intoxication was a legitimate nondiscriminatory reason i i'm having trouble at that price i thought the heart of your argument is even assuming that were the case we've shown that that reason really was see that's where i would have assumed you'd fight your battle rather than on the second prong because it seems to me almost undeniable that intoxication at work which is proffered as a reason is a legitimate  nondiscriminatory reason what am i missing here that she wasn't terminated for intoxication she was terminated for being under the influence a prescription medication showing up to work taking your legally prescribed medications not intoxication succeed under the final portion of the burden shifting argument in that she didn't violate the policy which can clearly be proven by the record and so therefore that  supermarkets it says that when an employer relies on violation of a work rule as is the case here a plaintiff may show pretext by submitting evidence demonstrating that she did not violate the cited work rule so i think by proving that she notified the employer of her disability and taking medication in april and may proves that they were on notice of her use of medication prior to starting work that day  hold on one sec so that case also says and you can tell me if i'm misreading it or you're misreading that same case as an employer who fires this is a quote fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for if it was a mistaken and honest misunderstanding but based on the manager's own statement he knew she was under the influence of medication he did not say that she was fired for illicit drugs which is what the argument is trying to be presented now he said on a number of occasions the only written record we have since he's on a wall an e mail from him that states she was under the influence of medication does not say she was under the influence the court my name is christina wright and i am my colleague kendra back with represent pull in mexican go mexican girl excuse me i would like to briefly respond to some of the things opposing counsel just brought up  first the argument as to a face that the drug policy is not facially neutral that's an entirely new argument it certainly wasn't raised in the district court i don't believe it was raised here on appeal and it's i don't believe it's preserved at all i think the district court correctly noted that this is a disparate treatment case if anything and not a disparate impact case regarding to police policy can you while you're talking about preservation can you help me i could be way off the reservation here but is the was there ever an argument made in the no it's been my impression from reading this that that was never really teed up as an argument that the district court but i could be wrong about well i agree with your honor that it was not it was not made in response to most and for summary judgment  really in any form i think there's approximately two paragraphs worth of response to our legitimate nondiscriminatory reason for her terminations and pretext and i don't think any any of it involved what opposing counsel has referred to as the second paragraph of the policy i believe that the plaintive i did not follow the guidelines in the second paragraph of the policy but the reason she was terminated is because she violated to police policy which prohibits employees from reporting to work or being at work under the influence of drugs controlled substances or alcohol that are to your belt because i think that's an interesting thing about this case you know putting aside was been argued about the case so for me it seems like to me there is a a generally applicable neutral employment rule you don't come to work in top intoxicated and  she seemed to me she tried to do the right thing so the question that seems interesting to me is what happens when a neutral generally applicable employment role affects somebody with a disability in a way that does cause disparate treatment as i mean it seems to me what we may have here whether or not it was raised i mean how what's your thought about that heads up about what she claims were adverse effects of her medication she had a conversation with mr my eyes on april where she told him that she had bipolar disorder thoughts and disputed during that conversation the plaintive testified that she did not tell mr mize all about any medications that she was taking for bipolar disorder that those medications could have any effect on her work that bipolar medications in general could have an adverse effect on anybody and for the record that testimony is that appendix volume two page two thirteen ok then he gave her time off when she when she changed her medication certainly then doctor's note says after having these few days off to adjust i expect that the plaintiff will be fine and it doesn't say excuse me it doesn't say anything about side effects from the medication well let me just maybe you can help me with the framework so would assume just as a matter of law where a neutral generally applicable employment rule has a bad effect on somebody because they are disable is that a violation of the americans with disabilities act i believe that the i agree with the district court in when it noted that the majority opinion is that an employer is not required to excuse misconduct just because it might arise from a disability i believe that that's consistent with the objectives of the eighty a and it was a no it's not about i said no it's not a violation that we have to answer that question strikes me that that's a real hard question  close question but if we assume argue window that there was a prime aphasia case made and we assume further that you've offered a legitimate nondiscriminatory reason that is intoxication in the workplace at the time then the whole case boils down to whether or not she has sufficiently discords information that suggests pretext tell me about pretext so in this case or in any case the point of could have established a pretext by offering evidence that her terminations was motivated by discriminatory animus or that the reason was false in this case specifically the plaintiffs failed on both counts and there is no evidence that her terminator was motivated by anything other than her violation of policy it made it to coming to work dizzy disoriented incoherent unable to perform her job admitted that she should have been sent home admitted that if an employee comes to work intoxicated that's an appropriate reason to terminate them there is no evidence that the reason proffered for her terminations was false and in fact the pla admitted several times that the reason mr michael gave the he believed that she was intoxicated at one point he would use the word in the braided under the imprint under the impression that she was under the influence of drugs all of those reasons were the actual reason there's no there's no pretext for disability discrimination showing here in this case because having failed to even make a prima fashion showing this court can affirm the district court on that basis alone and i would note on the district court at appendix  page forty three found that the plaintiffs did not dispute her violation of the policy and indeed she testified that she took the medication before coming to work and that the medication when she was out work was quote messing her  and then admitted shortly after her terminations in what we want to poll a cause respectful workplace complaints that she was under the influence of pursuit of a prescription drug while she was at work and of not made to the district court and going a step further she did violate it she's admitted to violating it so even if you would like to consider her argument now if fails and then unless there are any more questions from the court i think i'm having like a motherly moment i mean it's you know it just seems like there was poor communication all the way around i mean supposedly had an employee they liked they were watching her for management she she didn't handle her end of it perfectly and this is has nothing to do with the legal arguments being made but just in terms of how we're all spending our time on this and then on the other hand if a little bit i mean on your and your clients and you know if a little bit of attention have been paid to what was going on with her and try to help draw out from her what was going on maybe this employment relationship could have been saved and maybe that would have been good  certainly and i understand that and i guess it's true that i'd like to stake take many steps back and just remind i guess i have to remind myself as well in these cases the planes it was an at will employee oh no i mean which meaning i understand the legal arguments so i guess that's where i'd fall on that unfortunate maybe so i really chipotle is limited it can fire its employees for any reason no reason orrible reason except for that they have a disability as long as it is not discriminatory and in this case it was not thank y it's clever you've reserved three minutes let me ask you a question if we were to go to the prime of facial question rather than assume that you met your burden on that issue the courts are split on the question of whether determination based on conduct related to a cause by a disability constitutes the unlawful discrimination the majority position seems to be that an employer may discipline or terminated an employee for workplace misconduct even when the misconduct is a result of or related to the employee's disability the fourth circuit said it the fifth circuit said it the sixth circuit said it the seventh circuit said it and we noted our approval in an unpublished opinion saying the same thing although we said in j a m versus nova southeastern university no we wrote is not required to excuse past misconduct even if that misconduct is linked to a student's mental disability citing to how poor and which was the fourth circuit case on that matter why is that wrong and why is the better position the position taken by the tenth and second circuit and they take clearly a different position and the ninth circuit has kind of a different twist on it but why is it if i'm right that that's essentially a minority position and if we were to address it and why should we not align ourselves with the views of the fourth fifth sixth seventh circuit on that issue the reason that it should be found that disability related misconduct is in fact a disability in and of itself is specifically due to a case like this one where someone is doing everything that they are supposed to do with related to caring for themselves and trying to handle their disability a good citizen in society so holding someone accountable for the fact that especially with a mental illness that they're going against the stigma they notified their employer the thought psychiatric psychiatric treatment they're taking drugs to make themselves level and we're going to hold that against you it just goes against the grain well what do you do with a case like the one that came out of the six circuit in that case the case i'm referring to is bro versus props in the case the plaintiff was an anesthesiologist who had sleep apnea and he was dismissed for sleeping during the surgical procedure there was no question that there was a connection between the disability and the underlying discipline or terminations of the case and yet the six circuit rule the way it did for all the obvious  i believe the difference in the cases is that the individual did not notify the employer of his disability prior to being disciplined for falling asleep in the workplace so that's the distinction here is if they're aware of the  ability they're aware of medication then there was one that came out of the seven circuit despairs versus milwaukee city and that was a maintenance worker who suffered from alcoholism and whose job required driving was dismissed for losing his driver's license after driving under the influence and again they took individual the disability issue in that case is someone who's addicted to illegal substance i think that there needs to be a distinction made for those it's still a disability i'm not disagreeing with that but there needs to be a distinction made for someone who's doing falling asleep in surgery the employer may have a right to have an eye and right get treatment a medication so that's the things i understand thank you very much thank you both for your efforts we will be in recess until nine am tomorrow morning