related at issue in this appeal the st issue is whether or not dunn county violated the americans with disabilities act by requiring a fitness for duty evaluation for sergeant personals the the eighty a requires that medical exams if they are requested be job related and consistent with business necessity and the case law tells us the burden of proof on this issue isn't done county to prove job related and consistent with business necess the medical condition won't care in employees ability to perform the essential functions the job will pose a threat case law also tells us what is relevant but dense with respect to the burden and employer standard practice with respect to medical evaluations as relevant relevant evidence as to the inquiry here in the present case it's undisputed that the done county sheriff's department did not have a standard practice regarding post employment medical exams  let's take it out you know we're going to take it outside if this doesn't stop or words to that effect given issues of violence i'm having trouble seeing why of news for duty exam isn't job related and consistent with business necessity for somebody with of a public safety job such as mr kurtz halls even if the county had not been in the habit of doing this very often why and why were disabled from thinking this it and i don't disagree with you judge that leads to the the nd relevant evidence and that is whether or not there's a differential application of a medical examination requirement  we have two people involved in the same incident both are subject to the same rules of conduct we have the same decision maker involved both employees and both engaged in similar conduct well but maybe i'm not sure that they can't be argued to county pushes back a little bit on that last point they they regarded current salsas direct threat of taking it outside so to speak you know an implied threat of a physical altercation outside as being different from re simply invading social space and looming over somebody and pushing them into it you know or at least making someone back up read never touches anybody and he doesn't say he's going to the county you get on top of them when they're sitting in the chair you you swear an expletive at them you put your hand in their face so much that you cause somebody to back up into the corner when they're seated and then you refuse to leave the office that's an act of intimidation that that is not a threat that is an act that that is pushing somebody into a corner and so i  don't really i understand that dunn county has made that argument but i think common sense dictates that mr kurtz will saying you know if you do that again we're going to take if you say that again we're going to take you we're going to the parking lot is a little different than coming into a supervisor's office and backing him up into a corner while you're swearing at them and shoving your hand in the face so much so that the person who is in the office feels intimidated and threatened  in your view that it's mr kurtz who is in the supervisory position shouldn't the county be entitled to hold somebody to a higher standard they could have made that argument your honor but they did not there was never an argument in the district court proceeding that while we were hot we were holding him to a different standard the argument was also was always that while the conduct was different  and more importantly the sheriff said the reason i treated them differently is because i believed read and i didn't believe curt sauls that was his explanation in other words i really believe the employee who doesn't have p t s d but i don't believe the employer has p t s d and there's so getting back have i answered your questions judge i'm so yeah that's fine i was going to follow up because there is th briefly mention the other other evidence in the record regarding the standards which are reasonable belief based on objective evidence there was objective evidence that was ignored by dunn county and that was specifically captain big who was mr kurtz those direct supervisor who had the most contact with sergeant curt souls and his response was that mr kurtz was reaction was understandable and that he did objective evidence done done county hired an expert attorney with respect to employment law is shoes generally and the eighty eight specifically and that expert attorney both issued a written conclusion in an e mail and then verbal he talked to the corporation counsel that information was passed on to the sheriff and she and the kate and the attorneys many detailed at the fitness for duty evaluation was premature and the fitness for duty rip evaluation was an doesn't mean that you've sworn to follow every last word they had that is true however when you're asking for advice because as the sheriff said he wasn't well versed in one another but there certainly seems to be a hidden overtone that if you're asked to undertake a medical examination of fitness for duty examination that there's somehow something stigmatizing about that and i wonder if if mr kurtz had not only gotten his paid leave which he does and he got the twenty seven hours of overtime was he gotten you know sixty hours of overtime with it would we even be here yes we would for for a particular reason and that is it was particular state particularly stigmatizing to him and caused a reoccurrence of his p t s d because somehow the word got out that he was on administrative leave for three months because a fitness for duty evaluation and he had pointed questions from any number of individuals in the community about what happened as well as it was used by his wife and post divorce proceedings to try to take custody away from him so it was particularly traumatic and stick stigmatizing in this particular instance  ok the rd thing i just wanted to point out as to the st issue of was it was their reasonable belief and objective evidence is that county's own actions indicate that it did not have a reasonable belief that is it waited twelve days place and i believe it did not require him to turn in his service weapon and in fact it didn't prohibit or require prohibit him from returning from work or earth i'm sorry did pro that not prohibited him from going in to work the  nd issue is whether or not dunn county discriminated against mr kurtz as based on disability by requiring the fitness for duty evaluation placing him out leave just briefly the issue of disability the mr kurt souls clearly fits in the regarded as disabled pran if you were subject to a prohibited action because of an action or perceived mental impairment and he had an actual diagnosis of p t s d and he disclosed that diagnosis to don county which leads into the question i think your honor asked previously about who knew what that's it the this is a disputed issue of fact clearly even before kurtz was returned to leave captain big his direct supervisor contacted h r because he was concerned about psychological issues with combat veterans and he specifically asked about fitness for duty evaluation for kurtz was based upon him being in combat when mr kurtz was returned to work in two thousand and four he specifically disclosed his p t s d to captain big and captain big specifically told him he would provide that information to share smith which is what would undisputed i believe that mr kurtz is had multiple conversations with chief deputy gunness regarding p t s d after the initial conversation and so based on that i would submit that the district court properly concluded that if found so so then the issue is really the cause a an issue but for was this because of disability all of the same evidence related to the reasonable ness or meeting the requirements for the medical reserve the rest for rebuttal one of sheriff smith's explanations of the differential treatment of reid and kurt supposes as i said before that he believed to read and not hurt sales and there is significant evidence in the record that reid was known to be somebody who was a pot stirrer somebody of stretch the term truth and somebody else who had sour grapes against kurt sells and for so he had every reason to disbelieve mr reed and every reason to disbelieve m moreover if smith share smith believed reid he would have hired an investigator to investigate if kurtz was violated the policy just two other points and then at thirteen minutes i reserve my time for rebuttal the main point that d county has made in this case is that it could not have discriminated against mr kurtz was because he suffered from p t s d well a reasonable jury could conclude that this is false based on the evidence of mr kurt disclosures and if the if the jury concluded that the jury could reach conclude conclude that there was no reason for the sheriff's department to lie about the knowledge of disability other than to cover up the discrimination and that leads to my last point and then i'll leave the last rest for rebuttal there is this particular instance that occurred when mr kurtz of those came in to share into the office of sheriff smith and ch deputy mulled off and they told him that he was going to be placed on leave and that he was going to be subject to the fitness for duty and evaluation and mr kurtz will specifically call them out and said this is happening because of my s the p t s d isn't that and neither of them he actually said it two times neither of them responded at all they didn't give a verbal response they didn't give any response from that i believe a reasonable jury can conclude that that they were dissembling or covering up discrimination because if they weren't they would have said no it's not or provided some explanation i will reserve the rest for  you good morning your honor if i may please the court my name is way than what stand i represent the defendant appellee dunn county or specter this case the county maintains that the district court properly granted some a judgment as a matter of finding that the county did not the st being that the county unlawfully required a medical examination under the a b a and the standard as mr reinard indicated is whether or not the examination is job related inconsistent with business necessity the county maintains that in the context of public safety type additions won foresman positions like the one held by mr curtis hall's the standard is much easier to meet its a lower threshold than in the general population  think there i haven't seen any case law your honor that specifically identifies what that burden is simply that it is the employer's burden to establish that and i agree with the standard that it's employer to order one of these fitness test than absolutely jane well in the context of law enforcement where an individual like a certain curtness carries a gun he's intrusted with ensuring public safety and he's out there as a law enforcement officer ensuring that those officers are capable of performing their duty safely is more important because the consequences of sending an officer out in the field who isn't able  or pose a threat to himself or to others has more significant ramifications you know sending a social worker out into the field who doesn't carry a gun i think is a different scenario in this court has recognized that in a number of cases  instance the kaufman case that we cited to him more recently in the free lane versus village of oak park case from two thousand and eighteen this court has recognized that there is a different standard so with respect to to law enforcement in situations like this this court is even know that not only is it reasonable d for an employer to require the fitness for duty examination it's the responsible thing to do so after the incident here between certain cur dennis reed and i do want to clarify with respect to the confrontation itself mr ryan hard to you know is seeking to argue that the lead was intimidating and harassing the situation was this mr kurtz saw was behind his desk and mr reid walked into his office and it was a heated exchange nobody disputes that but there was a desk between mr reed and mr kurtz also at the confrontation and ultimately it was curt follows who made the threatening comments that the sheriff ultimately determined potentially violated the county's workplace violence policy so before you're requiring mr leach i'm i mean i've read about that and  i guess maybe interjecting a slight note of pragmatism here are you telling me this was the st time in the history of dunn county that two guys had an argument and somebody said use of profanity in the workplace had happened from time to time but what would distinguish this situation was the fact that mr kurtz calls made a threat and the statement that the sheriff or see it from four or five different witnesses who were all in the office when this happened all pointed to curt sauls as being the instigator or the aggressor in the confrontation and he was the one that made the threat there was one prior incident in the last twenty years in which another officer made a threat to to a fellow officer and that involved deputies easy as he's been identified as in this case and deputies e made a statement that you know you better watch your back you made it to two different officers in response to that threat just like what happened here the sheriff and the sheriff's department required deputies to undergo a fitness for duty examinations so we agreed that standard practice in past practice is a relevant consideration and even though the department didn't have a formal policy and luckily it wasn't a typical thing where officers are threatening each other and there is a requirement to do fitness for duty examinations but in the one prior case where that was the case the sheriff followed the same protocol that required just wondered if that was part of the consideration of why he might be the next examination because of that experience that was asked that was absolutely not a factor so mr before there was any knowledge of the p t s d to anybody within the county as mr rhinehart alluded to the chief deputy i believe it was asked to human resources do we need to have a fitness for duty examination because we have an officer returning from twelve years of military duty where he was in combat and the response from human resources was not so the decision was made at that point to allow him to return to work it was after he returned to work where he allegedly informed mr big and mr gunness that he had been diagnosed with p t s d but know that the the fact that he had military service or combat service was not a factor in the decision two years later while we're still on this this point i do want to talk a little bit about a case that was cited by mr rinehart the right versus illinois department of children and family services which is the primary case that the  relies upon to show that the fitness for duty examination was not job related inconsistent the business of city st of all that case involved a social worker by the department of health and family services who made a statement to a ward of the state that there were foster families available for her even though there wasn't and that through this child into a manic frenzy and resulted in a near riot within the department in that circumstance the court found this co found that if it is true that he was not reasonable but those are very different facts one we're not dealing with law enforcement or public safety type addition there was no threats made by by mr irvine ms wright and ms wright did not suffer from d contrary to what is alleged in the brief it was the the child the ward of the state who actually suffered from p t s d so i think it's a very distinguishable case there's a number of cases that we cited in our brief involving importance if any is the process the county used in coming to the decision that it wanted to fitness examination so i understand and you know dr compton get consulted and some other people get consulted and they decide to disregard the attorney's recommendation but don't they go through a certain process before coming to the conclusion that this is appropriate it was a lengthy process and that's part of the reason why it took twelve days before mr kurtz was placed on leave st off the sheriff did an investigation the statements from not only read in court sauls he also got statements from five or six witnesses he also consulted and talked to kevin appropriate mr kirk sauls was on administrative i'm sorry he was in training from april on april th out of town so the plan was to allow him to finish his training and then put him on administrative leave paid leave a soon as he came back when he came back two days early they immediately have a meeting d notified him that he was being put on paid leave and was ordered to undertake a fitness for duty to mission approximately five days later is when they st learned of the p t appropriate there's a reference to mindy dale well mindy dale was hired to do a workplace investigation into the incident of april st she was hired in late april which was after the initial request for the fitness for duty examination was already made by the sheriff and mr reinhard the knowledge is that the reason she was hired was to do an evaluation or a investigation into the incident of april st not to render an opinion as to the appropriateness of the fitness for duty now she did provide her opinion that you thought it was maybe premature to do so and ultimately the sheriff decided against following that opinion he had contrary opinions and many gaels opinion as the district court noted was the minority view and he chose to to proceed with the examination and then rescheduled it for a later date would that be enough to go forward in your view well that's only relevant on the nd claim which is that the county discriminated against him because of his p t s d and i don't think it was at least perceived  we don't believe there's enough evidence to establish that he performed his job functions to the employer satisfaction by engaging in con artist threatening another officer he was not meeting the reasonable expectations of the employer and secondly he also did not suffer an adverse employment action being put on paid administrative leave has been held repeatedly d by this court in the others not the constitute a adverse employment action he was compensated i don't know for some overtime hours though their evidence suggests he would have gotten something more like a minimum of fifty four hours twenty seven it's completely speculative what the what the county did was they looked at every chef that he could have requested or posted into during the two months that he was off work and that amounted to twenty seven hours per paul's argument as well there might have been some additional time that i may have had to work at the conclusion of my shift to finish up my work that we had more overtime pay in two thousand and sixteen that he did in two thousand and fifty and so to say that he was compensated or paid less because of the administrative leave is completely speculative the only concrete evidence that they had was the twenty seven hours and those were shifts that he could have selected and he had a right to select doesn't mean that he would have selected all those so if anything i think the county estimated on the high side by giving him credit for all twenty seven getting yes so after he was returned to work in july of two thousand and sixteen he was paid the twenty seven hours of overtime and he continued working for the department for another two years before he voluntarily resigned by the district court that this court affirmed thank you thank you anything for them to run hard yes judge i believe i have certainly less than a minute so st of all at me over time issue it was hardly it was hardly completely speculative we have the records in the record of all the overtime he worked before and after the incident there's testimony in the record i think it's an affidavit that much of his overtime was not related to filling other people's chefs it was related to him coming in early leaving late because of his duties as an investigation sergeant and that was consistent over three or four years so it's hardly speculative the only other thing i wanted to say judge in terms of the past practices of the county st of all this was as you pointed out one of only two fitness for duty evaluations during the fifteen years sheriff smith was the sheriff the other occasion wasn't similar and the other occasion the deputies e told his supervisor in a training officer that they needed to be looking over their shoulder that they weren't safe at work and that something was going to happen to them as well as engaging in other bizarre behavior and then the other point i want to make is there was an incident in two thousand and one  sheriff smith was deputy involving dentist read an excessive use of force where he body slammed a suspect into a vehicle it was reported to administration and no medical examination was required and i'll leave it at that judge all right  thank you very much thanks to both counsels the court will take the case under advisement