good morning you may please the court my name is annette reuben i represent grinnell harris in this case this was a case for summary judgment was granted in favor of the defendant in the court below this is a case arising under the americans with disabilities act and people who have in their past and who are irani asleep perceived as using illegal drugs but who are not or no harris can't change what's in her past but the law says that she is entitled to equal opportunity of employment the same as everyone else despite this history and despite this perception and despite the toxicity associated with those two things so the question before this core is did the defendant fire ms harris because she engaged in misconduct on august eleventh and to work under the influence of alcohol and drugs if they fire her as a direct threat to their workplace and rightly so that's their defense or did ms harris having had this in her past continue to bear the prejudice of this and this is a woman who came back to work too quickly after a concussion who had a fainting episode at work and who was immediately assume to be a gauged in inappropriate alcohol and drug use it and she had met that morning that she had had had alcohol and taken certain drugs no and i would and i would direct the port to the appendix at page one eighty five and one eighty petre into a set of cement steps a cement steps had a serious head injury they ran an m r i at the hospital she was having altered mental status at that point they ran a toxicology test at the hospital because they didn't there's a couple of things about these admissions number one what she admitted to and what we find out in discovery is the list of things that's quoted at one eighty four plus at most two glasses of one within the alcohol part of a start of ship yes with unable to thankfully perform the duty and that is a record of what the defendants perception was at the time but we actual it said but that's not a perception it says she tylenol and another one that wasn't that wasn't their perception that was reporting that she had done so with all due respect your honor i beg to differ she said that she had two glasses of wine with lunch the day before how that translates into large quantities of alcohol prior to start of shift i'll never know what she said and there was a zero alcohol found in her system so where in the record does it say that two glasses man certainly the defendant acknowledge that there was a some dispute about whether it was two at lunch the day before or two at midnight and one it's six thirty in the morning the plaintiff's testimony is that it was t what wasn't she restraint in terms of her alcohol and drug intake no actually she had completed that program june and in fact she had just come off six years of once a week test and for which there's no in the record no bad result in the record she had a have a relapse at some point that's in the record that he had any of it so in two thousand l a leave on that there was no discipline associated with that there was no misconduct associated with that and i would like to find the part in the record where she describes the two glasses of wine and i the issue before the court is summary judgment whether there was any evidence where this corps or the court below hartmann would have found that she was perceived as a person who had a drug and alcohol problem she was terminated under circumstances raising inference was there any pretext they're serving a direct threat to fence there's lots of evidence for all of this court below  a state in which she was clearly not fully aware of her surroundings and what she was doing yes not responding to patients calls for assistance yes she was having a at work and her doctor offers a medical opinion that says this is typical those actions syndrome as her working diagnosis her doctor diagnosed her with a grade three concussion and talked very specifically about how post concussion syndrome causes a lot of problems for people that are woozy episode of fainting at sowed amnesia all kinds of stuff are really associated with post concussion syndrome in fact there's any number of reasons why a person might become woozy but regardless of the reason how could she function how could she perform the functions for a job in that state regardless of what cost or what brought her to that state and that goes right to the direct offense your honor or the direct threat defense this is a hospital that doesn't fire people for becoming in pass a tailor to work and you have to leave this isn't a hospital that that disciplines people for no call no show because they're in the hospital with a traumatic head injury i'm sorry if i may reorient to the judge's question they're saying that this is an ongoing condition my client has no more suggests that she should be allowed to continue working with an untreated concussion than if she was having a stroke or heart attack which by the way she could have been for all they knew because they didn't ask her any questions what they said was you're disability discrimination because she was treated as a person who was engaged in the illegal use of drugs when she was not that's why the statute i cited it forty two u s c one two one one four which talks about being a row knisley regarded as in gauging in such use but not engaging in said fuz having successfully completed a drug rehabilitation program and not engaging it says yes no she was told that she was  yes and she acknowledged that she had been drinking at some point during the in the prior day or twenty four hours and apparently was taking some kind of medication she acknowledged two glasses of wine the previous day the toxicology report tested her alcohol it came back negative the drugs that she was taking that's actually interesting because what's missing is any evidence that any of those drugs would have caused any level of impairment at all that's her regular prescription stuff according to her doctor what's more is none of that was in the toxicology impaired from drugs and alcohol you're fired the problem is is that they ran a toxicology report and she didn't have any thing except tylenol come up in the report the first thing they said about that was unable to she had a record that just alluded to of of performing acts that could have subjected the hospital to a lawsuit  errors between a relatively short period of time yes during a period when she was still in the h p program and testing negative still for drugs and alcohol and nancy says that it's unusual for there to be more than one or two at a time and that anybody who commits a medication error and that's a big health care facility they get written up they didn't fire her for her accumulation of medical medication errors they fired her for misconduct on august eleventh and that perception and the reason they fired her is written out at j one eighty five they're saying you came to work at mit into drugs and alcohol and you were a p apparently impaired by that you're fired you're a continuing threat we can't have you and what my client says is that she has this in her past but she has a clean toxicology report that they took that day which they initially misrepresented by the way they initially said that this toxicology report is limited to alcohol and narcotics which didn't find out the whole anyway and it turns out this is a thorough complete comprehensive toxicology report that had she had anything in her system it would have showed up and what it showed was tylenol because that's all she had in her system that is the central fact of this case i know good morning to may it please the court i'm sarah bolger i represent a police arrest and hospital in this case the district court properly granted summary judgment on behalf of reston hospital for multiple reasons and i think your honour's have pointed out one of the major reasons and that is because ms harris could not perform the essential functions of her job on august eleventh two thousand and nine she admitted as much in her deposition testimony as the court is aware in a primary case of discriminant disability the question was do you think that you could safely administer medication when you were in that state on august eleventh the answer when that wave happened upon me no question do you think that you were able to treat patients when that wave came upon you on august eleventh answer no when question when you were meeting with the folks at reston hospital in the conference room on the eleventh did you ask for any type of time off for sick leave answer no j one sixteen through one eighteen ms harris had admitted that she had had at least two glasses of wine in the twenty four hours before her shift she also admitted that she was on multiple medications on her drug test consent form which is j one eighty four she signed it there was no question that she was the one who signed this consent form she said i am taking the following prescribe over or over the counter medications at this time and she listed cymb and additionally i wanted to point out that on the terminations form that the counsel for ms harris referenced in her argument at age one forty five the hospital the undisputed testimony is that the hospital took into account  her state on august eleventh two thousand and nine and her inability to treat patients but also they took into account her previous performance documented deficiencies and that's on one eighty five it explains how you know it has any action been taken in the last twelve months and it lists them there was a performance corrective counseling memo on august twenty fourth two thousand and eight that was documenting the four medication occurrences that miss harris had in two thousand and eight over a six month time period one of them was for not giving a medication to a patient for eleven hours beyond when the doctor had prescribed it another one of the occurrences was giving a patient twice the amount of dose that he or she was supposed to receive another documented performance medication occurrence was for skipping a dose and ms harris not catching the skipping of the dose that is listed on the the corrective counseling terminations notice and also her suspension on august fourth two thousand and nine for the no call no show her supervisor nancy who is the director of the surgical unit testified that she took into account all of those things in the decision to terminate her in addition to the three years worth of performance assessments where she was continually counseled to help out her peers better that she needs to improve on that score and the testimony on that was undisputed but if i may i would just like to point out on august fourth she was under the record hospitalized for some reason but that is undisputed in the record that at that point reston hospital did not know that she may have been suffering a concussion the only thing that was in the record is that ms harris testified that she believes she told miss us go on august fifth that she had fallen and gone to the hospital and hit her head which is not mean that the hospital then automatically should know or assume that there's any kind of concussion that has been diagnosed and in addition ms harris did not come back to work on august eleventh with any kind of work restrictions or requests for any accommodations or tell she didn't tell anybody that she doesn't wasn't feeling well she didn't do anything to put rest and hospital on notice that she was having some sort of medical emergency as ms harris his counsel argues today is undisputed on august eleventh that several hospital employees witnessed ms harris slurring her words speaking slowly not repair responding to at least two patient calls for assistance staring blankly at a computer screen for several mute for center several minutes while the screensaver was on and standing and staring blankly while at the nurses station is also undisputed that she had administered medications to patients before people had noticed that she was acting in a in a strange manner and before she was taken off the floor the rest in hospital rightfully concluded that they just couldn't allow her just to perform her duties and she wasn't safely performing her job i would like to note a couple of other arguments that counsel makes in her brief ms harris had admitted to violating policy back in two thousand and three for four diverting dilaudid from the rest in hospital pain pump rest in hospital cho could have terminated her employment at that point there's no question that it was a violation of hospital policy instead the hospital chose to allow her to continue working there as long as she completed the requirements of the age program and the age paid program is administered by the state of virginia  order to allow health care providers to keep their jobs and to keep their their medical licenses and nursing licenses and as part of that age to program ms harris could not administer narcotics to patients for several months when she returned from a six month  two thousand and four obviously as a surgical nurse on a surgical unit administering narcotics is a major job function but the toss spittal still chose to to accommodate her by having somebody else administer the medications to her patients in two thousand and seven ms harris obtained a prescription for lunesta which is in the same families and b n h pip decided that that was a violation of the program and extended her period by one year and so as is miss harris admitted that she was unable to perform or job duties taking into account all of the previous performance issues that she had had over the last several years in addition to the no call no show on august fourth and the the way she was acting on august eleventh reston hospital properly performed that she or she cannot establish that she can she cannot establish a prime if they she case of a disability and she cannot establish any evidence o harris tries to surmount this problem by pointing to statements made in front of the region young point commission and the virginia board of nursing and i just wanted to address those briefly both of those are subject to a state statute that prohibit statements made during those proceedings to be used in a later court of law order ministre to proceeding so the statements that were made during those hearings cannot be used now that being said even if you were to use them now it doesn't establish anything which is the critical fact in this case that she could admitted that she could not perform her job duties on that day finally she also tries to be laidley assert that she has a record of impairment which she is saying is separate from her argument under both e e o c charge and her complaint that she had was perceived wrongfully perceived as having an impairment we submit that she did not exhaust that at the stage or in her amended complaint she brought it for the first time in her opposition to summary judgment and we urge that it that is not considered as something that she is exhausted under the a da however even if you do consider that as something that she is exhausted and that is properly before the district court and then this court we still submit that it doesn't change her theory of whether she had a record of impairment or was perceived doesn't change the insurmountable hurdle she has that she was performing at the essential functions of the job and she was qualified for her position on that day that's correct your honor i mean i submit that the trial judge was right on that count but even if the trial judge was wrong you still have to you still have to show that you are a qualified individual with a disability under the a da whether you define disability as met physical or mental impairment that substantially limits a major like add to activity or separately you have a record of impairment or separately you are perceived as any one of those arguments that you make you still also have to show on top of that that you  qualified for the position an issue which she cannot hear th confusion when she went to the hospital on august fourth it was not reston hospital so it was not her employer she went to a different hospital on that day she was not definitively diagnosed with a concussion while she was at the hospital on august fourth in the discharge papers  d at inova louden hospital it said that she should follow up with her primary care physician to talk about her mental health and her clonopin usage she did not follow up with her health care provider dr barriers until about six weeks later which was after she'd already been terminated she was terminated in august and she went to see her primary care physician in middle of september at that point dr barry's was relying only on her own statements to him at that point he testified  he did not have all the records in front of him he was relying on what she said and what she said happened to her and he said based on that recounting of the history even though the exam is essentially quote essentially normal at this time that thought she may have been suffering from a concussion that was slowly resolving he said under oath that he couldn't definitively categorize it as a as a concussion even though he thought that might be what was going on based on what she told him and for those reasons we submit that the district court properly granted summary judgment in favor of rest and hospital and we ask that this court affirm that decision unless there are any other questions large quantity of alcohol for coming to work and another glass of the wine it like thirty in the morning or g a m which my client disputes and that's also in the realm of what she says as she had two glasses of wine with one the day before in any of that if we're talking about at most three glasses of wine in twenty four hours there's no evidence that that would impair anybody and there's also no evidence that there was any alcohol in her system they tested for it it came back negative a putting all that aside and how do you respond to the fact that she admitted that she can up a form or job duty that's the question whether we're going to assume that there was some fault they fired her for misconduct so we're going to i'm sorry how do i respond to that she was suffering from a concussion rest in hospital acknowledges that you can have a woozy and fainting spell from a concussion you could have a woozy in fainting spell from anything what and actually would counsel accidentally put her finger on it you don't automatically know or assume we cannot automatically assume that she had done anything wrong that day on august eleventh there's no evidence that she did the toxicology report came back clean the toxicology report which they initially tried to misrepresent as saying oh no this was limited it didn't test for what she was on she was on something else no that is not of all true that is not true and indeed using the principle of evidence you can say that a misrepresentation about a material fact is affirmative that i said i don't think the question went to regardless just put it completely putting that aside she acknowledged that she couldn't perform the functions of her job yet so i suppose if he she didn't drink at all or whatever she had a concussion although there's no apparent no definitive diagnosis of that in the record what about the fact that she was having trouble doing her job she wasn't what and acknowledges as much he wasn't responding to patient calls she was staring at a screen saver there is no dispute that she was suffering from something that day i have a medical opinion from her treating physician carrying grade three concussion as a working diagnosis that's found at the joint and it's volume two at three seven three she would not have been able to do her job if she was having a stroke she would not have been able to do her job if she was having a heart attack she wouldn't been accused of drinking large amounts of alcohol and taking drugs part of work if she had been having a stroke or heart attack or any of the other things that rest in hospital says of course an employer will expect from time to time that there always will experience a medical emergency i asked thirty p sixty pounds about that are you aware people who've had medical emergencies become incapacitated and had to leave work yes were those people fired no but if she asked to leave or no but what i'm saying is that she would not have been fired but for this history in perception she would not have been accused of drinking and taking drugs without this history and perception she would not have been accused of being a relapsed drug addict without this history in perception without this history in perception she sent home a drug test is taken and when the results come back negative that's exculpatory but we're pressing this still the defendant isn't saying they were mistaken the defendant to say they were right their perception is correct this is a woman who took a whole lot of stuff and came into work and that's just not true she's fired for misconduct not her accumulation of medical errors which there had been none in the past ten months prior to her terminations she was not in any kind of disciplinary or performance improvement program this is someone who had a medical issue at work and because of the perception she was just assumed to be drunk we just assume that two glasses of wine the previous day makes you too drunk to do your job the next day we just assume that the stuff she's taking is something other than her routine meds and that would cause her to be impaired her doctor says no her doctor specifically addressed at the address the issue of the planet with respect to the definitive diagnosis that was something else where the judge below refer the defendant's version of that plaintive the doctor bowers was very clear that he and he's a guy who'd seen a lot of concussions he said that the post concussion syndrome was likely what she was suffering from generally accepted medical practice definitive diagnosis issue stems from the idea that there's not a test it doesn't show up on an m r i there's not a chemical test that you can run that says concussion what you do is you look at the event she had a severe head injury she's still a bruise on her face at this time that's a wrap she has a big bruise on her face from when she smacked her head on a set of cement steps the with four there's no evidence that there was anything but that going on and yet they just believed her they suspended her and when she came back they weren't looking because they automatically knew they automatically knew what it was they had their answer this wasn't a person who  automatically assume she was on something they're pushing that she was on something that itself tells us what their perceptions they wrote down what their perception was she admitted to large quantities of tranquilizers and alcohol that's not true it is not at all true that's not close to being true she said i take this for anxiety and depression she was taking not meth the trucks a moloch's a cam which isn't and said it's like advil for arthritis in the hips there's no evidence that any of that would have had any intoxicating effects at all in fact the evidence is that it wouldn't dr bao or specifically addresses that in the record that it would not have been that clonopin which is a commonly prescribed and anti anxiety drug she was on a starter dose and he talked about that a record at three forty nine this is such a commonly prescribed medicine he says i find it hard to believe that anybody would be impaired by using it on your time has expired i want to wrap up yes ma'am thank you i would ask that this court remand the case back for trial ms harris deserves her day and or there is a lot of evidence that this decision was made not on the facts that were before them but on their preconceived notion thank you