the basis ruling on a factual conclusion that is contrary to the allegations in the complaint we allege that wal mart terminated mr bryant based on a neutral policy that applied to all its pharmacists nationwide wal mart asserted in briefing that it terminated mr bryan because of his own personal past criminal history the just record excepted the assertion of mr wal mart and it was down to rather instead except the assertions in the complaint well i guess my worry about this is if i don't look at exhibit af but i look at everything else that was submitted to the court in response to your complaint it seems as if bryan was fired for criminal conduct not disability well the that i read your complain and i've been trying to read it pretty carefully because it seems to me there are things that i should put in there but the only time that i have any in the complaint is four point three which says the wash of pharmacy suspended is licensed to do is addiction to or abuse of prescription drugs but frankly i don't find that in any in the exhibits in fact the term a nation was not for that all it was for or jury there's actually no evidence whatsoever of why why wal mart did what it did there's no evidence and the only the only assertions we have there are admissible here are the allegations in the complaint o just a minute it seems to me that there are in the exhibits exhibit that says that the board did this honor as a result of forgery yet and i think the problem with that that the district court had there is that it mistook what the board of pharmacy in the state of washington did between two thousand and two and two thousand and seven and what wal mart did in two thousand and eleven well but here's the problem i'm reading your complaint now and i'm trying to say in the complaint whether it meets the twamley standard you suggest that it was due to addiction to and prescribe and abuse of prescription drugs and yet i don't see how that led to his suspension if i read  or pharmacy no might lead to his if you will suspension by wal mart well there's a cuz the board of pharmacy did not suspend him as a result of his prescription drug abbott they suspended  because of forgery the board of pharmacy suspended him on the basis of his criminal acts connected with drug addiction and they  then i read your response to the motion to dismiss that says that he was a stern he was not terminated because of his prior history of forging prescriptions while he was employed at rite aid in fact on page five and so i i mean what i'm trying to do is look at your complaint and see if you pled enough to get to where you want to get well we need to remember this is a disparate impact case i know what are the motive that wal mart had for terminating mr bryant actually isn't the the question as it is in a disc i'm not trying to say that it is it's a disparate impact this this is a disparate case that has to do with as what i understand is a neutral policy that somehow particularly discriminates against one set group and all i'm trying to say is when i look at the complaint and i look at the exhibits to which you do not object i can't match your if you will the abuse of prescription drugs or of if you will the disability you may claim to why it was wal mart terminated because wal mart terminated based on what the pharmacy board did and the pharmacy board did it on rick perry on the basis of forgery doesn't have anything to do with disability well to be clear though to your honor we don't know why wal mart did what it did except the allegation in the complaint which actually came from the mouth of wal mart at the well and they terminated let's read that and the claim here allegation in the complaint it says the history of adverse action yep so a so i look at the history of the adverse action and it was for because of forgery i didn't have anything to do i had disability that's right so of somebody because of forgery well it gets rid of somebody because of any adverse action and we say and we believe we can prove that will tend to screen out people with disabilities and the people with disabilities we represent here are those who out people with disability could you spell that out how how is that actually going to tend to adversely impact people with disabilities that is to say people who have a drug problem well because any pharmacist who at the time this policy was implemented or since has had lost or or sought and did not receive employment wal mart because of that adverse action and that adverse action was based on his or her drug addiction is being terminated for that and that person qualifies for protection under the a d l but let me ask you this does it screen out disproportionately people who are drug addicts that is to say or pharmacist or people who work in the pharmacy with the licensing requirement are they particularly likely to be drug addicts well particularly likely to have been fired because of some adverse action i mean i'm trying to figure out disparate impact and even what it means i understand that is you had certainly had the tendency to screen out your client who was a drug as part of that addiction and his practices under that he forges and writes himself prescriptions to feed his addiction i get that but in terms of to to show screen out within the meaning of the statute you have to show that merely that that does screen out drug addicts or that it disproportionately screened drug addicts in a higher proportion and they exist in the population what do you have to show i believe the answer to that is you only have to show that it tends to screen them out and that it's a different standard under the ada get clean out want let's look really and it's of great question because that's exactly where i was going to go seems to me lopez vs pacific maritime association would control that situation and there judge graber said there's not enough pled in fact she not only said it wasn't enough pledge she said they waived it right she said they alleged and litigated the wrong theory the theory that judge lectures referring to where there's a proportionality test and you need to have a statistical showing she said they pled the wrong one they can't change more but she didn't say you could do it any time it's got to be a proportion it's got to have something and that's the thing that when i read your complaint i couldn't find that's because we don't need to allege that and nor did mr lopez but he did and then he litigated it and then he appealed it and then he brought it up only on appeal this issue of well wait a minute there's a different standard for disparate impact in the eighty a i think companies that one and judge grabbers that you can do that now it's too late well we did that in the complaint let me let me ask a second then if he was fired for forgery is there anything i guess again i'm trying to figure out how can will it doesn't seem to me you've alleged enough in this complaint to go to the case which i think you might be able to make which is one two one one two  had seems to me someone asked a little edge here that drug addiction causes one to forge and i didn't find that here well i suppose there you know you certainly have your own are taking a different approach than judge leighton did in the district court he didn't find any equality family problem he mildly said i understand what judge layton did but this is a motion to dismiss now so i understand my standard of review and i'm not sure judge layton hit the right points on what he was really talking about what i'm talking about though itself i dismissed this for a motion to dismiss i've got to find in the complaint something that alleges what you can get to i don't think you can get to dispar impact at all unless you go under one two one one two way so then i tried to say ok i'm going to try to get there under one or two one one a fun one to a and i'm going to see if i can't get there and frankly you didn't and you didn't the legit if it's posing that the adverse forward action was simply a filing air does that screen out drug addicts well that if there was only a filing error at the pharmacy all filing errors would necessarily cause the pharmacy board to screen out these people would that screen out drug addicts well this case isn't it  the pharmacy board it's against walmart for and or stand but the wal mart your your the allegation that says that wal mart terminates and refuses to hire the employees who have had a history of adverse action against their license by a state pharmacy board so if the adverse forward action was simple filing air would that screen out drug addicts it doesn't seem that would that wouldn't be fair for it seems to me that you have got to plead something that gets me to the point where you want to get me but i thought i mean paragraph six point three it alleges that wal mart's policy in practice screamed out or tends to screen out a class of individuals with disabilities which is one two way well don't you need to allege some connection between why your client was fired and the disability yet the class that he belongs to the six represented people who are recovered drug addicts or alcoholics to successfully completed the supervised rehabilitation program that's the question you stop there because when i get to what the board of pharmacy did they didn't talk about his drug addiction they didn't talk about anything one could call a disability they only talked about forgery so it seems to me you have to have smile again sins or at least plead something that links me between what the board of pharmacy did and your client which i don't find and we allege that he was required by that board to go to drug treatment and that when he did that in completed it successfully he was you went back to the board in the board said you get your license that so if that i mean clearly clearly underneath what you're reading in these documents is a drug addict who else is rehabilitated who then qualifies for protection in the statute frankly i gave you every bit of that but it isn't doesn't seem to enough for you to allege i was fired i have a disability and therefore i have a suit it seems to me you have to link the firing with  disability which i couldn't find well in a disparate impact case you can't link it in the typical way of saying they did this because i'm a drug addict because we don't claim that what we claim they did is because i don't i'm not talking about i'm not talking about having disparate treatment case i'm talking about a disparate impact case you've got the neutral policy the neutral policy says i fire at least you say i fire i don't hire if you have any adverse action and then from that point your next allegation is i have a drug disability but you don't link the drug disability with what the pharmacy board did well i would hope that on remand we would be able to add that allegation if that's the way the court rules but i want to add one more very important thing before i go and that is that in no event can an employer be allowed to terminate a rehabilitated drug addicts like mr bryan on the basis of his past criminal misconduct before he was employed because that would even cerate what the a da clearly explicitly protects which is rehabilitated drug addicts if all an employer ever has to do is say you did something i mean i'm an employer for a few years and then whenever i feel like getting rid of yemen to say you did something five years before you came here that was criminal so and you're terminated that can't be because then that would this rate any project mr brown would be able to be terminated on the basis of his past misconduct from every job he ever and every rehabilitated drug addict has by definition a past criminal history every one of them so they would never get any protection under the statute which clearly was intended by congress to offer some protection those who are no longer engaging in drug side that will give you a chance to respond thank you very much disparate impact claim that it's plausible the record shows the record before the district court the record before the court here today shows that the pharmacy action at issue was the result of criminal forgery no i got that but let me ask you this let's assume and i'm not asking you to concede but let's assume that it happens fairly often that pharmacists like doctors who have drug problems will use their position to forge prescriptions and let's assume that you know there's more than not just a trivial number of pharmacists across the country who have addictions and who for general order to feed the addictions and that the walmart policy will of course for any of those who are caught and got adverse action by their board of pharmacy in the state they're going to get fired so this let's assume that those are the facts does that mean that there's a tendency at the wal mart policy to screen out former drug addicts the credentialing policy it is at issue here on our screens  you why you don't know well your honor if i may make explain the the the rationale behind my response to the court you know before you without giving me a yes or no your honor the answer to your question  under those facts is yes then whether there would be a tendency to screen out that would be a tendency to screen out how to undo the fact that your honor presented ok however those aren't the facts before the court well there aren't any facts before the court of course we always have a pretty bar complaint what we have the complaint that the appellant filed with the district court as well as we have the additional records from the state pharmacy board that are incorporated by reference your honor but i'm not asking you what happened to this person i'm asking you whether the policy has a tendency to screen out former drug addicts under your honour's facts that he presented yes it could get could ok so is the problem then that the end of the complaint is insufficient pled that's to say they didn't then lay out what i just laid out the complaint is insufficient but in addition this court should look at the fact that the allegations of the complaint incorporate incorporate the additional documents of the state pharmacy board and in those facts that were before the district court and of before the court today what we have is the application of the credential policy that is facially neutral it is rationally based but the but the problem i've got at this step of the case i on my theory is that i'm pushing you on you don't necessarily lose because even if it has the tendency to screen out under the statute you can advance job related and this is a necessity and if somebody actually has that record i'm not you know that's a good defense if you say well this is really a job related somebody who's not only going to be drug addicted but to violate the law by criminal forgery well that's worse so you're not necessarily going to lose merely by saying that this is a tendency to screen out is just you've got to put forward your business is necessity defen honor in addition the qualifications standard that set out in the a b a that shawn was referencing that it's the qualifications are there that it's justified and that it's business related of cummings versus city of yuma concluded that where a disparate impact discrimination claim where there was an affirmative defense apparent from the face of the complaint out that this court has held upheld a trial be six dismissal dismissal of the disparate impact case in the past well i'm not sure that case is really appropriate in this case i mean i'm i'm kind of where judge fletcher is it seems to me there is an affirmative defense for you to win but i don't know if it's a motion to dismiss we're in a motion dismissed stage here we're not on a motion for summary judgment or a motion to dismiss and you have appropriately so look for documents in there that were talked about in the complaint and therefore i could look at them but i guess i guess the reality is it seems to me that you disagree with judge flexors question when the facts are changed so how does this particular case change the facts that he put to you  pathetic in this particular case what the appellant is asserting is that in their a a theory of the eighty eight not recognized by this court that an individual who has an addiction related disability there is a violation of the eighty eight if a workplace policy tends to screen out individuals who are recovering drug drug addicts and this court as well as other federal courts have already concluded that there is a distinction between disability and disability related misconduct of course sure and here in this particular instance the application of wal mart's credentialing policy as i stated before it's it's facially neutral it's rationally based and it applies to individuals who have a record of criminal forgery that i don't know whether the applies to a record of criminal forgery or to applies to the history of adverse action against the licenses for any reason by the state pharmacy board the the credentialing policy at issue  taking the plaintiff's case as it is and giving is allegations the benefit of the doubt on a motion to dismiss i don't think it has to do with forgery as such as to and the adverse action against licenses by the board the only reason the forgery comes in is because you put in why it happened and therefore we know it was a result of forgery and smike questions to the honor that is right but the appellant is asserting that the motivation is is not is not should have no bearing on the decision of this court nor the district court so i'm not sure the motivation has any bearing on the question of tendency to screen out it may well have a bearing on business yes your honor but nevertheless the motivation in order for the plaintiffs to prove his case he must prove that h a a physical amount so impairment that he was qualified and that there was adverse action taken because of that this is no that's wrong the statute says if it has a tendency to screen out that was qualified for the for the job in question and that an adverse employment decision was based on the disability and what casey reading enters a screen out case this is a wellington versus lyon county school district and no your honor it is not a disparate impact see you reading a different case it's a disparate treatment take it well let's stay with occasionally god this is a screen out case so what do you have want to screen out case your honor there are no cases dealing with disparate impact disability from nation cases that have been dismissed i concede that point that there are not but nevertheless the reasoning is a put couple because in both instances we have the  disability plate in this conduct that that issue you know i have to say i'm i'm sympathetic to wal mart and i'm sympathetic to their side i'm sympathetic to both wal mart by its policy is trying to figure out an easy way to protect the integrity of its pharmacy products and it says anybody that had an adverse action by the pharmacy board of the state we don't want them i get it so i'm sympathetic to what wal mart's trying to do but it may be that it's under the statute sweeping with too broad a brush it may end up having to say ok here's here's what we're trying to accomplish here's our business estie this is why it's job related rather than saying this doesn't have a tendency to screen out a former drug addict particular plaintiffs show that he had a record of criminal forgery and i get that but that's not the question i'm asking you i'm asking you whether the policy has a tendency to screen out former drug addicts that that's the question the statute ask and your honor the it could have a tendency to screen out potential try to try to expedite the record before the court today were not able to make that determination and so are you saying that what we need were to allege what i've just proposed as a factual scenario that he could get past the screen out question and then we move on to businesses related the there are a number of  not present in the in the complaint including that slate basically is it says is it kind of unfair bones which says this policy has attended to discreate out it doesn't give us any mechanism by which this happens but it says it has a tendency to screen out are you saying we need a mechanism  say we need some more detail as to how this is happening in order to comply with it well not only that but there are other allegations that what we're not certain by the by the pilot in this case such as that he was disabled that he was a qualified individual disability that he was substantially emitted and and he does not identify a major life activity so there are a number deficiencies but amendment would be futile because the affirmative defense set out and the  because of the qualification standards and the qualification standards or the credentialing policy or walmart need not hire or retain pharmacists that have a record of dishonest plaintiff has to show that the employment practices which are facially neutral fall more harshly on one group than another now i have a tendency to agree this complaint does not lay it out the judge dismissed without prejudice or with prejudice with prejudice your honor did  counsel ever fight that all i need doesn't he doesn't suggest before us that that was a problem if he ever say anything to the court about that district court below understand it yes runners the first a minute complaint so he's mended already wants to make a particular case yes your honor that he amended after you filed the motion to dismiss or before you got there almost out of time but i'd like to just stress that the plaintiff is seeking to recognize that the fact that he has a addiction related disability gives him greater rights than individual who may have been disciplined by the state pharmacy board but who was a current user so therefore the individual would not have been covered by the eighty eight so the application of the policy as to both of those individuals they would be screened out by wal mart's policy but the plaintiff is indicating arguing that based on the fact that he has an addiction related disability he has greater rights than the individual who and so you lose no matter what you do with the complaint those are i mean brian cannot amend his complaint to make it so and the district court misread the a d l you can't use this status conduct distinction from the disparate treatment cases to determine what a disparate impact player pleading must say and you can't find what an employer's motive was on the basis of no evidence but just counsel's assertion exhibit f is unintelligible we don't even know if that the walmart document it's redact heavily redacted it's incomplete clearly inadmissible on a rule twelve motion so the the reason why no one ever talked about amending the complaint is because the district court didn't see that problem that this court has raised today and i question whether pleading should or could describe the mechanism by which a neutral policy screams out disabled people beyond what we've done which is to say he was drug addicted the the do records in the in the court in that record do state addicted but his drug addiction caused him to do the forgery and that a general board policy which suggests that one eliminates from employment or does not employ anybody from the pharmacy but that the pharmacy board as disallowed as a result of forgery causes the problem but here i have to say the record is very clear that the pharmacy boards in washington found him to be a drug if you look at the are twenty two twenty three for example those are the statement charges they say he admitted he was a drug addict we're going to make him go to treatment if he wants his license back and that's what he did they sent him to drug court they diverted sentence for his criminal forgery the sentiment drug or drug court requires him to get treatment and he did that in a in a state pharmacy board approved program and completed he's exactly what these this part of the a da is designed to protect and for him for the court to dismiss this on a rule twelve motion or any other motion on the basis of his past misconduct which led to his license or suspense and suspension would be would have us right that protection the idea simply wouldn't apply to anyone who was a rehabilitated drug addict i think most sides for their arguments brian versus wal mart store