good morning may it please the court my name is joyce smith and i represent andrew adams the appellant in this case mr adams is a long time employee of the board of education of ann rundle county began working there in one nine hundred seventy nine has an record until the events at issue in this case this case involves a mix of issues under the americans with disabilities act and the family medical leave act the lower court's opinion focused on whether or not there were  adverse actions to find violations of those two act however it did not address two other issues one under the one under the and that way at all and it's lower court in the lower court opinion and i'd like to begin by addressing th first issue that was not addressed by the lower courts summary judgment was the issue of the reassignment to j albert adams academy and whether or not that was a reasonable accommodation the lower court focused on whether or not that was an adverse action for purposes of the retaliation and discrimination counts but there was no analysis done as to whether or not that was an adequate accommodation there's no dispute in the record that an accommodation was requested  and we've cited to the case law in every state says that when reassignment or transfers requested an accommodation an employer is obligated to engage in that interactive process identify vacancies and if the i don't think there's anything in the record that mr adams wanted to go there was something in the record as you mentioned that the schools i am a doctor thought that certainly the he was jr from the j f cademy but he didn't didn't and the you know as dish tracks the points out i thought that there were doctors recommendations that the school board acted upon in order to arrange this transfer i mean what bothers me is it seems to me they were trying to help this person alex and that they were trying to do they he had a job and that they were trying to that that a transfer was necessary and had been requested by his own doctor dr adler and as you said they were in a position where they had to do it we don't dispute that at all the issue then is once they became on notice that there had to be a reassignment or transfer whether or not they did all that they're obligated to do under the to ensure that that was to an equal position so i agree they had to do the transfer but they the person dr li but it's quite the position had a diminishing in pay and because of the collective bargaining agreement it didn't take effect for two years and then it did however it also rendered him ineligible for certain bonuses that he would i would say that what the school board should have done again doctor said there needed to be a transfer should have been look for all available opportunities including those that would never have added diminish or pay or render him ineligible for bonuses and make those and engage in the interactive process instead of saying we're not going to look for anything they picked wine and the record does have this is a school the stress that he had been under involved student assault upon him and how he handled that he didn't the reason he hasn't sought one is because of the history of retaliation reject the one i'm sorry did he ever object to going to there's nothing in the record in the record that he did object i just he was the only option given to him there was no other option picked the regard with regard to the change and it was that when he was transferred in other words it was  matter of collective bargaining agreement or whatever or just something that occurred or changed after he got to know they knew at the time of the transfer that it would result in a diminished in the salary and benefits everybody knew that and then that the obligations of the employer under the interactive process was to identify all options and they in they failed to do that there was no interactive process they selected wine it did involve that they had big admitted in the deposition but they didn't even try to consider any other options and they had a duty to do so that's where the problem came in where he was given no other options but this wine and objection could have meant going back to the school that triggered the panic attacks and where the and they're darned if they do there's a situation in which they could have avoided any litigation by simply identifying and talking to them about any they can positions instead of only choosing one but they are going to been willing to give to do to do that the school board i would say that the school board had an obligation before that one school was identified to identify all of the possible they can see and sort of only want the interactive process is not only imposed upon the employee and in fact we've included case law we talked about the cradle case we talked and then there's third case so third circuit case law seventh circuit case on that says when there's a reassignment issue the interactive process burden falls heavily on the employer who's more aware of where the vacancies may be coming up or what may be out there and in this case you know while it will hear argument that there wasn't part of the interactive process on mr adams part there was none on the employers allison play requested a transfer reassignment he never came in and said this one's ok it was their own doctor that they had hired to perform the evaluations who came in and said that he thought that the adams academy would be sufficient if it please the court jake reach for the arundel county public school system i appreciate the opportunity for hearing here today i believe that we're in a situation where it is mr adams misperception of events that is creating it and part of difficulty here he has admitted in the record that he has an issue concerning perception i would reference or to his comments about the snide comments that he thought he was going to receive from mr arar and that's on page two seventy one cretins extract it it is replete in here that he has a problem with relating the facts and specifically on the feb twenty fourth twenty and meeting it was a crucial meeting where he is the investigation was continuing how do we know because at that point in time he submitted and gave a written statement or gave a statement to the investigator sara now does in record extract  to now previously mr adams been deposed and he indicated he was shown some resolution documents and asked if the investigation was continuing and he said he didn't know the workings of was reinstated to the same job it is reasonable for him to sing the board of education inquiry and initiative i don't think it was reasonable and the reason is because he had a meeting on the twenty four where he was shown where he's told the d s s investigation was concluded and they interviewed the board interviewed that's true it indicated to him that it was not clear that ultimately that's correct from the february twenty fourth meeting the board of education continued its investigation and then find light it is hard to issue him a written reprimand now that that's it's kind of interesting because the written reprimand mr adams believes to have accused him of child with child but if you were to take a look in the record eighty one eighty specifically states this letter serves to give you notice that your actions were unacceptable and provide you with the opportunity the wreck or inappropriate conduct specifically on january nineteenth when you can while attempting to obtain a cell phone from a student you engaged in physical contact or using a that escalated and could have been handled differently there's no indication of child abuse but you know i think you're lloyd makes a good point about the fact that there were an awful lot of investigations here and maybe they were you know overlapping it does seem to be a lot of investigation but is our understanding the investigations  or they are sexually molested or whether their physical or mental damage far greater than that inflicted on a student i'm worried about future in other words when when a more serious incident and then this one comes up i wouldn't want this case to say stamp a proposition you can only do one investigation or  both protect the students and to effectively as you so what we what in the record i can't point you out to the page but mr liver man testified that what they do with the investigation is they go forward and social services investigation and school board doesn't interfere with that and then when that is concluded they go forward with their investigation which is basically a policy or are procedure  general warrant to supervise the school board's investigatory process i don't know the family medical leave act thing it's a moving target i don't in which was january nineteenth to the twenty fourth when they brought him back but apparently that was the department of social services portion of the investigation when they brought i we have already racked but it does seem to me you know unfortunately some of the investigations go on and on and on and they do take their toll on individual contact with students it was a violation of the school policy therefore i would say it was not warranted there is nothing to indicate that the school did that or pretextual basis or anything and mr adams has other misconceptions about what was going on the first what he called a verbal attack on march third where he's sitting on the floor and mr help on that day and he wasn't sarah either was looking for a nurse even after mr for want to talk to him and mr adams doesn't recall asking for any medical assistance of mr far enough on page two eighty the second verbal attack on march eighth was even more annoying while you were gone people were covered for you and you hadn't communicate your hopes i would suggest to you that they seem to be the mr adams seems to be particularly concerned with what people think of them and i think that that is contained within and i'm an eight to seventy two is there with due process resumes or and it's much less likely to be an adverse problem and action but are there any due process violations in the investigation that are alleged is this person not given a chance to  investigator on the twenty four with the brea disciplinary hearing he was provided notice he was given almost three weeks to prepare any response and he came in with an attorney at three dis ultimately he didn't engage in that conduct again and he he continued to be an outstanding employee this is one incident where he where he crossed the line where he he he violated policy they told him that he violated policy and he's actually acted as principal since that overt that you can and he has gotten outstanding evaluations and i know that doctor i can say probably did but i cannot say that i haven't i mean that that that's the normal process is there they are given a letter indicating that they're rea later on for twelve indicating it would be three weeks now perhaps that's the delay that we're talking about because they he wasn't there and they were setting up a predefined with every meeting in the future to accommodate i don't know it was only on april fifteenth that we received after the late paperwork saying you need to be out and you need to change there was no indication that definitely leave was interfered where they're harmed in any fashion as a result but ending this meeting he did have to attend three medical appointments but that was all encompassed within the scope of the  needed the follow up in order to complete his evaluation he is an independent contractor we can't control and it was only necessary to see cooperation out  the doctors and it provided that information provided the fact that indeed he needed to go on indeed indeed a less but stressful environment and when the time came to walk about that l possibility or are there all other things are per close but this was a possibility that the school system an open position ten percent of the students don't really fit for the  from the plaintiff's theory that the employer must look for every obstacle opening or that he they must  assemble all of them indicate that when they get to the point of the employee did disputing that there's a reasonable accommodation he asked what he as well shift this portion meant to addressing the allegations of child abuse and the fact issues there mr adams position is that he was told in a meeting that principal who's an accused wrong during the case admitted in his deposition that he had received a phone call prior to mr adams returning to the school in which he was informed he'd been cleared of all the allegations and mr adams was allowed to return to the  school the school system argues that it was a continuing investigation so there's a dispute of fact there the lower court relied almost exclusively on a snippet of deposition testimony from mr adams in which he was out of there not he had personal knowledge of whether the investigation was going on at the time he showed the document he was not personally involved in the investigation however if you look at the testimony right before that and it's in the record at three o four m quite clearly testifying that he had been shown a letter that had not been produced in discovery that it had the five names of dr liberman's committee and said unanimous and had said it was cleared so he has not changed his testimony that had already been testified to and then when he investigate and that he was interviewed and after he was interviewed in their own logs as it's completing report right after he's interviewed and it's only after they learn of the f mily activity that it gets reopened after there had been a determination so due process had  did occur and what the issue is is that after the protected activity begins they reopen and already decided case and then issue a reprimand when it was already previously cleared and in in looking at the case in  pretext the issue is whether or not the proffered reason given by the school system is more likely than retaliation by the ethyl a in this case there are numerous sites on the record towards hostility towards mr adams taking the f m l a leave you have both of the other assistant principals having testified that the principal was making comments to them that he was playing games with with his sick leave and the principal does not have any medical degree to disagree with mr adams  if you look at the testimony from mr liberman in his deposition he said the usual procedure is that they issue a resolution document as soon as they get the c p s resolution he did testify that on some occasions for serious allegations they may go on but usually they get that and then on most cases they then issue their own closing out resolution document which is the document we contend was shown to mr adams and that they acted on that sacrament calling mr and then it also goes in the retaliations there is case law that says that you are interfering with rights if they have to go in fear that they're going to be punished in this way but most of the case on the fourth circuit has interference being interfering with their right to take  medical leave and in this case calling him in for a disciplinary conference which is larger than you know the de minimus calls and you know something that he should have been on regular pay instead of being forced to incur leave benefits for while he was going to this disciplinary proceeding employees are paid whenever required to go to discipline meetings so in this case to sort of continue where the  pretext issue we had mr adams laying on the ground unable to breathe there's been some allegations he didn't ask for medical help when someone's laying on the ground having difficulty breathing which is not contested that ought to be enough to be to put people on notice that somebody might need some medical help but instead mr ferrar you know mr adams clearly testified that he said we don't have time for your games and that's not even a disputed fact mr froggatt himself since an e mail that is in the record that said i saw him on the floor i saw him on will be able to breathe i told him that we don't have time for you to play your games and get up and leave this shows hostility towards mr adams and his disability and the fact that he needed these leaves because of it all of those facts together could certainly cause a jury to say well we have to decide was he in fact given through all the due process there's not a due process issue here but all the investigations were done mr adams was told that mr farrar was told that their own witness but they claim it wasn't done until may until may which is you know over four months after the incident you know there's there is no explanation in the record for why nothing really happens and then it kind of rea an investigation there are only two witnesses that are interviewed after the protected activity occurs and both of them had submitted written statements and they're both favorable to mr adams there's one from his beignet who's a teacher who was actually on the scene before mr adams and described that he was calm she did see him push or shove the student and then there's another statement from mr rigor another teacher who witnessed it who said he observed no physical contact whatsoever and he described himself as being on the scene immediately both of those written statements were in the investigation prior to them telling mr adams he had been cleared it went in interview them the interviews were consistent with everything that they had said in a written report and then the determination came out differently from what he had been told prior to engaging in a protected activity so i i see my light is on and off i'll stop unless there are any further questions from the court