sheriff of summit county this case has interesting implications very unusual ones be a d a alcoholism was not excluded from the protections to people with disabilities there had been a series of cases that have interpreted the a t a s specific rule giving a defense to an employer that when they enforce their workplace rules an individual who suffers from alcoholism and who violates those rules is not protected by the idea however that is a defense that is not meant to short circuit the mcdonnell douglas paradigm and in fact all the cases so far that i have come across a dealt with situations where individuals were actually guilty of breaking their employer's workplace rules and in most cases not all but in most they had no comparatives with which to show that the employer was not enforcing its workplace was even in this case mr dennis has but when he was drinking with deputy pierce the night before he was in an off duty status the district court acknowledge that off duty conduct that involves alcohol is not necessarily going to prevent the person with alcoholism from proceeding with the case and yet the district court found that commander mumford and sheriff it's simons and the under sheriff had a reasonable good faith belief that deputy denis had engaged in misconduct because they claim believe in this record that for some communication with your client as to when his duty hours were and that when he was arraigned that was within his duty hours well your honor the actual record evidence is that when deputy dennis was told the day before his arraignment by commander mumford that he was going to be placed on administrative leave while he was told was call me when the arraignment is done and then i will tell you where your duty station will be during your administrative leave and it is a reasonable factual inference by a jury the deputy dentist was not on the clock when he was being arraigned so that says to me on duty he is on duty your honor he was in the process of being arraigned and a jury could find based upon deputy dennis's testimony that he wasn't actually going to be on duty until his arraignment was completed it was no way of knowing when that arraignment was to be completed of course it was as if it was because of his own conduct and the fact that he was intoxicated that the arraignment wasn't completed on the day it was supposed to be completed there may be some question about time but the fact is they were ready to go forward with the of rainman but they continued to test him and he continued to be above above the limit for several hours into the day and eventually they had to call it off and they couldn't rein him until the following day on the th so you know i can we infer that his own conduct was the reason he couldn't be on duty on july th as a letter required from nine hundred hours to not my point i guess i'm not making a i apologize to make myself clear i don't think we have to infer anything we know for a fact that it was mr denniss conduct and his blood alcohol level in particular that was the reason why he could not be arraigned the entire day on july th when he was supposed to be arraigned that morning and check in after that we know that for a fact that that can't be the responsibility of his there is no evidence in the record on a summary judgment basis that the employer isn't part of the judgment as a matter of law and those aspects are consuming alcohol or intoxicants for a period of eight hours before going on duty there's no evidence record evidence in the record that he did and then to the pated he anticipated going on duty after his arraignment which didn't occur because  alcohol level and because one of the four aspects of conduct for which he was terminated was he shall not consume alcohol to such a degree in paris is on duty performance it's in your honor what was what act was no evidence that the deputy dentist was impaired and so while there may have been a higher blood of will than would normally legally be he would be allowed to drive deputy pearce says i couldn't tell that he was  any was he allowed was mr dennis allowed on a regular day when he wasn't being arraigned was he allowed to come to work with the blood alcohol level over the legal limit and dr if the court makes decisions about what the employer's reasons were for the termination and they've short circuited the process in fact u s postal service versus  that we don't give the employers nondiscriminatory reason until that step two after the prime official case has been made and ortiz versus norton reflects the same idea  is that you have to be allowed to present comparatives at the initial stage and if the treatment of comparatives is so narrowly conscripted that it basically shortcuts and you don't have the stage to prove the inference of discrimination that she can use it at the primacy stage that's correct you're ok i just want to make sure ok and here's a case that hasn't been briefed yet it came up after no longer have to prove that every single reason given by the employer is false under boston all you have to show is that the but for of the protected con characteristic or the protected aspect if that hadn't been involved the adverse employment action would have been taken and here we have a compared are who did the exact same thing as deputy begins and ends according to the district court at the prime station level and the district at the point there once your client is not disabled does not have a disability under the a that is not what she held your honor and i respectfully disagree that a d h does not preclude alcoholics from being protected and in fact if you're talking about alcoholism as a staff what if if you do something when you're drunk that is conduct that that is not protected because you now want to lead you around out you're an alcoholic and you have alcohol in rules evenly with regard to all employees so when the employer gets a chance to say conduct the district court is not entitled to short circuit the prime offi well he's clearly guilty of it in fact when the district court said that munford reasonably believe the dentist had was supposed to be on duty she made a factual finding and that was not to be in favor of the employer and when the employer makes a defense which actually was articulated by the employer in this case when the employer says we had a reasonable good faith belief that automatically involve the concept of pretext the employee should be able to challenge the validity or the accuracy of the employer's quote unquote position that we reasonably believe something now in this case what was vitally important that seemed to have been missed by the district court is the whole reason pearce wasn't even tested was because he had been drinking in an off duty capacity and yet if they'd done the investigation and we know that from trujillo versus specific work and smothers tell me how it came i don't know the exact citation your honor but it's in my funny yes it's in the primary brief i asked commander munford why he didn't test pierce and he said that was because it was off duty conduct so they had to come to people who engaged in the same behavior oh and here's the other part the whiskey while they engaged in whiskey walks for more than a year and everyone knew that they got drunk when they drank together so everybody in the command staff knew that these were two drinking buddies who got drunk when they drank together and they neither of them appeared to be impaired so they were as close to an identical compared as possible and yet into mumford said i'm not going to test him because he was treating honest freetime so a jury and i grew up in the less than stellar circumstances but a jury could say below knee when they hear the story of the sheriff's department about why they subjected pierce to no test no discipline even though he drove dennis the next morning and i see i'm running out of time so i'd like to reserve the remainder for rebuttal if you don't have requests i have a factual question for you what was the timing of the decision not to tell us when when when did they when did they have information that might have put them on notice that they needed to test it was that morning runner i need can you do better than that because as we can see from the from the plane half the blood alcohol tim's to go down it doesn't matter but but pierce went to the sheriff's department after he dropped that this off at the park county sheriffs for the arraignment and went into work and there was a one or two hour period there in the morning between eight and ten when pierce spoke with mumford that simon's cochran and mumford had phone conferences  so at any point in time there mumford could have chosen to do so but chose not what what i mean i guess i'm just trying  to flesh it out a little bit what time does the record show they knew that your client didn't make it to his or was too drunk to be arraigned my belief is that it was about eight  thirty i don't know that it's in either of the briefs and mr martin answer that question maybe a little more accurately than me but it was early in the morning thank you  good morning your honor josh parks on behalf of sheriff janey fitz simons i want to make sure can can everybody hear me yes thank you i had some issues with my computer mike earlier this morning  very well set forth in the record below it terms of sergeant pierce's drinking but what we do know is that at the time that the sheriff's office  information about sergeant pierce's drinking it was very unspecific it was after it had been told that that sergeant dennis couldn't make his arraignment by the neighboring county so it was after ten o'clock in the morning and at that point there was a meeting about what to do with mr death where sergeant pearce admitted that he and dennis said that he had consumed alcohol that night but there was no information about how much alcohol the sergeant pierce had had consumed available to the sheriff's office the information that dennis is counsel is telling you  comes from mr denniss deposition testimony which you know which which was obtained months later it was not available to the sheriff's management so it had no idea how acting normally that morning i had no overt signs of impairment so so that there wasn't any conscious decision oh we need to test this guy too it was it was just apparent that he was he hadn't violated the workplace rule because he wasn't there we know i mean i'm not sure i understand why that's even material and it should we don't know whether or not we don't know whether sergeant dennis was acting impaired at seven am either theory i mean the question is should they have knowing what they knew about sergeant piers the fact that he drove sergeant genesis seven am to to his arraignment and knowing that they had both drank together night before why isn't why isn't that relevant in terms of trying to establish that inference of discrimination that you have to establish as the prime facial stage of this record did consider this a know and then secondly that he had violated workplace conduct rules right but then it was but the burden on the plaintiffs is to use to show that despite the fact that you're saying that this was the reason for his you know termination and despite the fact that we have the carb out exception he's still entitled to bring an a b a claim and try to prove that what you're saying is not actually what you did what you did and that you're not telling the truth essentially and and he you how do we you know to tell me exactly why assuming that evidence should come in at this stage why it's not acceptable compared  wo basic reasons and then their very very important one and they didn't have a test result they have no objective way to to understand that sergeant piers was impaired so they couldn't secondly unlike sergeant dennis who whose conduct failed you know made him unavailable to for work and to be on the status that he was supposed to be on  know sergeant pierce showed up for work and was fully able to function at work and was available to you know for that apartment and then those are those are two very important facts that are hugely distinguishing between the two individuals so so that just a court was even if it is part of the prima facia case which i don't think it is but people can disagree they're not compare us for those very important distinctive rea showed up at work and was able to get himself to work because he wasn't going to an agreement and he appeared normal was was you know good enough reason to make him not a comparative or skin that's correct that they couldn't with the information they knew they couldn't possibly charge him with the same policy violation i'm talking about letting him be at work if they suspected he might be intoxicated because that was one of the reasons that they terminated mr dennis is because he would have been on duty test to be able to measure the level that he was there and they couldn't administer thank they presumably minister on alcohol just sheriff's officers occasionally right they could have administered they have the make sure he also was not intoxicated but they would have had some indication of an impairment level sure you don't move in that you didn't move your motion in the district court was only two for summary judgment based yes correct the other point i want to make in the time that i have as well is that you know congress made this carve out for a reason that it indicated it didn't want alcohol or employees to be in a favored status over regular employees who violate workplace protection or non protection for this category of folks and here there isn't a disputed fact that the facts that underlie the sheriff's office termination to parent level that was measured by the machines at the jail at nine o'clock when he was supposed to when he was told he was supposed to be on call and available for duty on a sunday status so he's undisputedly impaired  at work you know dennis wants to argue that that's not a violation but but that's that's that's not a dispute a fact that underlies the employer's defense  grounds to discipline and terminate him for conduct that brought that himself and the department in disrepute which was one of the policy violations his conduct demonstrated  disregard for the integrity of the judicial system and and the neighboring and the relationship of the neighboring jurisdiction sergeant dennis was a was a detective sergeant and a lot of times their cases go beyond jurisdictional boundaries to two neighboring jurisdictions like park county so they sure had you know that the sheriff's ability to impose that off conduct the off duty conduct rule here was absolutely appropriate and whether whether mr dennis you know disagrees with that doesn't create the disputed issue so we believe that the things that i had mentioned were disputed but but they weren't those things happened this would be a different case if sergeant dennis contended that  terminated employee made a very similar argument to to what mr dennis is arguing here in that case the employee was terminated for being impaired while on  duty the employee said well i'm really being terminated for my status not for being you know not for being drunk on duty and the th circuit said no here's why you admitted that you were drunk on duty to the underlying facts the letter of terminations rep references that conduct and that's and that's enough that  undisputedly shows that you were terminated by virtue of your conduct not based on your status there's not there's no difference functionally between what dennis is arguing and what mr little argued  circuit twenty years  ago because if you don't have no further questions you know i would urge that this court affirmed that decision of the trial court on all grounds and  much he drank so if commander monfort had asked he would have learned how much alcohol he drank so that's an important part there was an object they could have done an investigation but that's part of our pretext argument  something that's very important too is that the sheriff's department shouldn't be allowed to create rules that are subject of a saying you can't bring discredit to the agency because in fact the th circuit has held that subject of evidence can be considered pretext and the sheriff doesn't have the ability to basically say i have a rule that says no matter what you do at any time if i think it brings discredit i'm going to be able to fire you that basically right