her helping us so thank you just nice to be here thank you crave our first case salema vs tobyhanna army depot  first question is not it's whether there was sufficient evidence to allow the retaliation claim to be submitted to the jury based on the fact that my client had shown evidence that he did have a good faith belief in requesting accommodation and the other two questions would be first impression questions for the court one would be whether you consider treating treatment when you look at whether someone is disabled and what if you do what test not adopt the christian standard and i guess that would present problems for your client because the medications were discontinued why why is that not appropriate standard when we're talking about the medications creating this we you can use that standard our position is that that standard was wrongfully applied in this case using the facts and light most favorable to us mr salinas certainly had a condition his medication was necessary it was prescribed had been described can you help me i'm his when you say his medication was necessary that that's where it looks like the rabbit goes into that because the search and we're getting from the other side is i think even if the medic even if some medication were necessary there was not a particular medication he had to be on that would have the side effect and then in your briefing try  find it but i there was a place where you said something like prescribe you new weight loss drug when others are ineffective lead to conclusion that no well no single drug was necessary drug treatment s that's true with the single drug business area and you could move between drugs explain how that isn't fatal to your argument here ok i would explain it as he has a morbid obesity and sleep apnea he needs to lose weight it's a medical condition and no matter what medical medication a doctor prescribes this was prescribed he had been on the nickel for four years sure but your your assertion here as i understand it is is not that the disabling condition was the apnea or the obesity it was the gas or it testicle castro in heston or affects of the medication  no only because although i'm not saying his sleep apnea which i think can be disabling because you can't you could die in your sleep but nonetheless in this case we are starting that his gastro condition along with his sleep apnea those are both in the complaint in order to treat the his underlining condition of obesity he has to take medication it's described by a doctor i don't like to think i don't think i'm through some trouble more time and i apologize a ssume for the sake of discussion that we except that there is an underlying this able in condition that we accepted for purposes of discussion that obesity was planned and apnea was planned in that they are disabling the but my understanding is that's not what this fight is about this fight is about the side effects of the medication that he was taking associated with what you're saying or disabling condition so my question to you is if you acknowledge is your brief appears to acknowledge that no single medication was necessary and there were medications that didn't have this side effect isn't that an acknowledgement that the side effect is not a disabling condition no because number one nickel for four years my doctor says we're changing it no employer should say you need to change it back to the one that wasn't working for four years because you're still morbidly obese you still have sleep apnea no employer should have that control of the tell us what medications we should and should not that's not a record your record here says that when he realized that this was a problem he went to his doctor and his doctors took him off the medication and basically said he's not on the medication anymore he'll be just fine he won't need to use the bathroom like this and more so what evidence is there that there is a drug that is medically necessary i e that he has to have that causes this condition which drug is it there's ten you ten you wait there's laxatives that were these were all prescribed it wasn't got took them off of them didn't it didn't doctor take him off because he was going to lose his job he had no choice he was choice he was faced with either i stop taking my medication for my health so you're saying the doctor did something contrary to the hippocratic oath if you will by saying by taking off that a medication that he absolutely needed  and saying he really would be just fine no i don't think he's violating his oath that when a patient comes to you and says i'm going to lose my job if you don't you know take me off all medications because you know the no they're giving me a hard time what is medically necessary medically necessary means as a doctor says that you have to have some medicine because you have a condition that is medically necessary that's why i think that's right i think where we're having the trouble is that the record is elusive as to where it is that that you can point to that there is some debilitating medicaid medication has years and then where the problem arises is that he becomes diagnosed with sleep apnea in an around the time period of october and what he was prescribed tenuous if you just look at what the doctor says however  samples are given out by a doctor and the doctor freely admitted that and he was given a laxative all he needed was to be allowed to use the restroom that's all he needed he still got his work done is there does the record suggest stop being treated for a medical condition when it has no problem i'm ok i can deal with the side effects of this medication i just need to go to the bathroom well more frequently than the norm the pollution make me not be treated that's i guess that's the disconnect for having as we were trying to find the record where it says the employer said you have to not be treated well what the record does say here's your client's words your client's at this time i'm on medication that rest more than i should i'm going back to my doctor see if you can give me different medication it won't make me go to the restrooms much then goes skipping a little bit i realize that this isn't a problem i will resolve this problem as soon as possible i didn't mean for the situation get out of hand now i'm not sure how you read that except to say here's a guy who's interested in keeping his job and who recognizes there is a problem with his job and who believes he can work with his doctor to find a medical alternative and that what that says he is hopeful that he can find a treatment that doesn't require him to go to the to the back and less frequently and the doctor in fact gives him some different course and in his testimony says you know you can switch these things around so that's that's the record we're looking at help us see what you're relying on in the record that says there was a medically necessary drug and these people pushed him off of it my client testified and that's just one piece of evidence if you look at all these affidavits and infer in our favor that should have been a question that a jury decides but he had stated that they were pirate him don't come into work don't come into work this was before he had the december ninth two thousand and five slip that said i'm one hundred percent he they said  you can't come to work you should go on short term disability that is employer having a problem with the medicines that he's on he's still one hundred percent productive you just have a problem with the fact that he is going to the bathroom he's still getting his work done i think we understand what you're what the human side of your argument is but let's go back to your your issue that you think is the christian that it's ok to use the christian as but here  your argument is that it wasn't properly applied are you are you suggesting that it would be to almost an impossible threshold to require years yes and if you look at the sutton case from the supreme court it says you shouldn't focus on should a what has and what the might here we have someone who was already prescribed medication unlike the christian case which it was a blood cleansing thing the individual was not actively having that procedure done to differentiate the christian case from our case my guy was already on medicine by the time that this became an issue it wasn't that  oh he might need this medication he was already on it so i think we can reach the christian threshold if the court decides that that's the proper you have no trouble with the christians that's perfectly fine it's just as well i wasn't properly here i think my looking at it is look at the supreme court the sutton case is the best case for us because you look at the treatment of the medical condition and you know oftentimes employers escape liability because you look at treatment how come i can't look at treatment in this case which shows that my guy is just stable because of the fact he has to go to the bathroom when he comes into a building he has to scour the vicinity to find the bathroom most people don't have to do that that he is different than the general population and that's because his discipline is underlining his conditions of obesity and sleep apnea you want  to focus on a mr salinas individual experience correct and that's what sutton states and was there enough for us just to get to the jury we're not asking too when we're only simply asking to get to a jury to he was prescribed medicine at the time that required him that made him go to the bathroom so we comes down to i mean it's fair to say isn't it that the central issue is whether the medicine was medically necessary  to me you have to look at that you can't just single leap say one little thing you have to look at the whole his whole situation so what other situation do you want to look at see when  i'm trying to pin down because i think it's doable what the issue is that you think needs to be decided by a jury i mean you would go to a jury and say this is a very sad case you have to go to a jury and say this is how this millions case meets the legal definition of a disability my understanding from your argument before this report you briefing here in your argument was today is that the disability point yes and therefore the only issue as to which fact would be genuine and material is is the medication medically necessary that he's on treatment which are some clues medication to medications or anything in the record about a treatment that's different from medication yes he had a apparatus for sleep that he had to use that would all go into the fact that he's disabled but that's not the only issue here i'm looking also that retaliate i  nothing to do with going to work well it did because of the fact that i'm overweight and it's hard for people to understand because if you're not overweight you don't know the struggles that people who are obese go through and so it was because of his sleep apnea because of his obesity that required the medical treatment which he was on for four years whether the treatment changes over time that is not an issue because the fact that the the doctor testified that he needed it is sufficient for us to get to a jury because we are allowed to show an issue of fact that not only am i arguing that issue but also the fact that they regarded him as disabled they put him they wanted him to go on short term disability that should get us to a jury in this case retaliation a good faith belief as a matter of law you shouldn't i had evidence that he submitted a note that was authenticated there's no issue there how do you say that he  you know that wasn't a good faith belief you have to give us the benefit of the doubt the the nonmoving party ok thank you for your rebuttal thank you good morning my name is kate marshner i'm representing the federal police department army in tobyhanna doco i was provided with three minutes this morning to address the issue of joint employment our position has really been set forth full in our brief so i was like to rely upon that but address any particular questions the court would have about join one that i'd like you to respond if you would to each twenty four of the reply brief in the case where  a value waited to see if it can properly support the conclusion fell behind it was his joint ploy or what's your what's your response to the assertion both factual and legal that as a fact they force them to take away off and second but that's a factual assertion not a legal conclusion which we need to accept as true and which could be to the conclusion that there is or was joint appointment well plying ball in this court file or decision you separate the legal arguments from the factual i would say that is a factual search and that they forced them to take a lay off but what i would say is that that's not enough to meet the elements section we'd like to be out of this section would you consider a transfer of him and then they were told it would be dealt with and the next thing they know they're being told that he took a layoff you know i also think the record reflects that it was a voluntary layoff by joint employment you have to lodge anough acts to show that that tobyhanna exercise significant control over these employees to say that they were the essence of the employee if you look at the graves case there were allegations that the county paid the person salaries that the county selected some of the individuals that the county covered them with their permission personnel policies county told them that they were employees and there any evidence here that as a result of that meeting were based upon some agreement or as a matter of law what tobyhanna said to the contractor was something the contractor had to do there's nothing in the record reflecting that to be had i had to do it in fact when mr morgan is the one that said that we'd like to have this  employee transferred and he talked to his point of contact with an tobyhanna and said that asked her like do something about the she said look this is the stews issue this is their responsibility they have to side were to apply it and that was in her a may please the court my name is stephanie lewis i'm here on behalf of defense support services referred to throughout the briefing as d s to you your honors have highlighted the critical issue in this appeal with respect t disability discrimination claim which is whether the medical treatment that caused the alleged disabling limitations was medically necessary is it appropriate for us to assume that doctors prescribe medication that is medically necessary such that when the doctor prescribes it and then takes it away there is at least an issue as to whether it's medically necessary because it was prescribed in the first place that would not be an appropriate assumption because you have to look at the record evidence of what the doctor said was medically necessary and the doctor here said that there was treatment for obesity that would not cause these limitations that he had used effectively before and in fact there's no evidence in this record that anything that the doctor prescribed would have caused the limitations complain the argument and that the earlier medication wasn't effective and so the doctor and the patient continue looking for something effective that would not be an argument judge prodder that's borne out by the record dr  interchangeable equally efficacious and that if he had known of a problem go ahead i'm sorry if he had known of a problem he would have discontinued it and in fact that's exactly what he did as soon as he became aware of the problem but how far does christian go does it say it has to be medically necessary and obey the way it has to be more medically necessary than some alternative treatment has to be the only medically necessary or is the threshold that it has to be medically necessary sufficient christian requires both that it be medically necessary and that there be no less restrictive alternative that one could elect that would treat the condition and that by the way is entirely consistent with third circuit law on election of less restrictive alternatives when we're talking about medication choices and i mean it's consistent with the diabetes also let's say if somebody has a condition let's say as a chair and they are some during work hours it gets in the way of the work that's not medically necessary well what you've just asked did not didn't give us enough information about what the medical provider believes is medically necessary what the medical provider believes are the less restrictive alternatives just convoys decision does not require you to go so far as to reject the learned decisions of the medical profession but do you think that the christian that christian would require somebody to take the lead to take less effective medication because it wouldn't interfere with work in that in the in the medical judgment not the person's judgment but in medical judgment and here the yes yes if there is medical evidence that there's a less restrictive alternative about less effective i don't believe christians affective equals less restrictive i don't believe christian requires that result and i don't believe you're required is in a sense all academic because there's another basis on which liability could be base what's your response to that in terms of the regarded as claim there are several third circuit decisions that have already rejected the proposition that a suggestion or statement about short term disability which is  statement here could equate to a perception that the person was disabled within the meaning of the a t f and on this point it's important to note that the eighty eight amendments of two thousand and eight do not apply in evaluating the perceived as claim and that the law and the courts that have evaluated that have said that there was not a clear statement of retroactive intent and in the third circuit the courts have looked at the regarded as klein in the context of statements about going on short term disability and have that his his own words which we have to take in the life most favorable to him show that he certainly perceived that he was deceived because that's another part of convoys decision that he couldn't reasonably thought he was disabled but that that's that's just not so when he said the things he said it reflected that he thought he had a disabling condition what's what's wrong with  disability judge convoy correctly noted that to having gauged and protected activity for the purposes of establishing a prime a fashion retaliation claim he would have to show that both he had a good faith belief that he was disabled and that d s to me you thought you had a disability why couldn't a jury have looked at that and said that showed he thought he had a disability because in the taylor case in the third circuit the third circuit has already acknowledged that the whether it's a request for reasonable accommodation depends on the prior notice and knowledge that the employer had regarding the condition and whether the employer would have believed that the individual was requesting assistance are you talking about what the we are believe question is what is he believed well what he what he believed and what the employer believed again or are co extensive in this case his statement to the employer prior to turning in that doctor's note was i'm not sick and that was when in october two thousand and five he was approached by johnson and his team johns said we understand you're away from your work station frequently and for excessive periods of time what's going on and salema responded to him immediately before turning in a doctor's note by saying i'm not sick it's a medicine that i'm taking joe johnson said bring back a doctor's note about the medicine the doctor's note was simply in response to that request and only said due to a gastrointestinal condition ed may need to use the bathroom more than the usual but at the same clearly clearly your client was aware of the bat the need to use the bathroom or that's been said all this in motion but remember that for protected activity for a request for an accommodation it's not enough to be aware of a need for assistance you must believe that there's a disabling condition that requires the need for assistance he's already said i'm not sick he turns in a doctor's note and then he at the same time is answer some questions about the doctor's note in writing which judge jordan read earlier in his own words he says again i'm not sick it's medicines that i'm taking and i will go back to my doctor and we will look at changing them he did not exist back to the original issue is  the side effects of the medication create the the difficult well there's no case that says that a side effect of a voluntary medicine that's not medically necessary that that the doctor doesn't even believe is medically necessary could be enough to create a disability or state a claim for retaliation so that's really what this is about it's a fairly simple case in on this record of medicine that he voluntarily chose to take that was not medically necessary that the doctor did not say was prescribed or would cause the limitations and that the doctor in fact removed him from as soon as he knew there was a problem and the doctor was very clear that he would have stopped the medication if he had known there was a problem earlier there in this situation under christian if you assume he had a condition we've preserved all the arguments that he doesn't have a condition but regardless of which tests you apply you end up at the same place that this treatment that caused the limitations was not medically necessary house on and i may not be reading correctly been christian that talk about disabling treatment be truly necessary not merely an attractive option is that what you mean when you say least restrictive or does it use that language least restrict the not truly an attractive option is the language that i mean generally disabling treat and must be truly necessary and not merely him attractive option ok and then it says obviously can't be consequence voluntary choices exactly and just to build on that point briefly i mean in the third circuit and in every circuit to address the issue the cases have held that if you are choosing to either not take medicine or take medicine that's causing a disabling limitation when you could elect a different course that eliminated the restriction then you don't have a disability so that's consistent with well established law it doesn't require you to to reach into an area of first impression i would in my few minutes remaining just like to say there are several alternatives bases for affirming judge convoys well reasoned thirty they regarded him as disabled when they told him to go on short term disability the they're trying to create an issue with the short term disability that prior to being a lawyer i was in human resources and what does an employee have to do they always have to go on short term disability before they go on long term   the case that they cite was i think i don't know if it was from the new jersey district court but it was affirmed by this court however it was there was no published opinion right was lucky so to me  have to look at they told him don't come into work you should go on short term disability isn't that saying or doesn't that raise an issue a fact that only a jury could decide whether that's he's disabled or not because of the fact that you're telling him not to come into work you think he has a condition isn't that the essence of regarded at regarded as has to be regarded as disabled meaning a long term disabling condition and it was in this case because they laid him off was or was not was why because they had all these jobs that have been opened over the years one hundred and i think twenty some just in two thousand and six alone had they once picked up the phone and called my kline and said hey we have another position recall as as a factual matter you know required as a factual he never met but you should not be using that against me as a plaintiff you should be giving me the benefit of the doubt in putting that the employer should have called him because you had over you know one hundred jobs in the next year that became available why didn't you call me if you in for the facts and light most favorable to me can i just respond to the question test aspect o ok it wasn't it was medically necessary because the doctor prescribed it unlike if i want to lose weight because i want to get into a dress on friday night i go out to the supermarket get dextre tram and one of lose those five pounds so that i can get into the dress that is not being medically required or necessary in this case he went to a doctor he's been struggling with these conditions still struggles and they were prescribed by a doctor that should at least give