it does not escape us that you are just st off i've been an active member of this court for over ten years now and i am well aware that the court is not required to order or argument so i think the to provide the court with nuggets that would be helpful to to address the issues in the case that maybe were not highlighted on paper decisions concerning mr thomas employment based surely on an independent medical evaluation of was of a physician who examined him one time your honor the disability you're on is the disability retirement decision the order for mr thomas to return to full duty is placement on leave without pay and his terminations were all so let me ask this you've made these points about this what you think to be a sort of unusual perhaps aberrational process and the question i have is assume these arguments that you made were made in the parallel state court proceedings where the actual merits of the disability determination were resolved to my right your honor i didn't represent mr thomas the disability well us assume a competent lawyer would have raised some if not all of these and it would appear that the decision was affirmed so the question before us is not the sort of the merits of that decision but whether there was something else afoot here that amounted to discrimination or some violation of title seven or some other disability or some other discriminatory motive or cause of action so what's the what's the evidence full duty without it's we have to look we don't have any direct evidence of discrimination st off so we are required in and we were required to use the mcdonnell douglas test to is there's no real issues to whether or not he was there was an adverse decision the issue ok excuse me mr mccormick this could you tell us what the adverse employment mr thomas was placed on week without pay that is an adverse employment action three we believe and this hasn't really been an issue that i think the court has addressed but we do believe that and they you know i don't want to trouble me about the case was that they had given you all of these extended leave periods and they'd given you this light duty and you wouldn't even talk to them you're in return any calls him you know or communicate or give them a status report or tell them well i think i can come back i'm doing this on doing that to try to october two thousand and fourteen to of about june of two thousand and fifteen when mr thomas requested disability retirement once he requested a disability retirement this is when the discrimination really started against him yes and in ordinary circumstances that would be fair enough and i'm not by any means saying that this is a perfect case however in after mr thomas requests a disability retirement and was i he still injured he's forced to return back to full duty then he's injured again after that he's required to either take a demotion or to go on leave without pay so he's all leave to fill in his duties as an employee by not answering are you saying that when you're on leave without pay you can simply ignore your employer's attempts to contact you no you aren't and that's a that's a that's a good question and this is this is like i said this is you know part of the more this is one of the more prickly issues in the case should he have returned to return the calls well on the one hand i think that one could say well you know of course you have to return perusal but i think in this particular case we have to look at the reason so he's he's not just on leave without pay he's challenging the disability retirement at this his his attorney has specifically requested that any any  communications go directly through him i would think that mr thomas would be concerned because we're talking mr thomas is on leave without pay from or around july two thousand and fifteen all the way until he's terminated i believe in the pool of two thousand and sixteen so during this entire time he's he's not receiving paid it really is no reason for the department to contact him but more importantly i think that he would be incredibly concerned about receiving the call and what does he do if he offended you know what he would be going against his attorneys wishes if he's answering the call so i can i can certainly under understand that but in any event whether whether it's it's that he was he was the he may have been incorrect in not answering the calls or not in this we must recognize the mr thomas in this case so could he have had a legitimate reason for for not answering the calls i think so but more importantly this satisfactory performance as stated by mr rinsed  is based on your performance appraisal and if it isn't on the performance appraisal there would have had to have been some sort of communication for mr thomas now it's important here that the police if even if even if they had a right to take some action against and to me it seems like it would have been disciplinary action and i don't think that we should have taken disciplinary action against them considering the student considering the fact that he was on leave without pay and that he you know he had been communicating through his attorney through his doctor that he's on leave without pay and that he's not feeling what about the or to refuse but again in this case we have to look at where we were when the position is offered so he has been denied this billet he returned but he's challenging that decision how do you accept the the  the record specialist position at that time it could have affected his his standing in the police department he could have potentially have waived his rights to continue to pursue his appeal of his disability retirement and he would have been at a lower greed and salary been he would have been as a police officer so you had legitimate reasons for for  g the record specialist position at the time that it that it was offered mr maccormack on judge king and again i'm concerned where your factual basis is for racial discrimination what is the factual basis that would indicate that he was treated differently because of his race while you're on it again you know we're we're there  isn't any there were there were no comments that were made there were no statements that that were made but there were many actions from the police department does suggest that but for his race he would have been treated very differently every other every ok because the every other police officer were required to use compared and we did but every other police officer was treated very differently than mr t officer so he was granted a disability retirement based on dr mayne's medical opinion which but not what you want him to be we this it will be retirement decision the person says that your opponent on the other side makes two points about the letter she says st that the letter was a drafted by the the decision maker mr rense that by another employee with h r but then she points to the fact that mr instead in fact testified that when it came to the disability retirement of miss keys it was granted because there was an eye on me that said that she couldn't work as a police officer i mean isn't that pretty much dispositive of the claim knows the dispute effect they're creating they're creating their own dispute so now so you have you have a document that has been authenticated that says this is what the decision is based on and mr rense that is saying something completely different is a dispute fact well i mean the letter doesn't i don't imagine purports to be exclusive does it really get bigger i suppose you're you're reading it that way but i'm not sure that that's a reasonable reading of the letter well i think that you have to  she's our comparative but all of these other all of these other decisions they simply didn't use in i am me that was specifically didn't the i am me was not for workers compensation purposes however that i am me never the the i me from from dr free will never makes mention of of a disability retirement whether or not he should be the the request for disability retirement so in the army was drafted to enter tourney for the rd party administrator for the city so the the i worker's compensation claim was the city was in this particular case yes there's want to be a very good chance that dr freeman is going to say that is going to agree with you however doctor free from the rd i am me that the city had for mr thomas for whatever reason he said that mr thomas could not go back to work for i could that was after his need that was that was after he had another that officer thomas was not satisfactorily performing his job because he was out of touch for six months and there's no evidence whatsoever that mr keyes engaged in the same think the think that we can if you if you were to believe that the main reason let's say we isolate isolate the issues right so if we just focus on of we're going to maintain contact and we believe that that's an issue well then and we and we consider the set of we consider that performance then we must look to policies of the department in the city with respect to performance and i asked mr instead how do you determine performance well performance is determined by your performance appraisal been you have to be given notice in an opportunity to cure so this so there was there was no written notice yet they may have said you have to you that's best well they kept sending email why doesn't that serve as unanswered e mail kept asking him to get in touch why wouldn't that services notice you're on an yes so so when we talk about on an ensuite e mails with been an extended period of time again there's no there's no provision even in those e mails that if he if he failed that there's going to be that mr thomas's attorney was also involved in this at this time so we have to be we have to consider the time i don't think that we  addressing something that mr mccormick just discussed and in the whole process of a disability retirement application so that the record is clear what occurs when to an employee files for disability retirement they submit an application to the h r director and all of the evidence but the selection of that physician in the i me is going to be the basis for making a determination so it is per the city code that mr wrenn said at the time that that the appellant had regard to the comparatives i just sort of want to touch on that briefly because it's the city's position that the denial of disability retirement is not an adverse employment action and we still maintain that th disputed issue of fact one a lot of the suggested mr etc lied solely upon the advice of the treating physician and then there's testimony that suggests otherwise so why how do we resolve the conflict because the letter wasn't written by mr instead and it was written by someone who was not well he signed it though didn't i would have to double check and i can't say off the top of my head one way or the other but i also i do want to point out that at the time that mr after there were three employees that submitted an application for disability retirement misty's the appellant and then there was a rd individual who is an african american male who had an injury who submitted to an i me as well in that i am he said that he could not return to work as a police with being a police officer and mr and the appellant had a no need that had to miami's at that point that said that he could return to full duty as a police officer and that was the basis of the but i don't see how that amounts to an adverse employment action but even if that's true i mean you're not disputing that there are other adverse employment actions that satisfy that element or you know i'm not so the city the city of knowledge is that the policemen on leave of compare is it in all of that are all related to the disability or retirement and how he has failed to address in any meaningful way that the leave without pay aspect and his sort of touched upon the termination which all of which we'll get into but the vast retirement board then when they opinion saying that the appellant was capable of physically performing the job functions of a police officer he appealed to the circuit court for entering the county the judge there affirms the decision of the board and then it was appealed to the court of special deals where was dismissed because the appellant never filed a brief so he did go through his sort of due process rights as it as it relates to the merits of the disability retirement and  keenan with regard to the two adverse employment actions we have here believe without pay and the terminations from your perspective those are the only two dollars were there any evidence regarding employee conduct or regarding other comparative criteria with regard to the term a nation of his employment or the placement on leave without pay i guess i'm struggling here to see where to compare of your evidence is other than key as it relates to disability retirement so could you tell me what the record shows from your perspective regarding comparative or evidence with regard to leave without pay and terminations and employee misconduct in other words that there were people treated differently than issues there is the city was never faced with a scenario where someone had been cleared to return to work on multiple occasions did not want to to the point of actually admitting he did not want to return as a police officer but also failing to remain in contact with his supervisors there's never been any other scenario where that has come up and he had a good seven month period to correct that deficiency which was you satisfactory job performance of keeping in contact with his supervisors as he was told numerous times to do there's no other there's no evidence of any of anything similar herm with other officers or other employees within the city of nablus this is a case of st impression as as i indicated in one of the briefs and so the only i guess it topic that compared to evidence could be brought into the cases with that disability retirement process which we have meeting does not in  emphasize again that that the appellant hasn't really addressed the leave without pay adverse employment action and hasn't really provided many arguments in support there of it's been mostly on the termination but at the time he was placed on leave without pay and the dates were and fifteen years of short term disability so he was on a form of light duty or medical status for well over a year he was also on f m l a in short term disability so he didn't go on leave if there is a employee who's going to be out of work for medical reasons the employee in their supervisors will come up with the best way to communicate regarding updates of their medical status and as everyone is well aware there were several phone calls that were made or smells that were left emails that were sent in the in person communications from the appellant supervisors but he's still an employee of the city he has to remain in contact with his supervisors and there's nothing evidential or wise to indicate  there was this expectation that any updates were just a phone call back saying hey no medical updates i don't have anything to provide that was an expectation and it was a legitimate expectation of the city and the fact  that he refused to return those calls refused to communicate with his employees especially after the public safety disability retirement board rendered their decision there were still phone calls that went on the answered he hung up on one of the supervisors and he did not return his phone calls or reach out about that this lawyer was concerned about the fact that an employer case could use this sort of requirement of phone calls and messages and the like for someone who's out only as sort of a away as a trap for the unwary employee who doesn't miss an occasional call or an e mail and then say you haven't been performing satisfactorily i have two questions one you describe this process yes and it sounds like this is not something that was unique to thomas it's something that would have been required of anyone any officer who was on leave without pay there that is the requirement to communicate regularly with his employers that right that's correct yes you know if  there'd been maybe an occasional missed call or e mail i imagine that would be an entirely different matter but your point is that it's reached out in response to these calls and or e mails and as you i think pointed out of his will as this e terminations was the result of multiple phone calls they weren't returned and as i understand it there were some in person contacts  never in person reminders it didn't result in any constructive information and that this all took place over a seventy seven month period that the fact i do agree with judge ideas that it's not clear that the denial of a disability benefit on which an a porter is compelled to make a decision that would be an adverse employment action which i understand the chief made only after there was an extended period of leave and light duty provided the plaintiffs is that correct that yes that's correct the city code allows for the placement of an employee unauthorized leave without pay if they use all of their crew even in teams that they still cannot report for work so that's what he did to do it he'd shoot a bit more  you still he actually maintained only duty until the doctor for those i meet said that he could return to full duty he then he came back to work like i said for five hours and then went back out on light duty again and i think maybe a couple of days of medical leave but he was informed at the time that he would back out only duty in june of two thousand and fifteen that he could use all of his available leave that he had but if he didn't want to hit that point where he wasn't  left then he would probably most likely end up on these without pay status so i don't know going into his initial injury march th two thousand and fourteen how much leave he had accrued at that point but i will say he had got department's efforts seem perfectly reasonable and even accommodated and then you know i ask myself well the reason i don't think it has much of i mean i think that's a lonely law you know seven months is a long time to go without letting your employer know what's up as it is a lot of those it just bothers me but honor mr mccormick you've got some in light of what you just heard you have some time for rebuttal so why don't you step forward on unarmed give us your  thank you on you don't know st off can you hear me yes i think st off let's let's talk about the dates st mr thomas after he was injured he went out on from august and so until june when he was ordered to return back to full duty now the order to return back to full duty base accommodations requests requested light duty accommodations and was written and with did not write that accommodation when he was forced to return back to late duty in june of two thousand and fifteen so at a minimum that was a denial a request for accommodation in addition to that knowledge know that your honour's the panel is concerned about the seven mom period we're  the city is indicated mr thomas hasn't contacted his employer but that's simply the simply not true the the the well well let me let me rephrase it mr thomas contacted the employer in provided the information that they were questioning so the employer was requesting of updated information on mr thomas's medical status he provided that through the attorney and through his doctor but with respect to contacting his employer actually speaking to his employer no he did not do that however he did comply he sent them back a message saying due to my complicated employment situation i request that all communication be made through my attorney did he did he do that during the seven month that it was more than one discussion and that the discussions occurred either before shortly before or shortly after the hearing on the disability retirement so would have been mr i think that mr thomas was there with his attorney and they were communicating in this to the employer because when i did look i did look for that in the record and i was unable to find it but that doesn't about whether or not there was a competitor for the terminations for the leave without pay d and in the reason why we didn't provide a comparative is because if you if you're injured you get a disability retirement and if you have a disability retirement and there's no need to terminate you so there wouldn't have been a competitor because no one else was terminated while they were still injured and i know th that mr thomas wasn't injured and that's why they were able to return him back to full duty but but mr thomas has his according could not return back to duty mr thomas according to mr dr free or had a twenty two percent disability rating and was still returned back to do so the varying decisions for the i am me on i am for but i am more than willing to provide other things there would be the kind of thing that would be mentioned in our brief right i'm sure that i'm sure that it's either him is that it's either in the certainly provide a very short you know one wanted to pay each additional brief just pointing the court to where does point in the court to to to those references more than happ