it's a disabled retired police officer and that turn with p t s d he had in order to earn a little bit of additional income then donating plasma at the site of the defendants yes all plasma for a period of about ten months having gone through a lengthy medical history to begin with during that time he our position is the policy that c s l has in place that says we defer to you if you have an anxiety disorder and you're using a service animal is discriminatory without an actual legitimate basis and that is violates the ada getting so but the argument would be that even if it did apply they tried to have some type of accommodation could have accommodation if you were to give them the evidence that would be needed that suggested accommodation dishwasher sherry but it didn't do there well i think it would be slightly different if they asked him to get a note that said despite his use of a dog he is safe to donate with it because of course the defendant and the pallies position on this is our policy is in place because if you use a service animal  associated with an exiled disorder that means your disorder is so severe that you pose a risk to yourself or others in our facility and our position is there's no evidence in the record even the the expert that duration that was submitted to supports our judgment to support that and the eighty eight dollars requires that if you're going to have discriminatory policies which you're allowed to do for health and safety they have to be based on actual risks not mere speculation stereotype or generalization and there was no evidence on what i would submit is the affirmative defen of the defendants that their policy is based on any actual rests in fact i would submit that the evidence that does exist in the record suggests that just the opposite in mr my biases case his condition was tether how would that work well but the fact is that there's there's nothing to suggest that he was anyone likely at the time that he came in with odin to have a panic attack and he had been since the beginning suppose that there c s l had a policy that anyone with a service animal for psychiatric support had to have a letter from their doctor saying they could safely donate and with their service him if suppose that was the your post that's a different policy and you know i haven't analyzed that's a policy it's a policy but it doesn't discriminate against people who use service animals which their current policy does it says ok maybe we need a little bit extra information and then we'll allow you to dump it does it does take a position is look we we've  taken a look at the question of the use of service samples and we've looked at why people use service animals and anxiety is one of the reasons why a person would use service animals and accordingly we've adopted this position that if someone is taking two medications or is using your service animal that that means that they provide reasonable accommodations for people with disabilities and their policy is not to exclude people if they have anxiety because if you're if you had an anxiety disorder he disclosed his anxiety disorder at the very beginning he disclosed the medications he was taking for and so they don't have a policy that says he just was that he had post traumatic stress disorder he did it and was on medication for ok and he went ten months donating regularly without incident nothing changed with his condition except perhaps that it got better when he got his dog he came in with his dog and they say because you have a dog and an anxiety disorder you're not allowed to die are you let me ask you a question on how  evaluate this discrimination claim you talked about to see a sales position be in an affirmative defense it looks like the district court of sorts used to mcdonnell douglas byrd shift us yes do you think that test is applicable here i do you do yes go why well because i thought in your brief you never say universe said that your brief well i think we have the mcdonnell douglas test and the the regs that say you penn have a discriminatory policy if it's based on actual risks  which i argue requires the defendant who has the discriminatory policy to demonstrate that that policy is based on actual rest and i think that that is very much in line with mcdonnell douglas ford and shifting i mean that's not a of proof matter you have to provide evidence as the defendant on your opponent of defense that would allow that conclusion by the jury because the i think you do you're combining two tests here i have to demonstrate an actual risk if you have a discriminatory policy and there's been no demonstration of actual risk but it's a little bit difficult but you usually go glitches pay somebody get rid of me for discrimination purposes  then you go to the employer and the employer says no here's the reason we got rid of him or her and then you go back and say wait a minute no that was just that was a rationale a pretext for  to what they just said the real reason is not why is they said here it's a little different that they have a policy it's not a policy to the starts off the says we want to discriminate against  your client it's that we have a reason for believing that a service dog absent a hearing or sight impairment is a is a problem and you're saying no wait a minute best analytical framework for analyzing this case well i think you have the right and the test might be slightly different but my understanding of mcdonnell douglas is it can't just be that defendant would have to demonstrate some level of actual risk associated with a policy before the burden shifts back or to establish their permanent so what do you make of their experts  after i think they're experts affidavit the opinion in there is that the one opinion that i can find having read it many many times is that people with severe anxiety may pose a risk in their make sure i understand what you're asking for here and why you're asking for if you're saying that the district court was incorrect in granting summary judge genuine issue of material fact is whether there's a correlation between the use of a service animal prions i v disorder and the severity of the anxiety and whether their policy is appeal which is the whether or not the plasma collection center is a place of public accommodation well let's start let's start with that the title here the talks about among other things a service establishment and why isn't this a service establishment very well you're one of the you have  why isn't a plasma set or a service establishment there's several reasons your honor the st and foremost is that it provides no service to the public provides no service whatsoever to the donor well what happens is he comes in the no one can do that but it was blood beings wouldn't accept blood that they don't extract either you're on the point is that this center exists for the purpose of collecting raw material for manufacturing it's the st step in the manufacturing process isn't that a service no the service there is no service rendered no what it what is it if it isn't a service it is the collection of a raw material in the same way that any manufacturing facility collects raw materials whether it's coal timber you know oil petroleum whatever him to accept the argument that has been made by the plane to in that sea if you go into the public or the open is open to the public there it is important the front door of course is open to the public and that is a necessity or one hundred because we're collecting the plasma out of living beings so they have to come to the center is not something that one can do in a blood will be able it's not something people can do in their home it has to be done under these conditions so the do come to the front door but they do not automatically get to go to any other portion of the building namely the donation floor and that is highly restricted and that's really the key element of the difference between a commercial facility which we acknowledge  call well i if i may respectfully disagree on that point your honor for this reason in it goes back to two different concepts and i think that sometimes it's overlooked and certainly the plane to mr mathias is counsel of the looks of we're dealing with two different categories of establishments under eighty eight dollars title three we're dealing with commercial establishment which are defined in the statute and then we're dealing with places of public accommodation every print every establishment every commercial establishment many places or commercial establishment let me put it this way one court did every place a public accommodation is a commercial establishment every commercial establishment is not a place of public accommodation the difference is that only that type of thing now as to your honor's point about casey casey is an interesting case but the fact of the matter is what was alleged of the claim there the golf course of course is listed as one of the places of public accommodation the statute the was whether or not the competition part of being on the golf course it wasn't the issue of whether or not you could be on a golf course because a golf course is expressly listed among the places of public accommodation in a standard oh let's assume we have a farm on the  honor to separate well i see the point that you're making the analytical tension there is that the court said we were a place of public accommodation and then went on to hold that we had a legitimate nondiscriminatory reason or that we were he had a legitimate concern about the safety and the ability of mr vines to don't need safely without posing a direct threat to others that's more or less the basis i think that the proper decision should have been the court if the court had found in this court of course confirm an equal around can record but if we are firm on the st so to speak can we get to eat i suppose the court doesn't need to get to that issue we would like the court to reverse on that issue because if the district court handheld that you were not a place of public accommodation it would not have been necessary to get to the discrimination issue because the commercial establishment isn't covered by that section of the s and that was misstated by the i think according to got it backwards well i think the court was quote actually the court was quoting if it's on page thirty of this record opinion she's quoting i believe paragraph seventy one in the state of the material facts but are state  individual of the all you don't or he donated some seven hundred and ninety times without incident that's that's true but every single time that he donor comes into the center to donate they go through a screening process hard the screening process is a very quick health test to make sure that they are healthy and another part of the screening process is each time in today it's done with tronic leaving the kiosk you fill out what is known as the uniform donor history questionnaire the d h q is a document that is prepared by the industry in conjunction with cbre which is an agency of the federal food and drug administration you fill that out in the purpose of that is your condition from week to week month to month can be different the dog was a red flag as to the possibility that his condition which was known is p t s d might be more serious in there is why he was flagged and stopped and asked to get a no so i hope that that purpose is clear actual risk and not unmirthful ecu lation stereotypes or generalizations about individuals with disabilities close quote based on the fact that what evidence is in the record that people with service dogs who in effect calm them down or are there to calm them down present the same profile as an anxiety patient who is taking various medications the the evidence of that is found in dr nelson's affidavit and i'd like to mention that person of all there is no other evidence in the record there's no contrary evidence the plaintiff did not engage an expert the plaintiff didn't put in his own evidence which if he wanted to he could still both by the fact that he never did bringing the note to justice restruck was point and the fact he didn't put any evidence on his own to justice fisher's point where is the genuine dispute as to material fact we say there is no answer to this one must understand that this was a medical professional medical opinion by a licensed physician the medical doctor the medical directors who work proceed as it c s l are not simply folks off the street like you like find in some you know insurance company that give you these great opinions policy is is to defer daughter who requires more than two medications if that's not until the medications or service animal need decreases next the policy is not directed to the use of a service dog as it allows service dogs for vision and hearing impaired it is my professional medical opinion that goes with severe anxiety present serious health and safety risk that's that's very conclusory what corroborates what condition such to have he could have an episode in the chair into judge point what would the dog he could yes but it but if it's i think the point being let's look at this on a case by case basis certainly he's done ninety times he now comes in with a service dog that otherwise is allowed for those with hearing and sight impairment yet and they're saying no you can't have it because we think that you are we'll be so anxious it's a safety risk and he you know obviously the st thing is well yeah yeah but he's given one hundred times there's not been a problem why the problem now i want to bring in something that makes me even calmer than those other ninety times so frick i'm trying to get past the generalizations of dr nelson what corroborates what nelson saying is it is a conclusion it is his experience working for some twenty five years and that at terms of ministration dealing with patients with p t s d it is that sounds like me telling my colleagues i spent nineteen years doing you know this job i know what i'm doing well they can look i mean go right you get out of here the point is the dog is simply put the dog is an additional element of risk in the center of their point because what the dog would have unlike the scene that the the dog for the blind person the person who needs help ambulating the what the dog would do to justice rostropovich point is he would apply pressure the only way he can apply pressure is by jumping up on the banner of the table to do that this man is connected to a machine that is sucking out his blood separating it but he had back in his body and by the way and i know this isn't really in the record donation floor may have fifty or sixty other donors at the same time sitting side by side maybe a few feet apart on what looks kind of like a levy boy chair having their blood removed and put back in their body having an animal on the loose that the hamper cannot control in it is his responsibility under the deal he regulations to maintain control of the animal at all times which the staff at risk it puts others at risk that's different than simply  could but in this person's case where he has this very good track record of giving the best of the past why is this general automatically applied to him the rules apply because the medical staff determined in their view that the presence of a dog because of the the governor's need or because of anxiety posed an undue risk to the staff into other donors on the floor and that is the reason now now could could they have gotten to that point i think what you're jumping which you're saying is we have a policy on service animals if they had just ask a few more questions and established on the record that the reason that of the plaintiff now has this serviceman is a heightened anxiety ok could they not have then women aided the question of whether or not it was an asset an actual risk but it seems like here what happened was there was this consultation somebody came back and said we have a  service animal i do not know donation who can answer your question your honor that was one of the reasons for asking him to get a note had he brought the note back that process probably would have continued it's similar it's not exactly the same he still safe to donate his condition is that materially worse them than before the question and would be does he really need the dog after all this dog wasn't prescribed for him by anybody it was a gift from his daughter and he trained it himself so who knows what would have happened had he brought the note back and he had further discussions occurred i believe the court with one other point in that is under the d o j regulations if i may just direct the force attention to section twenty eight dollars see if honor section this were to be a public place of public accommodation the regulations don't actually require service animals to be allowed on the donor floor anyway so judge fisher asked your colleague about the mcdonnell douglas test in the macdonald of the test in this area a number of different courts have considered this i think there are some uncertainty out there with respect to title three cases what the model of proof should be i think perhaps and i hate to say this because we did prevail on this issue given the analysis by the district court this may or may not really be a mcdonnell douglas case after all of the donald douglas case really goes to cases involving indirect evidence of discrimination in here we said exactly the reason for deferring gentleman having to do with his inside the i e his disability but i also suggest two things number one the plaintiff mr mathias seems to think mcdonnell douglas just applies and if that is the case then he also must accept the st requirement of mcdonnell douglas is which is that the his client be qualified to donate if his client isn't qualified to donate in the st place and he would fail with a gun and douglas twice in the seventeen period that's the maximum buy buy if the regulations not everybody needs for a long period of time that everybody donates every week it's just it's it is ok the point is each time they come in they are evaluated again on two scores they are evaluated to make sure that they are healthy enough on that day to donate in this room of finance was deferred a couple of times he recognizes that can happen that's in the record there also are also screened by the uniform donor history questionnaire to determine that they are free of any diseases or other conditions that would impair the safety integrity of the plasma so for example there are lots of things lots of reasons hundreds of them actually why people  temporarily until their condition passes for example pregnant women are not allowed to donate blood or plasma for a period of months after the pregnancy people who have had surgery recently are not allowed to donate plasma people who have traveled to certain parts of the world maybe temporarily are not allowed to do on the plasma so the point is once medical condition changes over a period of time in the mere fact that he donated successfully seventy or ninety times in the past isn't any evidence really that he would be qualified or eligible to donate in the future his condition could have changed and that's precisely what the presence of the animal signal to the staff you now need a dog in order to donate anything they say to him if you go and get a doctor's note that you can safely donate where was safely done with or without without without without because we would all do they said it was the doctor says he can safely donate with a do l probably would not accept that because that opinion that would be coming from a non expert in the field in the same way that he surgeon would not accept the opinion of a general practitioner who says my patient is is fine for surgery today the surgeon would make his own decision on that c s l with make its own decision i think what would have happened given the fact that mr science and donated so many times that he had walked into the center for the st time that day i suspect it would have happened no he ten not going without the dog his p t s d now so what happens if a sight impaired individual comes in with a service dog they don't really explore do they whether this person has any anxiety in addition to his sight impaired to hurt you know that same person fills out the uniform going to history questionnaire each time he comes in as well and has to report medical condition so it's just a question of the person his si trained scene i'd august we used to call them that that's fine because that person is going there's no reason to believe that person will not be able to mean can keep maintain control of the animal throw if you so if for example i once worked with somebody who trained service dogs and she would take that service of the various dogs she had with with her everywhere and if she showed up to give plasma with her service dog and she's also in the process process of training if they just automatically wouldn't let her get plasma for she doesn't need the dawn for anything she's just training the gun correct well you know i think there's a part of the regulation that talks about having the dog with you for purposes of training but this is not this is and you know this is not the purpose of the center to have people come there to train their hamill's you know if she doesn't really need the dog for any purpose why would she need to bring it into the donor floor well because she's training it wherever she goes i mean right they really have to be as i understood it at the time the dog had to be with her nearly all of the day well if she needed the dog although she said she's training the dog  she doesn't really need the dog for any particular medical purpose he says she's training the dog in so the question then i would pose is why would we put fifty or sixty other people plus the staff at risk of somebody can bring their dog into a plasma collection what's the  risk you might lose control of the dog might get loose it's not the center's responsibility to police to your i q what i'm really hearing you say if we have the general policy and except for people with sight or hearing impairment we're not going to budge i would say this your honor it's not simply a matter of having a policy the policy is based on the medical stamps determination but the presence of a dog because the donor and such a severe case of anxiety but i just can't you know example of somebody who's really a dog who doesn't happenings on haiti i just gave you an example of a person who's training a service dog is what's a good plasma has done in the past does not having and you're saying in that situation the person would be turned away i don't know that we've ever handed situation but they had situation perhaps she would be able to have the dog present because she's she isn't having the condition and she's not at risk of losing control of the animal i under your policy which never applied before but on your policy to be eliminated from donation leave policies your honor are not that's why i wonder whether or not that isn't a material fact  mr nader house is saying should have been submitted to the jury well if that's a material fact i suppose they could have argued that material fact and created a material fact in the record they certainly did not but the point is these policies are not invented for the purpose of medical staff determined that the if you have to work two or more medications that's a big risk if your have the service dog that isn't it's a proxy it's an indicator that you or your condition has deteriorated or your condition is such that there's such a risk that it puts the rest of the folks on the donor floor but rather that want to get it again maybe that could be the case it could you could be right in some cases but not all cases and when you have a track record of somebody having come a come in previously for ninety times and without being turned away for being overly anxious and now comes in with something that's even more calming than those previous ninety times nonetheless you're going to apply this general ready policy that in some cases is a safety risk therefore we're going to presume that this is a safety risk and it just intuitive let me give you another example it's even more counterintuitive and i'll respond directly to your point st of all there's really no evidence of the record other than mr ayers his own testimony that the dog it has a calming effect on him what we're talking about here now is the difference between screening in the individual assessment of the health of the donor there are two things at play the individual health assessment as required by federal regulations to make sure the donor is healthy enough to donate screening is required by the f d a to make sure that the product received is safe enough here's the probably perhaps a very counter intuitive thing anyone who has lived in great britain for more than six months during the last thirty five years can have done a lot of plasma in the united states because of the possibility that they've been exposed to quite still jacob disease otherwise known as mad cow disease it makes no difference whatsoever whether or not they in fact that's the difference between screening there are layers of safety imposed by the f d a and the industry gets together and does this in conjunction with the f d a as agency holds sieber the center for biological dance the difference between what goes on under title one for example in the employment context where we look at the end of we have to have this individual assessment interaction with the with the employee in here we're dealing with an industry that's highly regulated in school you know where you're saying if you take it if it if your theory is that it makes no difference if this person who previously a plasma ninety times is even less anxious brought him some type of medical documentation from his physicians saying something like the dog is helpful the dog keeps him call he should be able my opinion he should be able to maintain control of the dog at all times be if the concern here is that holding that a plasma collection center is not a place of public accommodation that they'll be incentivized to discriminate frivolously against those who are disabled i think that's not a real concern if you look closely at the incentives in order to understand those incentives you need to understand something a little bit about how plasma collections owners work the st thing is that in order to collect plasma for manufacturing you need a lot of donations but you've got some strong policies here and those policies don't provide for exceptions except in the case of those who are hearing or sight impaired but i think i think your point is more basic when he comes in he's not giving his money to them they're giving money to him for having donated plasma why is that's or is that a crucial difference the way the money flows absolutely that's a critical difference if one looks at the other illustrative examples of these services stablished meant you see things like a grocery store a gas station a pharmacy and all of these there  care with you put some money in and what i committed thereafter you can you give me some of my money back with interest that's right that's it that's a that's a good the money is of having their plasma extracted for them there's no health reason or other reason why an individual is getting money well that's right and i think if you go through that definition which the district court dead i think the problem with that definition is that it's overly broad and then it begins to it isn't the martin case that a host of other cases say that the idea is to just to be interpreted broadly well it certainly should be interpreted probably should not be interpreted without limits and certainly should be construed  enjoyed by a member of the public specifically the customer is that you begin to encompass and titties that are clearly everyone agreed are not places of public accommodation what if we view donors as police or contractors well certainly if you took that perspective sell goods for money right is that what happens here no i will personally again i would go to the characterization and point of the call distinction that you're not the individual are not telling me they're being paid for their time and inconvenience regulated by the food and drug administration and international regulators and a whole set of industry standards it doesn't do appear i was that is what i would think that would help me and distinguish that the reason that pervasive thank you your hours on that last point hospitals doctor's offices many other public accommodations are highly regulated areas so that issue does not bear on whether the i like to address a couple of points that were made the presentations this ingestion that if they if the if when just was told come back with a note from your doctor to say that you're safe to donate without the dog if that had led him to bring back our note from the doctor to say  the dog is helpful and that may have changed the c s l's analysis that's just beside the point here the fact is their policy says no service did disorders and there was not an individual assessment of him when he came in with the dog in fact his testimony was one of the medical staff when someone who had seen him seventy or ninety times or good portion of those when they saw him with the dog they said you can't have that in here and then eventually he was led back there was some conversation they found out the reason that she said about apparently is because there's a policy you can't have a  anxiety in the facility there was no individual assessment on the public accommodation issue but on the on the service establishment issue the service i argue that is being provided is the extraction of the plasma to say that this is akin to a other manufacturing facilities where source provider comes in and sells the source material to the manufacturer in exchange for money is is not the same heat in those cases if it's a oil company they have the specialized equipment to take the oil out of the ground and sell it to the refinery if it's a timber does not have the ability to extract his own plasma and then exchange that for compensation the service that's being provided to him is the specialized equipment and personnel the facility and the compliance with regulations presumably that allows him to go there and have his plasma safely extracted for which he can then obtain compensation this this case to to distinguish the plasma facility from all of the you know married examples takes i would suggest some mental gymnastics this is not far from a professional o pay for or take your trash that's a service that's being provided the consumer is not paying anything for that service and yet the recycling facility is a place of public accommodation some other examples that cross my mind are a facility that does clinical testing they put out an ad for people to participate in the sleep study in exchange for pa meds to suggest i don't have a case to cite i would suggest it would be impossible to allow that facility to discriminate on the basis of disability under the auspices that it's not a surety one final point that i would make is that if congress had intended that a service establishment be only a facility where the public exchanges payments or service that would be in the law it's not