good afternoon my name is susan top men i represent the appellant's andrew craigie susan morrow and michelle baylor i will try to reserve a few minutes for rebuttal this case arises out of the alleged entitled to qualified immunity because mr king had a meaningful pre term anation opportunity to explain the positive lab results both to dr mcgee and to his supervisors the process followed was consistent with well accepted reliable drug testing protocol and with fundamental principles of due process framed in terms of the second prong of the qualified immunity analysis it would not have been clear to a reasonable officer in the appellants position that the pre terminations process actually afforded mr kane was test was positive for both coding and morphine the following day his supervisor or one of his supervisors ms morrow called and told him and i'm relaying the facts as mr king's version of the facts on feb eighteenth morrow called mr king and told him that his morphine level was extremely high she also at that point suspended him and told him that there would be a meeting the following week mr ting understood the purpose of that meeting would be to discuss his drug test result and he asked that dr mcgee attend the meeting as scheduled there was meeting on february twenty second morrow who is the chief nursing officer beeler who was the human resources director and mr king's immediate supervisor all attended that meeting in person in person and dr mcgee attended that meeting telephonically there are e mails in the record that suggest that meeting lasted approximately  an hour and a half during that time period mr king's tylenol number three prescription was a topic of conversation mr king said that he had taken one one tablet on the morning of the drug test and in response to that comment dr mckee said well one tablet would not account for the levels of morphine in your urine sample and according to mr king described the levels as nearly fatal not nearly fatal but something along that line  king talked about various medical conditions he thought that that might contribute to or might account for the positive drug result including fatty liver disease and diabetes he talked about the fact that he was on so he had a fairly good opportunity during that meeting itself to provide some alternative explanations for the positive test result in fact he had come to the meeting with  thing with a list a list of things that he thought might account for the positive result he also met separately with andrew andrew craggy the c e o that day and again that provided some alternative explanations for the positive test result in those meetings and after those meetings mr king was encouraged to provide medical records records documenting his reported diseases and any other information that he thought was relevant and he did so we had about five weeks after that initial meeting on february twenty second to provide information he provided his prescription to d he provided medical records he provided letters from his health care providers he provided a document that he characterized as a rebuttal to the accusations so over this five week period the information is flowing back and forth and i was governing last half a time that your clients would have was the state of the law in your view an employer is obligated to provide a name clearing hearing to an employee i believe the name clearing hearing  preferably provided prior to any publication of the stigmatizing statement the contours of the name clearing hearing are not defined by the law other than your typical  process characterization of the obligation to provide some notice and an opportunity to meet the charges or to respond to the charges against you what was the state of alarm your view with respect to a post termination additional harper today i believe that post terminations opportunity is only required if the predetermination procedure either is inadequate or doesn't happen at all and a lot of the name clearing hearing cases are talking about a hearing being provided as a remedy after the fact because there was no hearing prior to the terminations this whole case basically turned on when the hospital and mr kane received an actual copy of the laboratory report and whether mr king should have been afforded an opportunity to hire an expert to argue with dr mcgee over how to interpret that report pretty much under the mandatory guidelines that govern drug testing the m r o is a gatekeeper that laboratory information the quantitative value of coding and morphine are provided to the m r not to mr king i mean if you say not to the hospital and mr king did not get a copy from the hospital of that information and that's what he did submit split sample of the urine that was taken to his own laboratory and he got that test result which as i understand it corroborated the test results that dr mcgee had received is that correct mr cain requested us but sample be sent to another laboratory that laboratory result confirmed the positive result and the levels of morphine encoding that the first lab had found so your answer is yes well i'm yes with an explanation that the only question is did mr when did mr king get that second laboratory no it was just a simple question as i understand the record a c a split sample was taken so we still had some of his ear and yes he submitted that to his own lab that lab produced a test report which was essentially consistent the numbers weren't identical because they never are but it was very close and essentially corroborated the report that dr mcgee had received that's true ok so maybe i should take this up with mr king's counsel but i'm trying to figure out then beyond his complaint that he didn't receive the test report that dr mcgee had in then is the other complaint that he has as you understand it i didn't have an opportunity to hire my own expert to refute what dr mcgee was saying that's part of it and i don't want to make mr king's argument for him but he is going to say that he never got the report from the second lab although it was his he initiated the sample i thought i thought he called the lady at the lab and she said i can give you the test results that you requested but i can't give you the test results from the first sample that's true and that was one or two days after his termination i wasn't presented his complaint is that this didn't happen print germination right he didn't have that information predetermination therefore he could mount an argument that really goes to the negligence of doctor and just not go to the process that was provided what prompted my questioning was judge graver question about what the state of the law was as to what process was due to mr king at the time and as i said i thought i heard your answer to be we provided him essentially with a pre term a nation hearing which was all the law required in order to meet due process concerns that your position yes it is ok you have about four minutes left i don't know how much you want to say first of all well let me just quickly address the question that the court directed us to in terms of the most recent supreme on the qualified immunity issue i don't think that that case really changes the rule as far as qualified immunity it simply emphasizes that the clearly established inquiry must be made with reference to a specific factual context and that to deny qualified immunity there must be president press event that establishes beyond debate that the conduct at issue was unconstitutional and there is no case of a ninth circuit or the supreme court defining the requisite parameters of a name clearing hearing in the circumstances presented here also try to reserve two minutes and just quickly quickly quickly address the second primary issue in my view and that's whether or not a name clearing hearing was we're quired at all because that only comes into play if there is a substantially false statement and in this case the only statements made by the appellants were true cain's drug test was positive that's what they said in the terminations letter that's what they said in the mandatory report to the nursing commission results in other words know that it was a positive test and that the levels of coding and morphine were not contesting that ok so doesn't this case really turn on his argument that due process required a that he be provided pre term a nation with a copy of the lab report and be given an opportunity to hire an expert who could then quarrel with dr mcgee over how you interpret these two lab reports what it comes down to is that he had the right to a name clearing hearing that was not provided enduring the name clearly let let's assume for the sake of my hypothetical that his name clearing hearing was the post terminations events that opposing counsel outlined the five weeks the meetings the written material that he submitted that pre term a nation that was to be terminated so let's assume that the name clearing hearing occurred during that phase of the case what additional proof or process do you contend that mr king was entitle in order to clear his name the decision to find that it was a positive finding was a directly was directly dependent on the levels of coding and morphine he was never provided that if provided that yes he could provide the evidence to show that it was not abusive quantities that it was consistent with his prescription and that was shown in each of the events that took place after his terminations well i have a number of questions but i want to start with this one is your position this is just clarifying it's not meant to be anything other than that is it your position that even if the pre term a nation hearing had been sufficient in your view he would have been entitled to another hearing post germination or is your argument instead of  g could be enough and so my question to you is this in the context of qualified immunity what case or cases suggestive that the  that that specifically have to be given the kind of information that you are saying was missing that is the actual lab results why couldn't a reasonable person in the shoes of the defendants have felt or thought that what they received which is the intermediaries report is the same thing that your client received and that was enough few things first of all when we're talking about what is reasonable of these particular defendants we have to recall that in this case they had no training or knowledge of what a name clearing hearing was what due process was or allowed or military was each one of the m that said in relation to this particular case they had not made the determination to terminate when they made when they had that discussion in february there was not even a positive test result the actual verification was negative at that time not into a letter until a letter by dr mcgee at the end of march march twenty eighth that the each of you and based on that letter the following day made the determination that he should be terminated and that letter was specifically dependent on the levels of the test which he never had so the question of what he's actually present the court with the same facts if you will that a individual with a lab test has the right to those it really comes down to what is the hallmark of due process and that's fundamental fairness if you're going to make your decision to pendent on the levels then the individual should have the opportunity  rebut those levels which he never did the council the supreme court reminded us in the case that we sent out to you in the order that qualified immunity protects all but the plainly incompetent and in this case and  process generally requires notice and an opportunity to be heard so even if these three rural county hospital defendants had not been trained in the intricacies of name clearing hearings why doesn't the process that was afforded him in that five week period meet fundamental fairness of notice and an opportunity to be heard because the notice an opportunity to be heard and timely and appropriate manner is dependent on having notice an opportunity for the base of the terminations to hear counsel that's my problem with your argument and maybe you can correct me if i'm misunderstanding i'd like to know that because i thought that the records show that the decision was made based on the intermediaries report to the hospital and that the hospital did not make its decision on the basis of the actual and miracle lab results record to the hospital make its decision based on dr meese report or did it make its decision based on the numerical lab results on which dr mckee had relied which was the numerical lab results that his decision was based on to find a positive reading list where his was what to the hospital have in hand at the time of the terminations decision do they have the actual numerical results yes they do and i'll point the court to that and morals depor ation which is one fifty five of the record she states after receiving dr mckee's letter i spoke with misty herrera miss beeler mr craig we decided to terminate mr king's employment based on his positive drug test result now and that's dr may his report right in so if we look at the letter which is also included in that source on one sixty six of the record your honor it says that he for prescription of tylenol three from is dennis ordinarily this would have sufficed to overturn his positive finding while the prescription for final three should have explained the positive finding his urine levels were extremely high then he points out exactly what those levels are coding equals thirty thousand one hundred forty four  not should now be considered positive because of negative before she now be positive because no reasonable medical explanation for these levels was able to be established when when did your client first receive a copy of this letter through discovery he received the levels after terminations and after receiving those at the hospital counsel just said that the hospital didn't receive the test results until after his term ration are you saying that's not true because as i read the course in the record that you just quoted she's essentially relying on dr mcgee's letter for those statements the letter has the results the levels of the test and incorporate and that's what i read with relation to the coding equals these levels that's the march twenty eighth march twenty fourth letter they received on march twenty eighth mr morell to clear it in testif they reviewed that letter these three defendants in determine that they're going to terminate mr king the following day they terminate him right so they're relying on dr mcgee's letter they're relying on his letter with the positive findings that are only positive because of the levels of morphine and coating that they never provide to mr can with testimony believe is moral but maybe i've got my defendants confused the actual numbers themselves wouldn't mean anything to them they have to rely the medical review officer to tell them what the significance of those tests numbers are when now we're going into a question of reliance on the right to rely however this is a did the issue is does mr king have the right to a name thing hearing and what is fundamentally fair this is based on a letter that has the results and says i would give him a negative result if not for these levels they never gave mr king the levels to the fundamental fairness say wait a second look at this here's a reason why those levels are in your physician that if mr king had had those levels he would have supplied something else to the hospital because i guess my question is how would he know what the significance of level this goes back to your question your honor and absolutely he would have he would get an expert just like he didn't have enough he would have to get an expert he wouldn't be able to tell from the numbers so that gets us back to what did the hospital rely on and as i read the record they relied on the opinion of the independent medical review officer dr mcgee to interpret the results of the lab tests and the question is would a reasonable hospital official know that he or she had to do more than that before making the decision in reliance on the m r i opinion and considering all of mr king's explanation for why those numbers or so to terminate the the allegation you're making is based on moral turpitude or rather dishonesty mortality issues two that is contested and then we get into the publication issue but  your argument that a reasonable hospital official would have ordered an adversarial hearing before whom i don't know maybe the board at which we'd have a battle of the experts dr mcgee versus dr or mr king's expert and then that adjudicator would decide whose opinion is correct almost like a trial what would a reasonable hospital official know to do in this circumstance in order to be entitled to qualified immunity no i would not expect and have a serial proceed in the way that there's got to be a third party adjudicator to make the determination however they do have to provide the opportunity for the individual to respond to the allegations as the basis for germination and in this regard the only way to do that is recognized by the court was to provide those levels and then just as he did in the end with  defendant in a lawsuit but the question i have for you is is your position that you're entitled to a post terminations hearing after each of the three reports first after the letter was prepared and put in its personnel file second after the complaint was filed with the nursing regulators third for the testimony in front of the employment security hearing zammit or and i guess for us when they challenge the  decision i mean at what point do we say you've had all the process that the law requires position is that he should have the option of the first place and he never did could it be post formation there is that possibility each one of those things provided another publication and to judge the question relating to what cases out there we have coffers risk delhi which dictates the outcome in this case which is exactly on point in the relation to what  that there was an allegation of misconduct that it was in the personnel file therefore published in the contested it and that core also looked at qualified immunity and basically said this has been no and since one thousand nine hundred eighty eight only three months before the case he should have the right to one and that should have occurred and the information provided was reasonably appropriate notice an opportunity and that name clearing hearing would consist of summoning engaging and summoning an expert who would provide clearing hearing has to include my ability to engage and call an expert to refute dr expert opinion nathan has to give you the opportunity to do so it doesn't have to include that but it has to give you the we shift around from having a positive report to a negative report and back to a positive now i think it i take it that yes the level is somehow explainable by the medicine that this man is taking then negative means something different than the total absence of follow drugs or i think that's that's that's correct it means that it's negative based on the policies and procedures and what m r i s look like because we understand that prescribe medicine should be allowed the only thing from in the context of this case that makes any test positive is the level absolutely spot on absent the level and given the explanation even though there's drug present it's labeled negative am i right correct all right thank you cows for your time has expired i miss chapman has  and i have a question that's bothering me about your side of the case and that is the following the letter of march twenty fourth does contain the specifics about the level the decision to terminate was made the following day and there was no opportunity to respond specifically to the letter which became the purpose and in louder mail it does say that the employee is entitled to an explanation of the employer's evidence so why isn't there a problem that he wasn't given an opportunity to look at the more specific work to respond to the more specific evidence before the terminations was made based on just the plain words  i think what this really goes to mr king's claim of negligence against dr mcgee what he's saying is that in light of those levels dr mcgee should have issued a negative result dr mcgee didn't the hospital did not to undertake its own analysis of the quantitative levels it relied on doctor expertise yes but it relied on the also on the numbers and had he have those numbers he might have said something different if you had another meeting or another reporting today before the terminations the hospital had those numbers and fired employees and the employee didn't but they weren't factored into the to the employer's decision that you just told me relied on that letter did you feel i am a letter did you not a letter we relied on the card ok and that dr mcgee really relied on half a letter yes we relied on the conclusion and if i may this is unfortunate that the letter even got to us it was sent from dr mcgee to q c l the money shouldn't have  numbers to us we shouldn't have had that information the mandatory guidelines say the lab results the m r o is the gatekeeper that information is not to be forwarded to the employer we get it by accident or not of our own vote polish and and again rely simply on what we're supposed to rely on which is the m r o analysis of the situation i think that you have to look at the process that was provided under matthews and and the fact is that when an employee is terminated because of a positive drug test the risk of an erroneous deprivation primarily on the reliability of the drug testing process that includes the m r o if that process went wrong here because dr mcgee reached the wrong conclusion that doesn't invalidate the process itself it doesn't mean the process was constitutionally infirm thank you counsel your time  the case just argued is submitted and once again i express our appreciation for very helpful arguments from both coun