security gauged in discrimination against mr clarke a poet and plaintiff below in this discrimination was based on his diabetes which is a protected disability mr clark launch to complain about this discrimination in retaliation champion security terminated mr clark this is a rare case where we actually have direct evidence of discrimination mr clark was pat was terminated because he passed out one time as a result of hyperglycemia a symptom as of his diabetes thus we have a forbidden factor issue here and in fact the hyperglycemia was objective leak determined by a hospital on the day that mr clarke was terminated yet despite the subjective finding the up to levy the employer claims that mr clarke was terminated because he was found not awake at his desk ye the sleep apnea cases where there are you know they can't do the job because they're they have to be alert at work but is this just a extraordinary event of his if his with the diabetes or is this something that plays into his qualification issue because you know a number of these sleeping on a sleeping at work cases get into the whether or not you can do the job yes ma'am it is absolutely distinguishable from the case that counsel cited in his supplemental case which is another court case that my firm here in that case the fist circuit found that there was no there that was a ground flight instructor for southwest airlines who had a history of i believe eight or nine months where he was suffering from narcolepsy and was given leave to handle certain things and same thing with the other clark case so it absolutely is a sting which will mr clark in this case suffered one episode in they they claim to but one episode where he was found unconscious at his desk unconsciousness well i think that goes back to the fact that this is a one time thing there were a commendation is made and as the district court pointed out that included a refrigerator in his office that allowed him to keep his insulin and then they allowed him to go to his doctor's appointments but this is a one time thing i mean it would be the equivalent of if someone has a heart attack or a stroke at the office and there is no objective determination to see if this was something that is like  we have to deal with it on a continuing basis or one time episode where the diabetes unfortunately gets out of control what if for example the diabetes medicine was ineffective and he was properly controlling his diabetes and it just didn't work that way so it's this is not an accommodation for him to be able to sleep at work if he's having an episode it city needs other types of combinations getting a juice or something at regular time checking his blood sugar etc i don't think accommodation is the the biggest deal when it comes to accommodation for his diabetes now there was no one in gage meant though in the interactive process once he went to the hospital because he couldn't in fact engage in the year active process he was passed out at that time so you're saying that they could not him at that point because medical situation correct at that point judge all right they had the employer had a duty to ask for more and information they'd there's even evidence that if i can find it here the man who terminated him responded to the executive vice president of the company and said after my car after my call charles stated to me he did not remember getting up this morning are coming to work and woke up sprawled out in his chair with the door close charles stated nobody bothered to check on him he might have been having a diabetic emergency what about the september two thousand yes yes the underlying file for the or the file for the underlying disability discrimination was destroyed by the company so is there so is there evidence in the record maybe through testimony or otherwise the manager got a photo of him sleeping at his desk yes yes there is so he slept at his desk allegedly in september and then again in december but that december was a serious medical event well i don't i don't think that he was sleeping at his desk we do not say that he was sleeping at his desk in september you know what you think there's a fact he gets to absolutely that's what this case yes in this case comes down to that fact issue if he has slept in september do you lose this case you know ok he could have two diabetic incidents or something and what's what's that and still be in still be qualified to perform the essential job functions of a personnel manager for a security company absolutely he could absolutely be able to do that and that's what the question comes down to is who could he perform the essential job functions what about the august  to the ability to perform the essential job functions you claim that you claim that there's direct evidence not circumstantial but direct evidence of disability what is the direct evidence smoking gun yes so on the day clark was filed once he was awoken awake and he headed directly to the hospital yet no one from champion made any attempt to verify whether he was unconscious as a result of a health condition or whether he was merely asleep at his desk i think what i cited earlier and i will go back to that where mr bennett's his supervisor states that  he might have been having a diabetic emergency but to be to what do you have linking that presumption to the decision to terminate i guess it would be going back in time to the fact that  after after he made the discreet well i guess we're getting into discrimination versus retaliation but i would say that it we have to take a look back further at where this all began in him making the allegations of discrimination but i would point out a point that the court the fact that he was having a diabetic episode one thing i'd really like to point out to the court is the footnote in the district court's opinion  in two thousand and seven president bush signed into law the merrick's and with disabilities amendments act which set forth the conditions and this is going to be talking about circumstantial evidence but i think it is imperative conditions to protect in the act the act the amended act mandated that the determination of whether an impairment substantially limits a life activity be made without regard to the ameliorative effect of the mitigation mitigating measures thus mr clarke's impairment is measured without regard to the militar ameliorating effects of insulin yet when discussing whether mr clarke is a qualified individual in the burden shipping analysis judge the district court judge added a footnote i quote the court is of the opinion that plaintiff failed to present evidence showing he is qualified because the evidence indicates that it was his own neglect in failing to monitor his diabetic condition which resulted in his unconscious state the district court basically just said i see no direct evidence and then focused its attention on the circumstantial evidence of the terms of the discrimination and excepted the fact that of course diabetes is a disability but then immediately turned to whether mr clarke was a qualified individual and i believe overlooked the two thousand and seven amendments because whether mr clarke was complying i guess with the standard of care for managing diabetes or not is not a decision that the district court should have made assuming argue window that he was in fact qualified he still could be terminated for repeatedly falling asleep could i think again this now comes back to the fact issue of we think the words are important here falling asleep versus being unconscious and that while being unconscious once and maybe falling asleep twice now i would say he was unconscious every single time  even in august so every single time he's off to the times he said conscious yes and i but i would say that although i think august is more than one time that you think he's come that i mean that's it some point though does he have a responsibility to not not not related to his qualification for the job but does he have to be monitoring a little some of it i mean is that on him in any point does he ever have to night manage to make sure that he's not getting into that state i would say that under the two thousand and seven eleventh's that's not they can see never has a responsibility to make sure that he's monitoring his blood sugar and appropriately and taking the medicine that's never on him i think that would come down to a fact issue of whether he was able to perform the functions of his job well is he able to perform the functions of his yes if he is sleeping when he supposed to be monitoring for security i am not trying to be harsh with your client at these are legitimate employment law questions i am is he a how is he able to perform and if he's supposed to be alert and he's and he's either in a diabetic coma or sleeping so he's not a security guard for champion security he's a personnel manager  his alert is it is part of the job right obviously someone has to be alert while at work but an episode here or there as a result of diabetes when viewed in light of the job functions of a personnel manager versus the job functions of an actual security guard or cannot monitoring some kind of situation that somebody could be attacked or lewd or have be a prob for something correct he is not a personal manager not security guard so i say and i think that when we look at the factors of the southwest case in the other clark case with this which this court looked at that we can see in in those cases there was all kinds of accommodations made for people with  were there were not accommodations discussed or sought at that time because he was terminated and when he had the diabetic back in august or in september i don't think that it arose to a point where he was determined incapable of performing his essential job functions so when he didn't he know in august that they were talking about him snoring in the office did he not know that i would have to go back and check the that did he know in september when there's allegedly a photo of him going around sleep showing him sleeping did he know that and i have to check ok so if he did know wouldn't that make put it on him to say oh my goodness i need to seek some sort of work with them to so i can get my blood sugar checked at a regular basis and maybe i need to be excused for longer lunch hours or would that be on him at that point to ask for a comment it's always the employee's duty to ask right if it if it so in fact rises to the level where it impairs their ability to perform please good afternoon your honour's courtney wilson on behalf of the appellee champion international security your honour's i want to start really upon started this is a claim of discrimination they have  on chosing to based on direct evidence there is no direct evidence whatsoever in this record they haven't cited any in their briefs they didn't point to any in their argument they have not pursued a circumstantial evidence case their opening brief says this is not a mcdonnell douglas case this is a direct evidence case direct evidence to your question judge will it is a statement something like clark's added again his diabetes is acting up he's asking for an accommodation let's get rid of him that's direct evidence there isn't anything remotely like that in fact in response to your question counsel couldn't even point to a statement or a document or an utterance of any time that had to do with why they terminated so if they were willfully blind to the fact that he was out because of th diabetic coma that that would be circumstantial and not a direct evidence case i'm not even sure that would fit circumstantial but certainly not direct evidence that you know they didn't follow he gave them the documents that said he was at the hospital and let clear that up there is nothing in this record that says that mr clark was ever unconscious there is nothing in his record that says that mr clark was unconscious because he had diabetes and there is nothing in his record that says that my client knew he was unconscious because he had died and all three of those things must be true to sustain a prime of his case there is evidence of one of them mr clark his story is that he had amnesia up until the time that he awoke from his chair he doesn't remember getting up in the morning he doesn't remember driving to work he doesn't remember how he ceased to be awake is that consistent though with the diabetic episode we don't know because there is no evidence in the record about his health condition at the time that he was not awake he didn't proper it he didn't offer a medical expert a hospital record  what it what kind of record did he have when he went to the hospital he went to he's told people at work he was going to the emergency room that really is the extent of what my client knows about this it was going for possibly his diabetes that's the extent that there were record reflects my client knowing anything about cancer you know we see a lot of employment law cases where we're pretty experienced in this area of the law not probably not as experienced as you in opposing counsel but we see a lot of these cases and normally if somebody is going to the hospital the employer wants to see documentation or something after the fact or for something and it seems like here they didn't wait at all but they did not they terminate him they called him on a cellular phone and told him that he had been terminated and that was based on the as you point out the prior incidents added to this one which another employee had reported and then his supervisor went down the hall to his office saw that he was not awake i testified he didn't appear to be in distress and then the next thing he knew mr clarke w walking around talking with the there's no medical evidence that it wasn't caused by his diabetes or that it was so the record is a zero and they haven't seen the case but unless we check our common sense at the  your honor he has a hostile work environment claim which is premised upon some resistance to his claim to be allowed to leave his shirt tail out and not just say th accommodations were granted they weren't related to his diabetes as far as we knew and this occurred months earlier that's not a hostile work environment the circuits cases are very clear as to what it takes to establish a hostile work environment and it is constant and humiliating you know verbal or physical attacks it is not a disagreement over whether you're going to shave or tuck in your shirt much less a disagreement over shaving and tuck in your shirt tail or he was allowed an exception to both of those and again that happened months before he was terminated their retaliating claimed their final claim is premised upon protected activity he was not complaining about a violation of the americans disabilities act he was complaining about how he was treated when he asked if he could not shave the key is because he had examined dry skin and if he did not talk in his shirt tail because his shoulder was recovering from an operation these are disabilities well the eczema could be related to the diabetes couldn't it i thought that's they allege that that he  it is related because you have to have an objective really reasonable belief that you are complaining about a violation of the that's your st prong of the river and assuming an argument on that that isn't objectionabl reasonable belief what say you that that his doctor did not share that belief because we have a doctor's note in the record that says he can't say because he has examined dry skin and doesn't say anything about diabetes so we contend that's not an was found sleeping at work and is council alludes to the fact that he was an office worker not a security guard he conceded that as the personnel manager he was involved in terminating several employees for sleeping on the job he conceded that was important for everybody in this company because it's important for the security guard he conceded that that is a written and established policy of this company that if you sleep example if you're going to hold these guards the same standard you have to set the same example forever do you have anything else counsel to do everything else  just another question that was raised well your honor asked about is this one off loss of consciousness obviously we don't know he worked in the office he could have been not awake on a daily basis as far as we know we don't we don't have evidence but when he was caught or discovered being not awake as ron alluded to this was not the st time this issue that arisen and we were being consistent what it's really asking for is not to avoid but to have this court mandate discrimination he is asking for us to treat him differently than any other employee caught in exactly the same situation he doesn't contend that any other employee if there was some accommodation that we could have made and were obligated to make for him and didn't then that then he would have an argument but what he is asking for is saying you had terminated me for the same reason you would have terminated anybody else but i'm different so you have to act differently that is the opposite of what the americans disabilities act and that brings up the question of what is the accommodation and that you will not suffer some complication of diabetes that renders you either asleep or unconscious when you're supposed to be working when you're in your office he didn't ask us for such an accommodation which he required to do want to be he didn't identify such an accommodation in the lower court he didn't identify such an accommodation in his brief and he hasn't identified one today there is no accommodation at least as far as we can tell that would have allowed him to do this job without the recurring risk that he would either doze off or become unconscious when he was supposed to be at work so he has no failure to accom the accommodation you're asking for is just to overlook what happened is just to treat you differently an employee who doesn't have a disease you're not asking for a genuine accommodation you're not identifying something the police department could have done that would have enabled you to overcome whatever the problem was that would have enabled you to remain alert and conscious and therefore that's not an accommodation this cognizant got in trouble work immediately also went to a medical provider went into rehab for alcoholism and won his job back and he didn't get his job back he sued and this circuit  affirmed i think it may have been judges judgement as a matter of law after a trial or summary judgment same standard for the same reason is all birch was saying is the accommodation i want is my job and my behavior was inappropriate but i have a disability so you have to treat me differently than you would have treated another employee with again that is not with the  i would like to st address the issue that you brought up with opposing counsel about whether the employer was aware that while mr clark was in the hospital he had been suffering from unconsciousness as a result of his diabetes there's a few things in the record st mr bence mr clarke's direct supervisor admits that he had discussed hyperglycemia and the risk of passing out with mr clarke and another employee on multiple occasions or at least on one occasion excuse me that was a misstatement and that he admits that he was aware that if insulin levels reach a certain point unconsciousness can occur now while mr clarke was in the hospital he told mr amaze who was in volved in this hierarchy that he was diagnosed with hyperglycemia so there we do have a fact issue as to whether they knew what that he was unconscious as a result of his hyper geisler glycemia which was caused from his diabetes i think judge what needs to be looked at here is the span of a vents starting in april two thousand and sixteen when mr clarke starts complaining about the discrimination that he cannot lied is and the executive vice president saying that if you will shave we will give you a raise and that is discrimination right there on its face it be the same thing is telling someone in a wheelchair if you will get up and walk i will give you a raise they mr clarke was not able to do chose not to do that chose not to shave and that it he reported that discrimination to mr mccoy who then you  seem to have a question who then instigated investigation and then mr mccoy the executive v p along with mr mays and mr bence basically started coming up with ways to terminate mr  the record i'm sorry that where in the record does it say that they knew that his eczema was related to his diabetes i'm glad you brought that up because your wheelchair if it fails if they just think he has eczema we don't get i mean they could give a dispensation for eczema but that's not related to it wouldn't work  case absolutely and i'm glad you brought that up because that was a point that opposing counsel discussed and said that there was a link there but in fact there was a doctor's note provided that said that he has eczema and cannot shave then m r excuse me then the d employer asked for clarification of that and that is when mr clarke responded and said that the x x is related to my diabetes now whether there needs to be expert testimony or not i think that would be a contingent between the parties but the fact remains that there is now a fact issue as to whether the eczema is related to the diabetes that that's the time period where they assent his having the beer that's not the same time period where they offered him a range is what it was i think either in it's not clear but it was probably in june january and this other one is in april so those are not the same time period he helped me with that because the time where they offered him the reins is not in the same conversation where he has a doctor's note and he's relating it to his diabetes it took time for these events to play out just a bit so they didn't know at the time it's not the same as your wheelchair hypo i think that it is i mean is they didn't know that it was related to the diabetes on that day what they did how and what day was the offer of the ra i do not have a direct citation for that i would have to provide that in a letter to the court as i sit here right now to have the mumps you have just a little bit of time to go ahead whatever else you want to say well and so i would say that they continue to  they there are plenty of e mails in the record where they've been basically plot and plan to terminate mr clark like let's get him out of here let's see what we can do i want to start applying pressure on him to leave that's it's a retaliation case cut and dried as long history as well as direct evidence of the discrimination thank you thank you very much we have your argument in this case is the m