here on appeal from the district courts granting summary judgment against mr o'brien where this record failed to follow the summary judgment standard under rule fifty six in the case law that's interpreted that specifically it did not view the facts of the evidence  light most favorable to mr o'brien did not draw all of the reasonable inferences in his favor credited testimony of the employer's witnesses over mr o'brien's testimony and those of his witnesses ignored legal standards and  effect for issue preclusion purposes and the facts that were found by the appeals officer in all right will to the case how would that that i mean the appeals officer they terminated his disability right and so he went and he appealed that and now he got back the disability and in the meantime but there's a standard of what is that it's got to be gross or so there is a standard under six one six point two thirty two i'm speaking hypothetically here i'm not speaking for anyone just speaking type of let's say i think there's a triable issue of whether he could have been driving at that particular time how did that hearing decide that issue well because the issue was that they fired him because of this alcohol testing that came in below zero point zero eight hundred nevada law so the question was then  if he's under the limit is he deemed to be intoxicated or impaired and factually the appeals officer said that he wasn't and it also didn't didn't matter stop what it  time how do i figure that one out also the appeals officer said that he was not scheduled to do any safety sensitive task that day he was on light duty so he was not doing his truck driving duties he had been put into a light duty position in a completely different role all he was doing was making phone calls answering phone calls reviewing paperwork stapling paperwork together and that was dogging it not completely he was out cleaning up and doing other physically stressful work according to the brief that is in dispute mr o'brien testified that all he was doing all he had ever done was in the light duty role was to do the stapling to call customers on the phone and basically work in the office and at one point he asked that he be able to stand up rather than sit down other than that all he was driving was a desk now he so that is that is a factual dispute george wallace he disclaims the fact that he was out doing any of those types of duties in a warehouse environment he was only working in the office so to the extent of there he he just  even the box truck now that was at a completely different time that was prior to the point where he was describing the narcotic medication and he did drive the box truck one time to the henderson store approximately thirty minutes each way and it hurt it hurt his back so much he actually spoke to miss sound of all his h r person so i can't do this is killing my back and then the doctor eventually said he can only set as tolerate and so from that point on he did not do any driving he drove that in that box truck one time it was before he was prescribed medications that made him medically unqualified to drive and it was done before the doctor said he can only sit as long use only talking about doing the clerical types of tasks that only paid on eleven dollars per hour his normal rate of pay was fifty eight thousand dollars a year so they're paying him less than half of what his ordinary rate would be and under the this so lots of white is if it's a disputed issue about whether he could try at that time whether he was ready to drive all right let's just assume that there is i'm trying to figure this out in terms of what this would look like as a trial it would seem to me if the whole case depends on whether he was suitable to drive at that time let's say a jury found that he was if he was then he clearly falls under the d the test is clearly admissible and he's ok over if you listen then there would be an argument at that point that they couldn't have given him the test because the test only applies to people that are ready to drive right and then would there be then you would try to have that suppress and then it would go to pretax so if you have this one how do you retry this case if one disputed let's say there's if everything hinges on whether he could drive at that time well and how do you retry that case it doesn't so it seems to me that either of you once that issue is said the same thing i'm sande that's why you would lose on that it would seem that once that issue is resolved then one or the other of you loses but how do you try that case you know what are you what are we to know and i think that's where the issue preclu because it seems to me after that the jury doesn't need to decide anything one or the other idea loses but you're both bringing up stuff on that issue well if we were failed there would be an issue as to romney's damages and so forth that's the point but in terms of the other difference there would have to be considered i mean they're saying that he was able to drive we're saying that he's not there when you look at the light duty job offer the time sheets that only show that he was doing a customer service work the fact that there are no thing but you both want to win but isn't that that would not be resolving that factual dispute well that's as factual dispute that used to be resolved at the trial then you don't get summary judgment on that well i know i understand your point i think that summary judgment on liability would have been appropriate under that but i can understand where you're saying there is there are these factual disputes and that's why i'm not entirely lost my mind you kno that you win outright on the preclusion or human on liability for n r a six one three point three three three that has been our position still is our position that all of the facts that are necessary to find liability in that statute were decided and found by the appeals officer in the administrative proceeding that is that the one of drinking off that you can't punish someone for drinking off that's the statute that says that you cannot be  discriminated against or are terminated for doing using a legal product in the state of nevada let me play the devil's advocate there that one there i think that the facts are undisputed that he gets fired after he takes this test and that it's it's not because he drank it's because he drank and then showed up under the influence network they fire him after they find out that he's under the influence so i don't see you know to me on that statute i don't see how he has a cause of action there for two reasons your honor first of all the should not have tested him under the under the regulations a driver shall only be tested for alcohol while they are performing safety sensitive functions appeals officer said he was not finding or read a finding that he was not performing those functions and if you can go through the the regulations that defined that he wasn't doing any safety sensitive on call for safety sensitive he most honest right but he wasn't he was doing good been relieved of those duties and that's one thing in the regulations if you've been relieved of those duties would you have been because he put in the been put in place is still have a policy and the handbook that people at work and it could be doing the other things not just drivers cannot be above a certain level and that doesn't necessarily say you're being punished because you drink at home what you're being punished for is you drank at home too close to when you came to work and you can't you know and there's i mean certainly a reason that as far as i can tell let's say you're doing profanity and and it affects their filters so they say things to other employees that they wouldn't normally say for example say they might not usually say hey you look really fat and that outfit but then because they've been drinking they said you know they say well you look really fat in that outfit and then it subjects the employer to hostile work environment and when you look at the the legislative history behind the statute it is exactly and i hear that you had wine with dinner last night that i could then fire you because i'm part of the temperance league and i don't really want you drinking at all that's what but when people are talking about i don't want you having a blood alcohol level when you're a work because that creates other problems at work that doesn't necessarily punish someone for activity but there's no evidence that he had any poor performance problems there is no thanks before we start the clock will you be using all the time i will be using all the time ok thank you thank you your honors may it please the court my name is david castleberry and i represent r c ruling in this case now this is a simple case and it was decided on six i'm going to just go rockapella with me on that one but let's let's let's go through it your honor well first of all there are three undisputed facts that show that it was proper for mr o'brian to be terminated the also three undisputed facts that serve as a bulwark against o'brien's attempt to create some type of factual issue in this case so maybe i'll turn to the three facts the undisputed facts that are bul against the fact issue of whether he was able to drive or not well but ok but there send the record that you know that he's under doctor's care you know that you know that he has prescriptions for medication there seems to be some evidence in the record which you may or may not dispute that he says he was he drank at night so he could sleep but that he was taking pills during the day i'm thinking to myself ok so you know a guy's got an injury you know that he's got medicaid he's got prescriptions even though you say well we thought he wasn't taken on if you put that guy behind the wheel and he had an accident you think you'd be waiting on summary judgment for putting that driver behind the wheel and we absolutely would not want to do that the the issue is a is is cleaner though because it's under the d o t testing regulations the question is whether he was in the pool of available drivers now it's undisputed he has a c d o commercials on light duty he is in the pool of available drivers and he must be tested if his name comes up on a random for drug or alcohol he must be tested now why is he in the pool of available drivers we have undisputed facts that say why and his driving was never restricted he had limited you paint him as a driver then when he's on light duty while he's on light duty whether we wear whether we're paying him or not is immaterial because he is in the pool of available drivers so say for example to take this prescription issue and in fact this this may have happened they say stephen o'bryan come dr we need to be a third we need to have you help with with a delivery he says well i can't because i'm taking medication right now i'm taking it right now they say fine we're not going to put you in but that doesn't take him out of the pool of available drivers he could drive the next day he could drive earlier in the day if he wasn't taking in the neighborhood let me let me say because one of the things ok when you give your explanation for that he can rebut it by pretext right did he get tested there's some randomness to the tasking he was at that at the time at the time that he was told he would be tested he hadn't been injured yet right the test was chosen before he was after he told a supervisor had gotten hammered the night before well a third party draws for the test all right but all right but it happened and it happened right after he told the supervisor that he got hammered the night before the supervisor wouldn't know because the supervisor doesn't find i'm asking you temporarily did it happen right after he told the supervisor that no he was he was chosen on august second for the random alcohol test all right but when is ok if you don't know what date fed it's going to happen then we have no idea has to be within the quarter past the hour sometime within the next three months when the drivers are available he was injured on august fifteenth he wasn't tested in till september twenty seventh ok is that the same day that before he was notified it was going to be tested he told the supervisor that he'd been drinking heavily the night before there was there's nothing in the record to suggest that there's no admissible evidence that was put before the district court and in fact the only why do i know that and why am i just pulling that out of the hat well it was somewhere in the record well there was the argument made that he had told some of his supervisors at some time that he was drinking at night but the supervisor has no that in this deposition if it  supervisor had if there's something in the record that showed the supervisor had some sort of ability to choose who was in the pool and so here you are we going back to while he was in the pool of available drivers his driving was never restricted all of his supervisors considered him available to drive all of them considered him available to drive and he did in fact drive while he was on light duty his light duty offer letter says that he's given certain duties this where he's working is in a warehouse there's so how do i look at it if they all considered he was available to drive he considers he's not available to drive because he's taking medication during the day i believe he also in his deposition testimony sad he wasn't driving to and from work he had his girlfriend bringing him to and from work so he wasn't personally driving right that's in the record too so why is that not a triable issue about whether he was available to drive so the trouble issue isn't whether he was available at one instance to drive it's whether he was in the pool of available drivers and his driving was never restrict how are you in the pool if your supervisors think you are but you think you're not absolutely intil a doctor provides the supervisors with a note that says my driving is restricted you're in the pool of available drivers you're subject to the random d o t testing and you have to be tested for didn't need to as employers he was taking painkillers he said that he was prescribed that's the that's the only evidence in the records that he was being prescribed pain medications and your argument about which i think this question because someone's prescribed medication that doesn't mean they're taking it well that's right and that's what the deity statute says you are only unavailable to drive or out of the pool if you're taking the medication not if you're prescribe the medication is there testimony that he said in his deposition that he was taking the medication in his deposition he would say from time he was asked that from time to time can you drive sometimes he drove sometimes he said i can't drive because i'm taking medication and so his supervisor says fine you're not going to drive that day you could drive the next day and his that supervisors explanations on page thirty three of the record you are and so because of that he was available to drive all  supervisor says that he did in fact drive he was i'm a soon as he walks in the door even though he's on light duty he is available to drive and under the deity regs he's performing safety for society flexion saying if we hypothetically were to say that's a triable issue and that tribal issue were determined by a jury that he was not available to drive what then happens to the task the test comes in and why it comes in is it had this regulation says you're only you can only test people that are available to drive it's a random test it was properly administered well there's what i'm saying if it's a triable issue and a jury determined that he was not available to drive the statute only comes into play when you're available to drive right correct the d o t so if you lost that issue then would how could the test be admissible well mr o'brien himself has said and he argues that that this is it it this is an admitted fact he was terminated through the to the results of a breathalyzer test well that's why he arguably would lose on whether he was terminated for activity in his private time or his disability are causally connected to his terminations the third fact of his motion for personal so partial summary judgment says i was terminated due to the results of a breathalyzer test r c willy's response mid because that was the reason for his terminations he was not terminated because of a disability he was not terminated because of the worker's comp claim he was not terminated because of off duty work he was terminated because of  his on premises impairment and r c willey taking driving out of the equation has a policy and it's a reasonable policy that's admitted on page thirty eight of mr o'brien's brief r really can't have this policy because it is calculated to protect the safety but if you couldn't have tested him if it that because that test he had to be available to drive if you couldn't have tested him what evidence do you have left of his being at a certain level at work well if we're talking about admissibility your honor it's never been argued that the test does not come in if he's not available due to safety sensitive can condition well that would be a trial issue that would be a trial issue that's not a summary judgment issue that's a trial issue that's what i'm trying to say what would this trial look like because i was a trial judge i was a trial lawyer and i'm trying to think if it went back on a tribal issue what would the trial look like the trial would be did he the question was was he terminated because of a disability was he terminated because he filed the worker's comp claim was he terminated because of off duty lawful conduct and the test comes in it's admissible and the question is did r c really anytime think that there was anything unlawful about administering this test that would go to pretext there is nothing in record to even suggest that r c really thought its policies or procedures weren't followed exact yes it had to and in fact expert testimony that was submitted down below said that mr ole bryant's test was proper because he was in the pool of available drivers and there's no question of fact on that because he had no medical restriction on driving he was considered to be in the pool of available drivers and he did in fact drive and under those three undisputed facts it's a bulwark we don't need to get to all of the other issues that have been raised because he was in the pool of available drivers and he blew a point zero six seven it's reasonable to set a limit for all employees at a point and for the d o t regs say that your cognitive your decision making your reaction time are all impaired substantially to affect safety zero point zero four and so the test is admissible under any circumstance and the termination was lawful so when you it it's just it's hard for me to what like i said had pathetically if you had considered him in the of available travers and you hadn't tested and you sent him out to drive and he had an accident i think you would be very hard pressed to not be liable for putting you know and and i could i'm seeing all that exact same evidence coming in what were you thinking that he was in the pull of available try first when you knew that he had prescribed medication well a lot of the o t drivers have prescribed medication and you can receive a certification from a doctor says that you still can drive with these psyches have a certification from a driver that he can drive with that you're just saying the absence of it means that he can and the driver has an obligation under deity statute and the fact that you don't have that would then it would have been perfectly fine that you send someone out under with medication and if it would be perfectly fine under deity regulations because he has an obligation to say i can't drive at this time because of my prescriptions fine we're not to let we're not going to make you drive or you're still in the pool of available drivers and so if we ask you tomorrow you're not taking your prescriptions you could drive under d o t regs he is required to be tested and so we shouldn't say oh we're  to its employees in the absence of any evidence that he was in fact imperative that little for the activities he was in fact engaging in that's that's correct that's the purpose of a policy i can't tell when someone's impaired or not the  point zero four or higher your cognitive abilities your decision making reaction is affected and so you don't need to engage in an individualized inquiry all the players have these players what's the level in your handbag that you point four ok so if they but you only know that he's about the point of four because you gave them the task and as far as r c really knows and the evidence the record it was entirely proper and has some players didn't his supervisor say couldn't tell anything at that retaliatory but i'm having difficulty with claim three on this and the difficulty i have is i don't i'm not i don't quite understand your argument that there's not a disputed fact as to what his job was he says his job was to be temporary to be shifting papers that he didn't go out of the garage and do the work out there he did drive the one boxcar you say no it was much broader than that but why is that not a disputed fact that had to go to the district court as to what his job was under the super circumstance that you have here to the reason is because what his job was does not matter every employee at r c willey cannot of come to work at a point zero four blood alcohol content or higher it's undisputed the policy is reasonable it's undisputed he violated the policy and because of that his terminations is lawful because under enter a six one three you cannot  hold someone's drinking against them unless they come on the premises impaired and if there is a policy that is generally applicable then it should and the purpose of that policy is to protect the safety of the employees are see while they can one have that policy and to enforce that policy by termination so it really doesn't matter whether you do a box whether or not he was available if it was a secretary or anyone else that came on board they would be violating the company policy in that's your argument that's that's correct your honor i understand your argument thank you thank you  don your honors the policy of r c really cannot trump the statute and that's exceptional what's being argued here they're presuming that he's impaired but all of those all of the statutes in nevada the drunk driving statute and also the worker then he knows what the handbook says and there are that he's outta luck if the test doesn't come in then they would that they don't have any evidence of this blood alcohol level and then there will isn't evidence in the record of anything and i agree with i don't know as a practical matter if there seemed to argue that but it all seems to boil down to the kernel was he a fail a bull to drive if he was to fail a bull to drive if that's not a try if he was available to drive d o t can cast him then it comes in and then he's in violation of both his handbook and he you know he flunked the test and all that and and he pretty much acknowledges he flunked the test is why he got fired and it all falls into place but if he wasn't available to drive then the statute seems to say you can't test him and then you go to they did test him and whether testing him if he can argue pretext or anything else at all seems to come back to that colonel and he wasn't available to drive he was medically oh i know you say wasn't available to drive they say he was available on a drive and and you both want us to resolve and you think that you when right here forty nine see a far section three ninety one point forty one twelve so that he's prescribe the narcotic medication and he cannot drive is medically unqualified unless the doctor says yeah under your circumstances you're ok and there was no report like that from doctor he was never asked to provide any reports from doctors either as to whether or not he could drive the closest we have in terms of that it was that he was under the narcotic medication that made him medically unqualified when he's medically unqualified his supervisor should know you're on light duty you're not qualified to drive that's what that says is that you are not you shall not be tested as a driver if you are not scheduled to do these so if you so sort of functions and the appeals officer found on this is issue preclusion conduct appeals officers found he was not doing safety sensitive functions he was not scheduled to do that that day he was not doing it he was working slight duty job well done appeals person find that he did not he was that it was not gross misconduct so he gets his benefit anything over ok i think first we're done thank you both for your argument in this matter i will stand submitted we appreciate it