involves two questions the st is whether or not old dominion university violated the americans with disabilities act when it required mr johnson to undergo a fitness for d d examination the  question before the court today is whether or not old dominion university violated title seven when it retaliated against mr johnson's were engaging in protected activities i will address these two questions in that order unless the court would  prefer for me to address something in particular and i will go through the questions in that order briefly iran as this case as the court is well aware involves mr johnson who is an african american man who was an i t specialist at old dominion university over the course of his employment mr johnson developed a reasonable belief based on information that he was receiving that he was being treated differently than his similarly situated white counterpart  at the university based on that belief he filed a grievance in september of two thousand and thirteen alleging that he was being required to clock in and clock out in a different manner than his white counterpart he filed the grievance through the normal channels at the university and requested documents through the normal channels that he believed would support either prove or disprove his claim but they were necessary in order to resolve his complaint and in particular specifically he was requesting e mails he and his counterpart require to e mail pun arrival and departure those documents were not provided in he began a prolonged effort akin to something that happens often in discovery where he tried a variety of methods in order to obtain those documents he found multiple for your freedom freedom information act request he filed multiple this continued over a series of months until ultimately he filed an equal opportunity claim in front of the e e o c in the spring of two thousand and fourteen at thereafter shortly thereafter at the university sent him a notice that he was being placed on administrative leave with pay and was and was not allowed to return to work until he had completed a fitness for d d examination and importantly that notice specifically stated that the reason he was being referred to for this examination as a full forensic psychological evaluation was because he had filed grievances and to his dish his state court filing where he filed a petition for writ of mandamus asking for documents his grievances that he filed properly through the university is there there anything that would make a the way and manner in which one pursues grievances somehow out of biomes for under the necessarily relates to the a b a clane maybe i'm right maybe that's your position that it does but a guess my question is just because what he was doing was in the parameters of  grievances does that mean that there's no basis to request that exam for that reason alone your author has an excellent question and i think that's one of the difficulties in this case because you have the interplay of title seven and protect from performing essential functions of their job or and their direct threat this court has held in other circuits have also echoed the statement that the the the employer has to have a legitimate nondiscriminatory evidence in the record that there was not a reasonably objective basis for a feel for for the employer to believe that communication between your o one like to hear what's the evidence that there wasn't a reasonable basis to believe that the communication had been unpaid certainly o d u after the fact in justifying the fitness for date examination relied on this communication argument and in a little bit in their original statement to mr johnson and to the forensic examiners mention this communication issue the evidence that they point to specifically relates to a performance review that he received in two thousand and eleven they point back to this problem with one professor mr cowboy he had communications with it issues with there's no dispute about that in the record but that evidence is back on a performance review from twenty million one hundred and twelve thousand and twel his most recent performance review which he received in october of two thousand and thirteen and was signed off by his direct supervisor dr arnall on the dean dean yoakum and miss williams and from h r who are also the three people who were involved later in the fitness for duty examination terminations that performance review in october two thousand and thirteen which is a month after he filed his initial claim rated him satisfactory or contributor lever on all essential element comment that he was communicating handling himself with regard to the effect of communication he he did have a professional development goal of increasing his ability to communicate but he also had a professional development goal of increasing his ability to use oracle software there was nothing else in his personnel file that documented in an inability to communicate and with a fitness for duty examination there needs to be objective evidence of an inability to communicate and i point the court to the i'm published decision and corsi which is also university there were repeated documented instances in that professor style where students and colleagues had observed objective really this person's  supports the statement he was unable to effectively communicate other than an old two year old performance review if that if that performance review had been more recent but that been enough to suggest a fitness for they all say he can communicate and there's nothing else in the record in the example you just posited about a professor have been seeing the rational behavior being abusive that kind of stuff doesn't appear to be any of that in this record so other circuits say minor inefficiencies or just personality difficulties and in those four things are not sufficient to warrant and fitness for d d examination the fitness for an examination  needs to rise to a level where the it in it impairs their ability to perform an essential function and it has to be a based on objective evidence and not being a get along with somebody being annoying because you're falling grievances i there's no that's exactly right your honor i mean when i think about a fitness for an examination i'm thinking about a driver or a pilot who needs to have their eyes checked they can perform their job here they're saying you can't communiqu well what does being able to been allowed to terminate i think if there were clear evidence that somebody was in bad faith utilizing the grievance process and was acting outside a good faith exercise of protected activity then i think you would look to the courts on back opinion i think is boy or live barito and they talk about what is an appropriate form of protected activity and there's a long line of precedent from this court about protecting activities in the form of grievances or even acts of civil disobedience and the court has said repeatedly if the if mr johnson or another litigant has a reasonable belief they don't have to be right the court has said they don't have to be right if they're being discriminated against but they have a reasonable lease that they are being the victim of disparate treatment discrimination a hostile work environment that is sufficient for them to survive a retaliation claim and i believe although the two are not exactly commensurate a t a i in title seven that the same analysis would apply under eighty a with risk with respect to a fitness for beauty examination however that is not what we have here here mr johnson concedes and the witness the state in the documents that they sent to the psychical examiner and to others he never stepped out of the appropriate grievance process the only time he did can have this issue resolved and find a way to get these documents and the record shows that when the documents were ultimately produced he was being treated differently the documents show that his colleague was not being required to clock in took  own the issue of pretext under title seven what what what evidence would you point to to oh for the proposition that the  after this whole series of things that he's filed the the number one exhibit would be the letter that the provost sent to mr johnson where she says we're putting you on a status for duty examination and because you filed the  grievances then they send a letter to dr sat the examiner and they detail paragraph after paragraph about why he's being asked to do this because he's found all these grievances he's engaged in protected activities and then there's those communications yes perhaps gone through the normal disciplinary process but instead they utilize they chose to utilize his fitness for getting examination in those as a way to get rid of him they knew he wouldn't do it he objected to it he found a grievance about it and so these are all examples of why not that that their stated reason oh he just didn't come did the exam was pretextual they were for trying to find a way to get rid of him and they stayed in those call logs with anthem because he was costing them d u did not violate the idea or title seven in this case there are several factual discrepancies that i would like to address st the requested clock in clock in documents were provided to mr johnson it demonstrated that the white counterpart reason why he withdrew that september two thousand and thirteen grievance the day before the hearing now that september two thousand and thirteen is no doubt important because it was related to that these particular grievances were different were because jepp filing withdrawing duplicative grievances and four requests even though he had been given explanations in writing we cannot provide these person records he went to a general district court seeking a writ of mandamus ninety minutes later he went back and his request was denied he went back to request the same documents now assume and just to follow that dollars but i'll go through those factors refusal to communicate with his direct supervisor inability to work and interact with others they perceive that him to be a cyber security threat there was an incident where he filed a police report with the old dominion police this computer had been hacked the old dominion police were going to start an investigation he told hold off because he wanted to investigate further several days later he called the university police and told them that he had put traps ofter on his own puter to make sure that people weren't logging into his computer so that kind of goes towards a cyber security threat that police reports on j a six hundred and twenty and then there were some job performance questions and his ability to use sound judgment on the job there were issues where his inability or refusal to communicate with certain faculty was preventing things from getting done in a timely manner and this had gone on for about two years there were multiple reports made by his coworkers that made him  that it made him feel uncomfortable and i know this is trivial compared to those but there was a lack of eye contact during communication how is that all of that consistent with his performance about what his performance evaluations begin detailing communication misuse from the very st one in this list have brought out that his most recent evaluation suggested no issues that were noted is employer other than a stated aspirational goal to continue to improve his communication skills so when you just listed his or verbal laundry list of things that you would think would be reflected in their the reports well most of those things occurred after that performance evaluation was a shoot the all of the foyer requests there were seven of them and then there were troubling was him there with respect to the requests for the exam where you just listed as all of that in the written is ok and she wears that in the j it's on for fifty and through your grievance activity and withdrawing and refiling duplicative grievances and ignoring our guy our we've told you many times that we can't give you these documents it's through that behavior and that inability to sort yes it really goes into those things or fifty one or fifty three thank you yes your honor so turning to that we have some a situation where and i think it be get the grievance hearing that he had for his ultimate terminations the grievance hearings assuring officer noted and i think that's four for sixty four to forty seven that his preferred method of communication was using the grievance procedure he refused to interact the supervisor he refused to go into any meeting with any kind of supervisory figure without recording and it became a breakdown that had started in two thousand and eleven but it's a deteriorating to the point of old dominion had legitimate concerns with his well being and with his ability to perform essential job function and i think all of those factors constitute a legitimate objective nondiscriminatory reasons to cast doubt on his ability to perform an essential function which communication is and under the a d a s got is one of the permissible reasons to order a fitness for duty evaluation the entire reason for it is to rule out the possibility that there are some unknown impairment that is affecting this employee's performance  and i don't know that it would be a good precedent necessarily to set where a university could have just fired him multiple times over but giving but instead old dominion elects to give him any every benefit of the doubt until it reached a point where there was no communication because notably after he withdrew that grievance and you saw the documents the clock in documents that showed that he was having the same clock and requirements which he had been doing since two thousand and eleven why he chose to raise it to your slater i do not know after that human resources office to open investigation or retaliation and to them that was a signal of we've worked with him we've tried to do every but that there's some disconnect and it's just simple i don't agree with your decision on th that's why they ordered the exam and then when the exam opposing counsel represented that they ordered the exam because they knew that he wouldn't attend i think that's contradicted by his deposition testimony and on the record because he confirmed that he would attend two time now this terms of the title seven retaliation piece of the the equation i say that there was three of adverse actions because on page two hundred and eighty eight of the j a that's plaintiff's deposition testimony he  fitness for duty evaluation wasn't ordered in retaliation for him in gauging object activity because he didn't get incorrect activity for the last two years the disciplinary issue was they scheduled an appointment the st time he did not attend the rescheduled he confirmed that he was going to attend did not attend he asked before he confirmed he was going to ten he asked if they could move it to a close reading of his choosing they couldn't do it at the top but he confirmed that appointment did not attend so he was given written discipline for failure to follow instructions that is his failure to follow instructions after confirming your point that is the real reason why he was given that discipline is the one l this is a summary judgment case and so i guess the question is looking at the the valuation referral form why couldn't a reasonable juror conclude that the focus of that reform reform had was primarily emphasizing the his utilization of the grievance procedure not these other communication issues because they were flat and therefore high and that this is all pretext well to adapt to to show pretexts you would have to show but for causation for starters and the referral form is just a place that lists out these factors conveniently together the records replete with other evidence from the old dominion police report from his st response to the grievance activity of where he's fought for st performance evaluation where he's fighting over what communication is it's part of my customer service but it's and and and detailing all these events that just kept building and there the record i don't know that  reasonable juror could find that they're there to be pre checked because the reason that he was ordered for these things is borne out in the record many times over and the reason that he was disciplined was because he agreed to attend an evaluation and did not the reason he was ask him what evidence is there of pretext for retaliation and he says my own written words my own statements and i think this court's holding in maryland eastern  it's foster st maryland for sure that's my favorite recitation of but for causation because it's the real reason and in that case that burden falls on a plaintiff to show that the employer's proffered reason is false and that the real reason was written best in this record there are simply nothing other than mr johnson self serving in conclusion restatements to try to make that showing and this court i think is precedents bear out scintilla of evidence to the roundabout way to get back to your honest question as i believe that would be maybe a scintilla of evidence but when read carefully and read in the context of those thirteen paragraphs it shows that retaliation wasn't deep but for reason it just shows that through these grievance activities and particularly the later ones it showed a level of behavior that made you legitimately question if there were some kind of condition preventing him from understanding or why they couldn't given these documents or preventing him from being able to work constructively and communicate with his supervisors and again i think they could have fired him numerous times over they did not do that they tried to  he's not allowing us to resolve these issues and title seven doesn't immunize an employee using gives you protect activity from just simply not doing what his employer says or arguing with his employer or causing his  harassment the fact that he is engaged in projects that timothy doesn't mean that he has to stop doing his job functions and in this particular case is protected activity that got so examples amplified after september two thousand thirteen clearly demonstrated that he just refused to communicate or work with anybody or work constructively or work effectively with others and that's the reason that he was sent because they wanted to rule out the possibility that there were some sort of impairment that might possibly be accommodated because there was no other explanation that only you could come up with why he was acting this way so i will say that i do believe the title seven issue commonwealth wide policy one dollar it's not old dominion's policy and that policy states that when there are two or more active written disciplinary notices of the group to level terminations recommended so to use decision to terminate him based on the accumulation of written discipline was based on that policy so i think the rich allocation piece is very clear the piece i think is very clear in the sense of there's a lot of our objective  doubt on his ability to communicate and i think communication i know there's some debate in the briefs about whether communication was essential job function but the st list of job function is acquiring passing on and applying knowledge and i think that is cola and it talks about this idea of what is job related and it talks about their list of functions and then there's implicit functions in that case they were talking about the specific in that case was the employee refused to work with others and the judges on that panel said ok that's not listen his job functions best and since a function of any job that requires you that require that has other employees you have to work with others so i would say that in this  context i would say that acquiring applying and passing on knowledge is communication but to the sense that it matters to this panel whether that's a list a job function also it's implicitly in here and it's politically essential and it's implicitly key for him to perform every single job task that he had and it's important to think about the cyber security issue in the communication because he was an i t specialist to give support to the entire business college and public affairs college and  people like that don't know about computer they don't know about network systems and it's essential to have somebody to can help that university operate and there is placed there are places in the record where his unwillingness to communicate with certain faculty related and results he filed several grievances every time this was brought up to him accusing his direct supervisor of trying to fabricate performance this used to push him out that's just not the case so i would say that communication is extremely essential in this case and i would even argue that the threat of cyber security is a physical threat but it's not borne out in the opinions because most of those opinions predate today's digital era but i do think that this court should really pity emphasis on that cybersecurity part of that referral for him because that is a legitimate legitimate concern that a university would have with a high level i t professional what page does that appear to particular i believe it's on for fifty i will have it actually just in the short d heart it's on for fifty three is the employee considered to be safe sensitive position his i t training and skill his access university position place him in a position to cause significant harm to the university operations operations should he respond to frustration or anger and in appropriately the instructional labs that he supports our mission critical and his access to the equipment programs and systems leaves the university highly vulnerable and this comes on the heels of him filing the police report saying that he was hacked and then him admitting to the police oh i hacked myself because i put traps software to see which records e they revealed that it was in fact true that he had been treated differently that's where what your support for that yes around it what it reveals is he didn't believe them he thought they were fabricated he believed he was being treated differently and he believed that the statements from university that they were being that they were being required to clock in were being fabricated the ok so where is your support for when you said that they were being treated differently yes  is either emails in the record where he asked for that specifically from johnson and johnson's e mails on the record show that he clock in the morning so emails that and he sent me on the afternoon the his counterpart was clocking was not different for mr johnson and his counterpart in that ron well they say what they were sponsored was we've looked at it and you're both being required to e mail information in with regard to clock in and clock out correct yes your honor they did provide him and according to their referral the university complied with the order to provide the documents and the boy questioned their authenticity and demanded metadata from the ip department to be sure the documents had not been fabricated or altered right that's correct terms that's correct if i could if i may just as you asked a question with regard to this being summary judgment and i think that is  said you've got to look at all of the evidence the record of the summary judgment stage you cannot focus myopically on one thing one document and i will point out that that one document is  representations about him being a cyber threat there's no evidence in the record that he's a cyber threat there's no evidence that he ever threatened anybody or made some sort representation that he was going to harm anybody she asserts that an assertion based on her subjective belief is not object of evidence that he is a threat or cannot perform his job the rest of that di document as well as all the other documents the referral for the letter to dr sack the letter to dr johnson state that he's being referred for this fitness for good examination because he is engaged in protected activity and so for that reason and all the other examples that we refer to already pretext we believe that if you look at the record as a mekka i will note that the you've been court appointed to represent mr johnson in this matter and we appreciate your taking that assignment on we could not do the important work that we do without lawyers like you