radio was terminated from his positions in medical resident a karl hospital foundation october two thousand and twelve because he didn't pass steps re the illinois medical license to ensure exam and speech rights at least that's what the defendants would have you believe mr rico believes and i'm arguing on his behalf that there jury could conclude that they were he was terminated because of discrimination based on disability in his case the disability and some insomnia of restless leg syndrome and sleep apnea which is a disputed by the district court or the defendant under any sort of summary judgment issues the issues are pretty consideration and appeal these questions are there issues genuine issues of material fact for the jury and in this case there are these include firstly whether there or whether it is in fact so ambiguous as to basically give no guidelines at all either on the face of it yes rather it's just sort what is your best evidence in the record that dr rodrigo informed carl that he suffered a disability is there any refer you to the relevant section here i was going if he did anything other than telling his employer that he was tired and not sleeping well  about sleep issues starting in fall of two thousand and one including an april two thousand and eleven with doctors kim notice him and his supervisor dr gopal generally the prime counsel like i think you're missing the point of the question ok every medical resident sleep issues if you're on an eighty hour workweek you have sleep issues the question is whether there was any notice of a disability that is a particular medical cause sleep issues that is what i understood my colleague to be asking he had a medical sleep evaluation which he informed the doctor gopal of in november thirtieth two thousand and ten he talked with dr nelson about sleep issues not general whether there was any particular notice that there was a medical disability as opposed to this being an ordinary attribute of being a resident with a long workweek  i think that in particular in light of dark of carl's credibility problems including those of dark i think the answer to my question is yes or no yes and if it is yes tell me where in the record i can find i've been given you  his he's ready to start his third year but he's given time off right yes take the exam is there any other accommodation that would have been sufficient for him to pass that exam other than the leave of absence though that the third failure left him the sensually unable to be licensed in illinois it left him unable to take the illinois exam but under reciprocity considerations he could be take the exam teleflora be licensed ok but we've got here as i understand it is a residency program for the purpose of training doctors to be licensed in illinois are licensed ala so i guess i mean what i have trouble with in your position here is that you seem to want to distinguish between of the the the hospitals policy for employment purposes and for educational purposes i don't make that distinction they do so do use a reasonable for the hospital to insist that its residents be eligible for step at a time first the question i asked you is it reasonable for a hospital residency program in illinois to insist that its residents be eligible for licensing in illinois i'd say it's not reasonable ye i'm sorry it's no is this the one that's policy and it's exhibit twenty two in your appendix right  yes i understand  sorry please before me the question what's the ambiguity oh it says that you have to receive a passing score by the end of your second year it's a graduation requirement you have to pass it before you get a contract and then they say and this is interesting because it would appear to say in fact it does say that more than two fields will result in terminations but point is that's not what they do and it's not what the the policy they applied it's not what they discussed  the thing is that these policies are taken like a contract as a whole and you look at the policies and this is actually the instruction of the a t f as applied to the particular case so it's to the point that we were the assistant tells him you could result in terminations not it will when dr gopal discusses the issue with his own supervisor he discussed a range of possibilities one of which is given he doesn't say what you would expect if this were actually the policy if they actually tended to follow the literal words of this page we can't do anything we can terminate and finally he says that  doctor it regulates time away from the program so he can prepare himself get himself in shape to plastic that's how they actually implement the policy whatever the words here say what they mean what they do it sounds like no good deed eight so there was some small discussion about letting in clinic continuous clinical duties which by the way is against state terms of policy supposedly and let him take the test an infinite number of times when it comes down to how the policy is actually implemented both in the way they talk about or in the way they discuss it this is not their policy and if the amount of discretion involved is called policy if they allow them to take it an infinite number of times this is not a meaningful oath and it's still unclear whether it's an educational policy or an employment policy like for example the case of wizened which says you good morning your honor may please the court michael flaws on behalf of the defendant apple carl foundation hospital your honor there are two reasons that the district court's decision should be affirmed the first is that dr rodriguez was not a qualified individual with a disability and the date of his separation from karl and that is dispositive factor that eliminates all three of his eighty eight claims alternatively a review of the three claim shows he did not meet his pr focusing on the issue of qualified individual the aviate only provide protects those who can do a job with or without reasonable accommodation and handle all essential functions well this court of health essential functions can include attaining required licenses and in the lawyer vs swifty case this court held quote the employer not a court determines what functions are essential and we will not second guess that decision that's actually an overstatement and we've got a lot of cases that also say we don't defer terms of what its actual function of the job are but in this case the hospital reasonably has determined that passing in illinois licensure are reasonable requirements of this job passing the us emily dr roger ego we were very candid in our brief was a qualified individual for a period qualified to get into the program he struggled in the beginning went through remediation and then was preceded to his second year he was elected co chief and even though he hadn't even reached p g why three which is a stated policy he was doing well and they actually paid him his stipend to take on the role of co chief president despite not having met all the requirements this was in twenty twelve now once he had failed step three three times coupled with his prior to failures of different steps of the us emily illinois state law precluded him from illinois licensure as a matter of law unless he was to undergo significant rem and the statute as you can imagine is tough it's something like a one year study program in addition excuse me in addition to whatever else a resident is required to do there is no evidence the plaintiff ever wanted to undertake we rely on the lace in versus city of shelbyville case and i submit to you that it is not a distinguishable case from the case at hand in that case the city had a reasonable policy firefighters must be licensed paramedics misplacing to taking the exam and tried to get sort of like twice before she joined the city of shelby will fail when she joined the city of shelbyville she took the exam she attempted to take the exam two more times it's a program where it's about eighteen months right she f discretion in the implementation of all its policies in fact it is the cornerstone of the a d a s that there are some flexibility in some discretion and determination of issues onic case by case basis but the plaintiff is doing is  discretion automatically equals discrimination and it doesn't the law affords an employer discretion the employer simply can't exercise that discretion in a discriminatory manner yes well no the argument  understand a little bit differently to be that while a strict policy hassen your first three tries or you're out might well pass muster on th that wasn't actually the hospital's policy we honor dr goh pulse testimony that in his tenure which lasted seven years as program director no one he had never made an exception for anyone under the policy right as far as you know what do we make of this evidence that he believed it was just quoted a little bit earlier to the effect that dr goh paul and dr doherty were discussing the possibility of further tests taking further flexibility or that is actually true and i think it goes to the point you raised that no good deed goes unpunished they were looking at options was there an opportunity here to give him a chance to take the test again or is there something else they could do for him to help him pass and reflecting on alternatives to the stated policy they determine reasonably that they don't think he could pass the test he couldn't get illinois licensure and so they determined they made the decision a reasonable decision to apply the policy as written that they were not going to create an exception for dr rob riggle when they had created an exception for no one else before if anything they were looking to favor him in some respects by considering if there's anything they could do for him case is the same and so here they gave you some consideration but i think it goes back to a question judge over asked mr schwartz did they even have knowledge of a disability at the time he left carl but there was evidence from the fall of prompted that it was actually early two thousand and eleven dr rob riggle had failed a rotate two rotations in his first year went through remediation and then he failed the same two rotations a second time and what they were trying to terminate is he doesn't seem to be taking what we're telling him to improve to be better could there be a problem dr gopal was very candid he said i don't diagnose my residence i don't treat my residents we just thought why is he making the same mistakes over and over again could there be a problem so they recommended some testing to determine if there was a problem and if so what accommodations could exist that never happened it never happened and the record shows doctor tried to disclaim that in the facts on summary judgment but brief he was to go ahead and schedule him self he never schedule it but then your honor what happened at the rest of two thousand and eleven as he went through the second round of remediation never went back on remediation and moved up to his second level was doing so well that his other residents nominated him to be co chief resident the hospital was so impressed with the turnaround that they agreed to pay a stipend and actually give him the position even though he had reached the third year that to them evidence there was no problem if anything his success he's doing so well showed that there was not any sort of disability you go into then the rest of two thousand and eleven arms excuse me two thousand and twelve and that's when you start failing step three over and over again and the record evidence going to go back to judge wrote an earlier question it was november thirtieth twenty twelve it was a doctor's note from a doctor named dr davies that was the first time written documentation was presented by dr rodriguez indicating that he had some sort of sleep issue the sleep apnea etc before that your honor it had touched on this very clearly it was generic complaints of being tired the complaints were always tied to the workload is too much i'm too tired i'm just not sleeping well and it was complaints that dr nelson and dr gopal testified to was common amongst not only the internes in the residence but even the attending physicians for a similar complain nothing that would have put harlan notice of a specific disability and the need for specific commendations and judge that you had asked that question after it failed step two twice was there any other accommodations besides a leave of absence that karl could have given him to help him pass the us emily and i would ask the court to just take dr rodriguez own testimony in this regard where he said and i quote at that time there was nothing else karl could have done other than give him a leave of absence and i think it's telling that he didn't want the leave of absence carl insisted he take it so that he can focus on what he described as the most important thing in his professional life at that time so the only accommodation he's ever suggested even without them knowing of any disability was to give him time off to study which they did so i would say your honour's as to this dispositive issue the fact that he was of coral was actually out of compliance with national policies about workloads for rosamund's some of those bubbled up into a problem after roderigo had been had been terminated briefly just looking at the individual claims to the extent the courts the court goes beyond whether he was appalled fide individual as to his disparate treatment claim plaintiffs proceed solely under the indirect method under the mcdon douglas standard he has to present to come parrot or that is the key element to establishing your prima facia case he chooses an individual single individual named dr reid who graduated in september of two thousand and six four years before dr rodriguez even joined the program at that time it is uncontested there was no us emily policy it was adopted in two thousand and seven dr rob riggle had been employed there for three years with the policy in existence there were different supervisors and most important the evidence is clear dr rodriguez could not qualify for an illinois license but there is no such evidence as it relates to dr reid and president of this court makes clear that the compared to our must suffer from similar failings that alone is enough to eliminate the disparate treatment claim and that claim in their brief and again i was this was discussed today but plans go back to this idea there was discretion therefore there must have been some kind of discrimination they were considering other options the policy was unclear it's not even a clear policy on october twenty eighth after dr rodriguez had failed step three a third time he put in writing in an email that's part of the record it's docket eighteen dash twenty six exhibit twenty five and summary judgment quote i realized germination of my residency is a valid option the policy was not ambiguous it was well known what the risks were failing to pass the assembly step three looking at the retaliation claim here plaintiff chooses to proceed under the direct method but his retaliation claims fails for two reasons he has never identified an actionable protected activity and he has never connected any protected activity to causation he mentioned sleep issues in early tw eleven but again they were generic complaints nothing that was a actually engaging a protected activity but it's also barred by the three hundred day no it's not your siri there seems to be th employer waits for three hundred in one day it's from a protected activity and then takes the adverse action that he gets immunity from want to belittle the clock starts with the adverse employment action not with the original protected activity workload but as we've discussed that was a generic complaint of being tired and not sleeping well there was nothing about an actual disability his other request was a request for reinstatement in november two thousand twelve after his separation from karl the problem with that one is is twofold one at that time as we've discussed carl did not have knowledge of an actual disability he didn't submit anything to carl until the end of november but second on its face the request for reinstatement is on reasonable and i think captures that quite well and in that case what she had sought was an extended contract for contractors three years she wanted more time to be able to try and take and pass the certification exam again and what the court said was an employer does not have to change basic job qualifications just because someone is disabled the evidence showed only that lace and simply could not qualify as a paramedic well here it took dr roger ego two full years after the first time you passed he'll step three to ultimately pass