right think we're ready for our second case for today which is sheets against in terror credit union mr leary good morning may please the court jack sheets brought two claims against terror credit union under the americans with disabilities act first claim is the breach of confidentiality and this case appears to be the first of its communications so this case is different than blanco versus baffle iron works in which the disclosure was committed by a doctor was an in house salaried physician this is an independent contractor and we say that it doesn't liability so mr sheets as i understand it your argument is that when the board asked for updates on his planned return in for those to be communicated through mr becker it was actually asking for confidential medical information but i think that's kind of a leap it seems to me it would be quite easy to update on planned return saying things like you know my doctor thinks i'm going to be ready to come back to work in six weeks or whatever i'm just making up something that seems to me to be quite easy to do that without delving into the medical records and if that's the case then the district judges sense that it was really mr sheetz voluntary disclosure that had gone on makes sense you can't take it out of context judge would you know this is the this is the c e o of a large credit man who has been delegated enormous amount of responsibility and you can tell by reading the letters that the chairman rode to jack the credit union was it was extremely concerned that jack would attempt to return to work before his recovery was complete you can you can see that plainly in the letters and it was in tara that initiated the requests for information by first sending jack the f immolate forms well what was wrong with sending f m l a forms if he wants f m l a leave well that's interesting because he didn't and that's the point you'll notice in the in one of the board minutes the vice president came to the board meeting and said jack won't we sat him the paperwork and jack won't sign it and the clear inference is that the credit union on its own initiated that concerned that he would try to come back but nothing leaked from the f n l a paperwork anyway the board made that request directly no that's true but as the court said in thrive and the district court opinion it's the party that initiated the request for medical information and that initiation began with the request having trouble seeing that as as a request for the medical file as opposed to when he's likely to return and things that are of a more general nature will i think it's the same thing i  mean it doesn't have to be it doesn't have to be but i think in this context it was they did not him returning until he was cleared medically so they wanted to know about his medical recovery and so when he tells back for one of my for treating doctors has a problem with my medical flexibility he is complying with the with the and in terror as directed at least to to discuss i think how the district court may have got it wrong and that was after telling jack that he had to provide time porous and after jack sent the e mail to back her saying no i can't there's a conflict of interest i'm i'm in terrace lazing but then becker came back to him and said here's a medical release this was april twenty seventh and i think he declined to be h intermediary around april twentieth so here becker comes back and says hey we have a play on the monitor your medical flexibility here's a medical office nation that will allow me to talk directly  there was some language i don't recall that the precise language but to say that back and override a federal statute that imposes but the federal statute allows you to waive that right that's a thing it's not something that you know on a waiver but let me i'm going before your time is out i want to ask you about the discrimination claim too because what i'm having what i'm struggling with is even if we assumed that mr sheets was perceived as having a disability and even if we assume favorably to you that he he could perform all these sexual functions of his job i'm having trouble with causation because reading your opponents free it seems that from a time long before his medical incident his hemorrhage there's tension with the top management group maybe not with the whole set of people who work for him tara but there's tension and so if that's there before then this venture company comes in and works with them he gets a little better and then they say well actually backsliding by october and by january of the next year they say we've had it and they try to work with him for a small departure that doesn't work and so they just fire him why d disability have anything to do with that active letting him go to reasons judge we have we have suspicious timing and i'll get to that in a second and we have the words themselves the timing is suspicious because you have to get in context jack was president for twenty six years and you got a sense of how successful he was in that role the growth of this little  employees and four thousand members up to fifty five thousand members half a billion dollars in assets obviously he doesn't take full credit for that but he was at the at the controls and there was some tension as you call it but let's be fair and identify what it was there was a handful of complaints three but i gathered that some of the top management people are the ones who are regularly complaining to the board not right well i disagree because we have the board minutes we don't need to speculate what they were thinking we have the board minutes of december of two thousand and ten the month before he had his hemorrhage there is nothing in those minutes indicating the type of negativity that the appellee has suggested in this case in fact if you look at that board minutes of december of two thousand and ten judge would you'll notice are talking about doing an evaluation six months down the road in july of two thousand and eleven that is not the language of a board of directors intent i'm terminating a president at that and that's inconsistent and that's our our park ace in that regard is that there's nothing in the record contemporaneously indicating that level of dissatisfaction was the perfect of course not he had the room for improvement and by all accounts he met expectations but look at the timeline i mean it's it's very interesting isn't it he comes back to you know august eleventh he's rescored he's gone through executive coaching his coach praises him highly he has an evaluation an april of twelve that's excellent and outstanding gets a twenty five thousand dollars raise between april of twelfth and august the seventeenth of twelve there's nothing don't give someone white sox tickets and make no negative comments about them and then four months later you're talking about his inability to focus focus focus focus i think that works against you on causation here th two year time gap between the time of his brain hemorrhage and the perception on the part of the credit union that he's got cognitive impairments and the terminations decision to press the timing is not at all suspicious they worked with him for two years  to address the preexisting leadership deficit that had been noted and in fact prompted the bringing in of this outside consultant well which all occurred before was based on a longstanding problems with his leadership style but in leadership abilities rather than the judge sykes you know that same company in their report on a two thousand and seven evaluation called jack she's a visionary knowledgeable risk greatly respected within the industry you know maybe they over emphasize the deficits but that's not the issue on an eighty a claim the claim is whether he was fired because of the perceived disability well and there's just no evidence of that here the confirmation evidence is michael that i'm eating into my bottle i'm going to come in to press forward on this on this point i think you have it's a very interesting case you have a consultant who wants to stay on board and understands that jack is the is the party that has ended that and who then lobbies to stay on board first in a report to the board where he talks about shaq as you know cognitive recovery and so forth then he sends the e mail to to to berkeley and you can see you know he says he he's he's talking about we're ending our relationship but you need to know that he has a conduit of injury venture leaves the scene in july of twelve a month that compliance call judge site is still being discussed in the board meeting of december of two thousand and twelve a month before they vote to remove him they're still talking about that compliance hotline call among other things but the if you if you if you look at that december boardman and you look at the january decision what are they talking about lack of focus three of the board members mention focus warner brood and ash a fourth board member is david myers david meyers testified under oath that as far as he could recall the only thing he remembered that was given to the board at that time was was negative information from david berg the compliance costs now that's significant because we know that's erroneous there were other things but that's the only thing myers could recall so i i say there are four board members based on this record that base their decision on the compliance call accusation with all due respect to mr o'leary in this case mr sheets we do believe the o c or excuse me we do believe that the district court to get it right mr leary talked briefly about the disclosure claims and he mentioned the e e o c versus thriving decision and we believe that some point for a variety of reasons in that case the e e o c took the position that the e mail from the employer to the employee when he did not show up for work on time was what your status what's going on that type of e mail was a medical inquiry as to his ability to perform job related functions and when he responded that with respect to having a headache migraine related to him on a motor vehicle accident and that was subsequently disclosed the e e o c took the position that the word inquiry as taken the same leap in this case this is a letter from february of two thousand and eleven from the board asking him her telling him excuse me mr sheets that we have assigned mr back to her as our liaison to keep us one one employers and title the ask what's the status of your lead do you need more time i leave you need a shorter can you come back sooner and that is the nature of this request but mr sheets does not or mr larry did not talk about the fact that what's the context of this request the context of this request was that mr shes was the president and was the c e o not only was he subject to the f mily policy he was aware of it and he had had a hand in creating it and he did not comply with the board at several times during his hospitalization asked we need a family certification and he refused now once not twice repeatedly in his deposition he admitted to that he admitted i was exercising  medical disobedience my rights to medical disobedience so that is the context and that is the purpose of that letter now after mr bechler is appointed as the liaison before he has any communication with mr she ts what has mr sheets do he sends him an on an e mail and requested by mr bechler providing him with an authorization to get his medical records providing a form called hipaa request my request for your inquiry and providing information regarding his diagnosis with metal mental flexibility issues being treated similar to a stroke victim having visual inattention issues and a right of other medical conditions all this was a volunteered by mr sheets to mr b there can be no dispute that mr sheets volunteered this information to in terror through mr baxter and how so when the information even if you're right and summary judgment should not have been granted i tell from his record pass along this medical information which burkey then you but the jury could think immediately axon by poisoning the board  and leading pretty directly to sheets is firing so i mean all of this is you know focus and he could think that was those were soon limbs for cognitive isn't there a jury question on the discrimination point your honor one might think that but i think if you take the context of all the evidence which is what we do now which is make clear by this court in the  decision issued on august nineteenth twenty sixteen we look at all the evidence and and the threshold of the question is will that evidence or could a reasonable fact finder infer that in this case mr sheets was terminated because of his perceive disability and to answer your question judge in a vacuum i think that's an appropriate analysis but here let's look into what was occurring before hand as though i can't wait evidence mean the jury might have thought that what had happened before hand had been forgiven by the time he really seems to be finally taking the lessons in april and he gets the raise and people are saying gee you know he's really making great progress with the coaching it's manners improved or whatever else positive saying a lot of he has people there on a daily basis all the s m t which is our senior management team that team of which mr burke he was a part of there is a liaison there's a specter of back there type representative from venture within those meetings all that was happening during decided to be at industry meeting and i mean you don't give people raises that you're not happy with understood your honor i would care if you were below the median only mr sheets probably true it's a valid point and  simply mean that and this is during the course of this process ventures involved in there in the mix and venture leaves of the summer and what the board saw was reemergence of issues that have existed well in advance of ventures involvement and well in advance of mr sheets haemorrhage we have a long history of mr she's in there an organizational assessment in two thousand and seven i'm just really areas indicated there was no mention of focus prior to the hemorrhage and that's simply not the case the record doesn't support it the record is clear in two thousand and seven venture was brought in because in terra was in a crisis mode and that when they're brought in by what he points out is that their report at that time is you know mr sheets has pluses and mr sheets has minuses other people have pluses they have minuses to the company has been very successful i mean it really is a story of of excellent growth of a company so why couldn't a jury wonder whether mr sheets was really all that terrible is he as presidents or what your honor i don't believe that under the under the  discrimination charge the termination charge that we're looking at the evidence we do not believe points directly to it's not the but for cause of the term a nation that is what his burden of proof is the show it's the but for cause and we have been regarded as the district court appropriately found i think seven when he came back on because of preexisting issues you saw his failure to complete the goals and objectives that were set forth for him in april of two thousand and twelve you saw it disengagement between mr sheets in a senior management team which was one of his goals and objectives mind you if we saw that at the retreat in september of two thousand and twelve and maybe most telling of all in december of two thousand and twelve mr o'leary point of there's nothing in that record in those executive minutes that would show that the board had any reason to do what it did mr sheets came into that meeting in prague and after executive session he admits to the board that camaraderie and communication among you are among and between himself and the s m t had not improved at all and that was too much to certain and that was one of the major goals and objectives historically that was an issue in two thousand and seven we didn't assessment he was a poor or of porridge communicator he had he lacked a focus in the sense that illogical leave illogical leap in our opinion that the same board that hired venture in two thousand and seven to come in and do an assessment the same board that when mr sheets expired who gave him a raise in april two thousand and twelve who gave him white sox tickets and is a tigers fan that's to me to hear that even the case all of these things that this board did and then all of a sudden within a couple of months develop a discriminatory animus or because of a perceived disability that just does not make any sense we believe that evidence taken as a whole and looking at it in a straightforward way as is required in order to  demonstrates the board did not have discriminatory animists here the board did work with mr sheets for a two year period of time and that's one of the things that the other board members remind you this was a decision of of of seven in january twenty thirt it was a decision of six and march because one refused himself without any permission but the ultimate decision which began the process would is it was a decision of decision of seven excuse me he's pointed to three mr warner stretch there's no dispute they used the term focus and they've testified under but of the what they believe and what they meant by focus focus issues that preexisted twenty eleven but there are other there are four other members now mr meyers was brought up by mr o'leary and this is his argument and what mr o'leary said was well mr myers testified in his deposition that he can only remember negative things about that b the failure to provide goals and objectives and mr meyer mentioned those things in his words were we don't have the right people on the bus mr ruef another board member said at that meeting that he was felt like we were spending too much money  had disappointment in this or sheets of performance at the retreat and he was disappointed in the way that there is interaction in mr warner in this bruton in mr ash that similar things he's taking these things out so we believe the overwhelming evidence in this case would not allow a reasonable fact finder to infer that there was any discriminatory animists additionally i think i would be remiss not to address one last issue of the court with so allow and that is the essential function portion of it issued summary judgment on that issue alone as far as the termination claimed and we believe that the court was correct in doing so mr sheets must be he must be able to perform essential functions of the job he's not asked for a reasonable commendation and one would argue that he's not entitle to one anyways under be regarded as wrong which is the only definitional element that he's he's pursuing this case under i think one two two zero one subsection agent a case that that may not be available or is not available to individuals pursuing it but putting that aside just a girlie of pointed out a litany of things that shows that mr sheets was not qualified and could not perform essential functions of the job at the time of his terminations and that was key as mr o'leary in his brief and rightly so talked about the things in the improvements that mr sheets and made under the tutelage of venture which i talked about in my my arguments today but at the time of the terminations we must focus then what was he doing in january twenty third this was on the heels of his failure to provide any documents area evidence to support his completion of goals and objectives that were given to him in april two thousand and twelve mr sheets himself in this is in the record i sent an email to mr warner the board chairperson who said steve you're not going to find any materials in response items five six and seven goals and objectives five six and seven that's mr she admission it's a telling admission with respect to what the board was dealing with at the time that they made the decision to terminate his employment and we believe that's been elsa's so i'm into my last minute and i would just like a closing for all the mr leary why do you care act the way that it did it acted the way it did because it had an interest in mr sheets coming back to work if you look at the report that bechler offered in april of two thousand and twelve i think the opening sentence in that report is the credit union suffered immense trauma by the unexpected illness of a c that's a compliment in the same report he says that mr sheets successfully transitioned back to the c e o president position so what changed or what changed was someone in the trenches david fed that concern that he might have a cognitive impairment and if you look at his compliance hotline transcript he uses focus he says the jack can understand his trouble in a breathtaking plan of cleverness then reports that to the board and it's a nine point memo you don't give a nine point memo except when it's a five alarm fire and anyway ok well