cities report that affects just him no other members of the city's report no other civil service members know the safety rules just him and the policy impacts multiple areas of the one being improper inquiries and disclosure of medical information improper confinement improper search of their homes to make sure they're really there with that without any just cause for doing so loss of benefit as well as the same kind of privacy rights under the state constitution and state law the first issue is that i'd like to address with the court is the proper medical inquiries in disclosures under the rehabilitation that there is no doubt the rehabilitation act applies in this case the applicant the petition alleged that city is report receive federal funds and in fact allege at this report police department was receiving federal funds so even under the old case of brown that would get you under the rehab  title one because we do have to exhaust remitting under that statute but under title two we are not required to and although i understand the eleventh circuit opinion may be the minority under i believe it was correct because it was a play out plying the regulations which the statute instructed the department of justice to draft and so i think the standards are the same but under the rehabilitation act in the statute itself incorporates the prohibition what they are required to do with a missile one eight hour shift they have to sign a release granting the serious report and then as reaction is put your police department access to any and all medical records and hospital records regardless of what it's for but now you can go research every medical records i've ever had and that's what the that's what the policy requires it also requires after the third time in one year not three consecutive absences but you get contained within the rehabilitation and has to be ok to ask for medical records supporting the fact that you're sick today if you ask me to give you a doctor's note that we fund but the policy says a doctor's note saying you were sick doctor if this officer is disabled you can't get more directly work to inquire into whether or not somebody is disabled if you're asking the doctor this person is totally disabled that is a improper inquiry and it's being done not far they're both members of the same exact civil service board subject the same exact civil service statutory law and their ultimate person who hires him a same exact person the mayor the city is report so you can get the end both groups get the exact same amount of sick leave which is the purported it reason that they want to make police officers stay home for seventy two hours if they stay they miss and eight hour shift they're not doing that to firefighters on  what we need to do is kind of focus on what they're really asking hey we've heard some new kind of exaggerated descriptions of the inquiry and essentially what that the document provides is and it's a speedy form of for these medical insurance because you can't say oh the us sole reason that this report just wants to do this is based on this on the disability that's that's not a plausible claim that was our contention belo to say that that's the causation element in the rehab act that's absent from the any idea and that to score that specifically it must be quote soley by reason of her or his disability that's why that such a claim under the rehab act is not even plausible degrees earned then than an employee though have the right to privacy of his medical record as long as at least to the extent it might show a disability i mean that the thing that can turn me about it is apparently the department wants to get all of the officers records all of his medical records even though they may have absolutely nothing to do with why he's not there today or their lives you know last three hours himself and that to why when that allow the employer to determine whether he has form and it says it's all referencing quote in connection with my absence from work that's all that they're disclosing that's in the part that the officer signs it says all necessary information that that's what the that's what it's referencing it doesn't say just because you're an absent then we can go get any record you ever had about your health of course not it says in connection with my absence from work record excerpt exhibit one at the last page that set the record point six three it's specious to suggest that that means that a police department can go get anything about that officer that's not correct at all the inquiry that's here is and the officer can get a physician to write a letter that specifies this the reason for the absence of the diagnosis are they able to perform the functions of the job those  well that may be why we have backed issue is so important because how could you suggest that that request or that the reason the diagnosis that can you perform your job is it intermittent or not those the four things that we're talking about that's what the physician is being asked to provide how can we suggest that that is an area what if someone had aids them and so you see in this inquiry to redock what is the that that would be correct but that's not prohibited in korea for an employee i mean this is in other words it would be perfectly if it be perfectly legitimate under these act for the doctor to respond elicits a response that happens to be a disability doesn't mean that's an improper in clearly in the employment said so that fact that it revealed that yes in fact he is disabled doesn't mean that to say why are you not coming to work is for your firemen they have a different policy and i would you have a different policy for the farm because they're not in the same setting and interacting with public like police officers or they're not it's just a different job it's different set of rules and regulations they're not out of you know more combative with suspects and doesn't require the level of scrutiny perhaps that police officers do just different you know not the don't have to be as physically fit or where they're there probably aren't physical i mean they have their own set of physical fitness requirements they've got to be able to carry hoses and things like that differently than police officers do have to be able to have a different p t test but the center of a versus hourly work it's different and that's why what i point was you can't go say well department of water and sewage people may have different rules and regulations that don't apply it's not the purpose of the point of a court to be getting in the middle of that at this point it's  this obviously there has to be a distinction there it's not an equal protection client to say that they're for departments within a community of government are treated differently but but back to the  that the point that i was trying to make is that the rehab act is rarely used in the settings because of that causation now it's used in discrimination claims as to treatment but this medical inquiry how can you say that the sole reason you inquire of why you want to work is to discriminate and that's what makes that the plausibility of a problem you know them for years is that the only thing you're asking if it is this setting we're we're evaluating whether there's a factual issue for trial as to whether or not you know or to proceed or can you make that determination as a matter of law it's something that the district judge did and  there was one pregnant officer that had more or less in the plot line that that's what it seemed it was very it was very bad but that would be the only one with a and applied declining which was  it really was it was i'm pregnant and i may have to return and not get my old job back i think was what her claim was and i may be assigned to the h r department which i think those claims have been abandoned because they were briefed but that's the only specific individual who made such a and applied client right now in terms of a person exhaustion when required in these other issues that were that were led to that and that under the rehab back to it's plausible to say that that inquiry has soley on the basis of disability then the would go back and that would be the thirty six is without prejudice they just haven't taken that advantage of that opportunity then they would proceed with a da claim they wouldn't be saddled with this soley causation issue that they were in rehab that cases the judge also it's going to be is that inquiries soley for purposes of discrimination not does it tend to lead to the disclosure of information that you know it's a different standard i mean really i mean if you i mean if it stated a claim under the rehab act and included that heightened causation issue then we would come back and have the same analysis of whether there's a business assessing your lawyer at our point is you you didn't who wants to know he only read you the first part of it about what the officers are obligations or the authorization says i authorize a request any and all of my physicians and hospitals to furnish all necessary information request by the department and here my acknowledge that subject to disciplinary action all information provided is true and correct it is not limited to what they called in sick for what they were absent for and that there in lies the problem in their hands why it is there there is no reason for need all that exactly unless you are looking for something else and we are here on a motion to dismiss as opposed i mean it is your mind are not focused on this form and what you have to disclose it is what you have to disclose and what they are talking about even though these this information on this form is being left laid around for anybody look at lieutenant are talking about it about health care in front of other people have no business knowing about it that's a problem that is my issue with that and then come in and knock on my door when i'm home sick to make sure i'm there because not because you think i've abused the system just because we think we canin that's the problem and you're not doing that to your firefighters who when they miss a day think mystery shifts so when i haven't gotten protection i feel that that is definitely a legal protection climate think you're on i think there are similar was just dismissed and were not given the opportunity to to reelected to remain the petition to further that out the issue is you have firefighters or police officers or based sex type officers firefighters