[00:00:00] Speaker 05:
I'll call the third case today, case number 241055, Shear versus Sisters of Charity.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the court?

[00:00:14] Speaker 01:
My name is Ralph Lamar, and I represent Bethany Shear, the appellant in this matter.

[00:00:18] Speaker 01:
What I'd like to do first is start off by explaining that I have surrendered five minutes of argument to Carla Gilbride of the EEOC.

[00:00:27] Speaker 01:
And I would like to reserve two minutes of rebuttal, if I may.

[00:00:31] Speaker 01:
Thank you.

[00:00:33] Speaker 01:
Your Honor, we are asking that the district court's decision granting summary judgment to SCL Health be overturned, reversed, and sent back on remand for it to make any other findings that it feels important.

[00:00:51] Speaker 01:
Its decision was that Ms.

[00:00:54] Speaker 01:
Shear had not shown

[00:00:56] Speaker 01:
that there was a materially adverse employment action in being mandated to attend and be part of an EAP program and to sign a release that would allow SCL to know whether she was complying with the forced treatment plan that SCL was going to put together with the EAP program.

[00:01:19] Speaker 01:
And she was also suspended without pay and fired.

[00:01:24] Speaker 01:
Shortly after the appeal was filed, the U.S.

[00:01:27] Speaker 01:
Supreme Court held in Moldova versus the city of St.

[00:01:30] Speaker 01:
Louis that the standard that the courts had been following for the past 40 plus years was inappropriate.

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It was not supported by the language of the statute and the only standard to be used now is whether there's any injury

[00:01:44] Speaker 01:
to the individual.

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It doesn't have to be a materially adverse employment action.

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And the specific case that Judge Domenico relied upon in granting summary judgment was Sanchez versus Denver Public Schools.

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And that case was specifically abrogated by the US Supreme Court in the Muldrow opinion.

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So at this point in time, based upon that, we would ask for a summary reversal.

[00:02:13] Speaker 01:
But if the court has

[00:02:14] Speaker 01:
questions and want to know about any of the other issues before it, I'd be happy to answer any of the questions.

[00:02:23] Speaker 00:
Is your case wholly reliant on the proposition that pretext is not a question because you don't use McDonald Douglas?

[00:02:40] Speaker 00:
Exactly, Your Honor.

[00:02:42] Speaker 00:
And it started back with Morgan versus Hilty in this court.

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So are you in trouble if the determination is that McDonnell Douglas is applicable?

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Because whereas you may have shown a prima facie case, there is no direct evidence.

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It's all circumstantial.

[00:03:02] Speaker 00:
Does that mean you lose?

[00:03:04] Speaker 00:
It does, your honor, but that decision would be wrong.

[00:03:07] Speaker 00:
I know.

[00:03:08] Speaker 00:
Okay.

[00:03:09] Speaker 00:
I understand.

[00:03:09] Speaker 00:
I'm sorry.

[00:03:10] Speaker 00:
If we determine McDonald Douglas applies, do you lose?

[00:03:15] Speaker 00:
Yes.

[00:03:16] Speaker 00:
Okay.

[00:03:23] Speaker 03:
Can you help me then just understand, I mean, obviously you say this case applies and we're done, is your argument correct?

[00:03:32] Speaker 03:
Yes, Your Honor.

[00:03:32] Speaker 03:
Can you help me understand how the facts of that case mirror, I guess in your argument, the facts here?

[00:03:42] Speaker 01:
The standard that the court utilized was that being forced to undergo treatment by your employer

[00:03:53] Speaker 01:
when there wasn't any factual basis for it, it was based on a false premise, did not constitute a materially adverse employment action.

[00:04:02] Speaker 01:
And the Supreme Court said, that's not the standard.

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The standard is whether there's any injury.

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So if the district court utilized the wrong standard, in fact, the district court's opinion even suggested that upon remand, it will find that there was an injury.

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Because it went to the point of saying it sympathized.

[00:04:23] Speaker 01:
with Ms.

[00:04:23] Speaker 01:
Scheer in her concern about being forced to undergo therapy and treatment based upon something that there was no support for.

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Now, the district court did make some errors by suggesting that there was no evidence in the record that suggested that they would share the information.

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But what the district court didn't acknowledge in its opinion was that the testimony from Daryl Gedney

[00:04:52] Speaker 01:
who was the therapist who did ultimately end up treating Ms.

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Scheer.

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Ms.

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Gedney had been a consultant for an EAP in the past.

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And when a mandatory referral is made, the employer actually talks to the consultant at the EAP and sets up a treatment plan.

[00:05:10] Speaker 01:
So it's actually designed by the employer.

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So the employer tells EAP, this is why we're sending her to you.

[00:05:19] Speaker 01:
Now, they didn't have any statements from any of the witnesses.

[00:05:23] Speaker 01:
They claim she was suicidal.

[00:05:24] Speaker 01:
Ms.

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Shear strongly objects to that and says, no, I never said anything that was suicidal.

[00:05:30] Speaker 01:
And one of the purported witnesses that they based this referral on specifically denies ever telling SCL that Ms.

[00:05:39] Speaker 01:
Shear said anything of a suicidal nature.

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So they completely skipped the idea, which is built into the statute of having a medical exam.

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So there are a number of cases that deal with medical exams.

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And I don't know if I'm pronouncing it correctly or not, but Enzir from the District Court of Columbia.

[00:06:00] Speaker 01:
One of the reasons why that didn't end up in the plaintiff's favor was that they did a medical exam, and the psychiatrist or the psychologist said that he had serious issues.

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And the employer's response was, when he's done getting his treatment and when he's released, he can come back to work, which is what SCL could have done here.

[00:06:21] Speaker 01:
If they had a good faith belief that she was suicidal, they could have said to her, we're going to set up for you an eval by somebody.

[00:06:30] Speaker 01:
And once the eval is done, we'll review the information, and then we'll determine whether we're going to send you to EAP.

[00:06:37] Speaker 05:
But they didn't do that.

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Nazir, Nazir, which the district court relied on here.

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Isn't it also subject to question following Muldrow?

[00:06:50] Speaker 01:
Every single one of them is, Your Honor.

[00:06:52] Speaker 05:
Well, sure.

[00:06:52] Speaker 05:
But you seem to be distinguishing it based on its facts.

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Do you even need to do that?

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Because in that case, the court relied on a standard of materially adverse action.

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So that also is no longer good.

[00:07:05] Speaker 01:
You are correct, Your Honor.

[00:07:05] Speaker 05:
Isn't that a simple way to distinguish it?

[00:07:08] Speaker 01:
It is.

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The easiest way is to say that all of the cases in the past that required a materially adverse action should no longer be considered.

[00:07:19] Speaker 01:
But I'm trying to also make factual distinctions that make it clear that what SCL did here, sending it back, the court can certainly make a determination whether she was injured, but that's

[00:07:33] Speaker 01:
It's first determination, because it didn't do that at summary judgment.

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And this court's practice is to send cases back to have the court make a determination on something that it didn't do initially.

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But I see my time is up.

[00:07:47] Speaker 05:
I'm going to... Should we?

[00:07:48] Speaker 05:
There's other... I'm sorry.

[00:07:50] Speaker 05:
Go ahead.

[00:07:51] Speaker 05:
Your time is up.

[00:07:51] Speaker 05:
I apologize.

[00:07:52] Speaker 05:
Go ahead.

[00:07:53] Speaker 05:
Thank you.

[00:07:57] Speaker 04:
Good morning.

[00:07:57] Speaker 04:
May it please the court, Carla Gilbride with the Equal Employment Opportunity Commission.

[00:08:02] Speaker 04:
There are two independent grounds on which this court can and should reverse the district court's grant of summary judgment.

[00:08:10] Speaker 00:
Ms.

[00:08:11] Speaker 00:
Gilbride, using your left hand, there's a microphone.

[00:08:16] Speaker 00:
Could you pull it down so it's close to your face?

[00:08:18] Speaker 00:
There.

[00:08:19] Speaker 00:
That helps.

[00:08:19] Speaker 00:
Thank you.

[00:08:21] Speaker 04:
The first, as discussed by Mr. Lamar, relates to the quantum of harm Ms.

[00:08:27] Speaker 04:
Scheer must show to the terms, conditions, and privileges of her employment.

[00:08:32] Speaker 04:
The second regards the causal chain from her perceived disability to her ultimate termination.

[00:08:39] Speaker 04:
Quickly addressing the quantum of harm, the district court in discussing other cases, such as the one with the District of Columbia Court on EAP referrals, said because the referral here was mandatory, the needle moved closer to the line of adverse employment action, but still didn't quite cross it.

[00:09:00] Speaker 04:
But the line the district court was analyzing there was the line established in Sanchez versus Denver Public Schools, which was expressly abrogated

[00:09:08] Speaker 04:
by name in the Supreme Court's Muldrow decision.

[00:09:11] Speaker 04:
And the Supreme Court in footnote two of Muldrow said many cases under this standard of some harm to an identifiable term condition of employment will come out differently and claims that failed under a significance standard should now succeed.

[00:09:27] Speaker 04:
We submit this is one of those cases that was analyzed under a significance standard and should now succeed under the Muldrow standard.

[00:09:35] Speaker 04:
The question of what exactly is the harm here

[00:09:38] Speaker 04:
And how does it map on?

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There were two harms from the mandatory referral combined with the mandatory release of medical information, which was a required condition of her continued employment.

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First, she lost the freedom to engage in therapy on her own terms with a therapist of her own choosing on her own schedule, and the terms were set by her employer.

[00:10:05] Speaker 04:
And then, significantly, she lost the ability to have, you know,

[00:10:11] Speaker 04:
trust in the privacy of her medical information not being shared with her employer.

[00:10:16] Speaker 04:
Specifically, in the deposition testimony of the counselor at pages 149 to 150 of the Joint Appendix, there was a discussion of whether information about what appointments she attended would be shared with the employer, including for a one-year period if she stopped going to therapy,

[00:10:36] Speaker 04:
under the EAP program and then at some point in the future, resumed therapy, the employer would be notified that she had begun going again, which would give them information about her medical, you know, her mental health and her mental health treatment that she preferred to keep private.

[00:10:53] Speaker 04:
And those sorts of concerns around medical autonomy, privacy and confidentiality of medical information,

[00:11:00] Speaker 04:
were in the sights of Congress and were particular concerned animating the passage of the ADA.

[00:11:08] Speaker 04:
And speaking of the ADA, you know, lest there's any question of whether the Muldrow opinion applies to the ADA, we submitted a letter of supplemental authority pointing to decisions from the First and Eleventh Circuit where the

[00:11:23] Speaker 04:
Identical statutory language from Title VII analyzed in Muldrow was applied to the ADA and certainly that's consistent with this Court's in-bank decision in XB Stolle finding the language in those two statutes to be identical.

[00:11:40] Speaker 04:
I'm turning quickly to the causation issue.

[00:11:43] Speaker 05:
Council, would you suggest that or would you argue that we have essentially just one combined

[00:11:53] Speaker 05:
adverse action here because we have the mandatory EAP referral.

[00:11:58] Speaker 05:
We have the FMR form, the release that was mandatory for her to sign or she would be discharged.

[00:12:06] Speaker 05:
And then we actually have her termination for not signing the release.

[00:12:13] Speaker 05:
How do you see those three different events as part of one combined adverse action?

[00:12:24] Speaker 04:
Our position is that the mandatory EAP referral in and of itself was an adverse action.

[00:12:29] Speaker 04:
That's the thing that the district court said was a close call under the pre-Muldrow significant change to employment status test.

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And then where we believe the district court erred, even under the existing state of the law, was in its analysis that when she declined to sign the FMR release,

[00:12:49] Speaker 04:
That broke the causal chain and relied on Jenkins for that proposition, that her refusal to sign was an independent cause of her termination.

[00:12:58] Speaker 04:
It was not.

[00:12:59] Speaker 04:
The causal chain began, she would not have been put in the position

[00:13:04] Speaker 04:
of having to sign a release that she was concerned and fridged upon her privacy if that was not, that condition of the release was a mandatory condition of the EAP referral, which was also mandatory.

[00:13:20] Speaker 04:
And so that choice would not have been put to her

[00:13:25] Speaker 04:
but for SCL deciding she needed to go to a mandatory e-counseling and that this release of medical information was attendant to that mandatory referral.

[00:13:35] Speaker 04:
And none of that would have happened but for SCL perceiving her as having a mental impairment, which it admits was a cause of its decision to

[00:13:46] Speaker 04:
require her to attend counseling.

[00:13:49] Speaker 04:
So the cause will change.

[00:13:50] Speaker 05:
Counsel, I need to interrupt you just to let you know there's one and a half minutes left, but I'll make it two whenever you just finish closing up your remarks, if you want to pass on back to your

[00:14:01] Speaker 05:
Back to plaintiff's counsel.

[00:14:03] Speaker 04:
I do.

[00:14:03] Speaker 04:
And let me just finish this thought.

[00:14:04] Speaker 04:
There's a causal chain which begins with her perceived disability continues directly through the EAP referral and release directly to her termination.

[00:14:16] Speaker 04:
In Jenkins, there was an unbroken causal chain there, too, from a dispute between coworkers to a mandatory EAP referral to termination.

[00:14:25] Speaker 04:
But a dispute between coworkers is not a trait protected by federal civil rights law.

[00:14:31] Speaker 04:
perceived disability is such a protected trait.

[00:14:34] Speaker 04:
And because the root of the causal chain here was Ms.

[00:14:37] Speaker 04:
Scheer's perceived disability, all of the adverse actions flowing from that root of the causal chain cause her regarded as claimed to survive summary judgment.

[00:14:50] Speaker 04:
The issue should have been presented to the jury, and that is the independent reason why the summary judgment should have been reversed, even separate from the Muldrow issue.

[00:14:59] Speaker 04:
Thank you, Your Honor.

[00:15:24] Speaker 02:
Morning, Your Honors, and may it please the Court.

[00:15:26] Speaker 02:
My name is David Gartenberg for SCL Health.

[00:15:28] Speaker 02:
With me is Kelsey Van Overloop, who's on the briefs.

[00:15:31] Speaker 02:
While I might touch on some other issues in the case, I'd like to focus on the question of whether Ms.

[00:15:36] Speaker 02:
Shear faced an adverse employment action here, including under the Supreme Court's test in Muldrow, which was issued after the District Court's opinion awarding SCL Summary Judgment.

[00:15:49] Speaker 02:
I think that there are three possible adverse actions at issue here.

[00:15:53] Speaker 02:
And I'd like to address each one of them for you today.

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The first is the mandatory nature or the required nature of the EAP referral itself.

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The second is the release of information contained in the FMR form.

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And the third is what Ms.

[00:16:10] Speaker 02:
Gilbride's closing comments related to is on the termination of employment itself.

[00:16:15] Speaker 02:
There's no question a termination of employment is an adverse employment action.

[00:16:19] Speaker 02:
I think there's a large question about whether the first two categories are.

[00:16:22] Speaker 02:
The district court held that none of these are adverse employment actions, but it did apply the significance test that was abrogated in Muldrow.

[00:16:33] Speaker 02:
But we still have a test to apply.

[00:16:35] Speaker 02:
What Muldrow stood for is that an employee on an employment discrimination theory needs to show some sort of harm, something that left the employee worse off than they had been otherwise.

[00:16:47] Speaker 02:
And the issue for Scheer is that even under this test,

[00:16:50] Speaker 02:
She has no evidence of a harm that she faced by any of these adverse actions because of her disability.

[00:16:57] Speaker 05:
Being sent by your employer to mandatory counseling, being told that you must sign a release, forced to sign a release to reveal if you go to that counseling and whether you go to your treatment, any follow-up appointments that are scheduled for treatment,

[00:17:18] Speaker 05:
or you will be terminated under threat of termination is not adverse under the modified Moldrow test, basically some harm or, I mean, I struggle to understand your argument on that.

[00:17:39] Speaker 05:
Maybe you could explain.

[00:17:40] Speaker 02:
Sure.

[00:17:41] Speaker 02:
So my argument arises both under the law and under the facts of this case, as borne out by the record.

[00:17:48] Speaker 02:
Muldrow or Justice Alito in his concurring opinion in Muldrow made clear that not everything that an employee disagrees with or doesn't want to do is necessarily an adverse employment action.

[00:18:01] Speaker 05:
Certainly, but why isn't this an adverse employment action?

[00:18:08] Speaker 05:
I'm not suggesting that every case will result in

[00:18:12] Speaker 05:
in a finding of an adverse action, that's not at all what I'm saying.

[00:18:15] Speaker 05:
And I don't think that's what the Supreme Court intended in Mulder out.

[00:18:19] Speaker 02:
For a few reasons.

[00:18:21] Speaker 02:
The first is nothing about the mandatory referral impacted the terms and conditions of her employment.

[00:18:28] Speaker 02:
The referral was free.

[00:18:31] Speaker 02:
The referral was

[00:18:32] Speaker 02:
completely confidential with the exception of the very limited information that was going to be released to the... She was forced to go or be terminated.

[00:18:40] Speaker 05:
I don't know how you can suggest that didn't impact the terms and conditions of her employment.

[00:18:47] Speaker 02:
So let me spend a moment responding to that directly and then talking about the facts in the record because I think that those are significant and it's a piece of what the district court's opinion was premised on as well.

[00:18:59] Speaker 02:
Let's say instead of mandatory

[00:19:02] Speaker 02:
counseling, we call this coaching, which is something that happens all the time.

[00:19:06] Speaker 02:
An employee has bullying behavior at the workplace, is upsetting other people, is exploding.

[00:19:14] Speaker 02:
The employer says, you need to go to meet with a coach.

[00:19:19] Speaker 02:
You need to meet with a counselor to address this sort of behavior.

[00:19:22] Speaker 02:
This behavior is causing disruption.

[00:19:24] Speaker 02:
It's impacting your performance and the performance of others.

[00:19:28] Speaker 02:
The employee might say, I'm fine.

[00:19:30] Speaker 02:
I don't think I need this coaching.

[00:19:32] Speaker 02:
I don't want to go to this.

[00:19:33] Speaker 02:
This is a pain.

[00:19:34] Speaker 02:
That doesn't mean that it's an adverse employment action at all.

[00:19:39] Speaker 02:
And the cases that are cited in our briefing, Nazir, Weaver, Waters, they're all pre-moderal cases, but they don't turn on whether the action was significant.

[00:19:48] Speaker 02:
They just say that this type of referral is not an adverse action at all.

[00:19:53] Speaker 02:
And this isn't in the briefing.

[00:19:55] Speaker 02:
We were thinking in preparing for the oral argument about what about mandatory training?

[00:20:00] Speaker 02:
Exclusion from training can be an adverse employment action.

[00:20:03] Speaker 05:
Of course, we're not talking about training.

[00:20:05] Speaker 05:
We're not talking about a weekly meeting.

[00:20:08] Speaker 05:
We're talking about personal therapy, personal counseling.

[00:20:14] Speaker 05:
And we're talking about a threat of discharge if you don't release that information about your personal medical

[00:20:25] Speaker 05:
About the counseling.

[00:20:27] Speaker 05:
And why isn't that private?

[00:20:30] Speaker 05:
Whether you go to or attend counseling, whether once you have a treatment plan you partake in that plan, why isn't that?

[00:20:41] Speaker 02:
So that was the only information that was going to be released.

[00:20:43] Speaker 02:
It's basically yes or no is the person attending their appointments and yes or no are they adhering to the plan.

[00:20:49] Speaker 02:
No other information was going to be released.

[00:20:52] Speaker 02:
That's clear in the record, page 810.

[00:20:54] Speaker 02:
of the record there.

[00:20:55] Speaker 02:
So I do think that's clear, because we would be in a different land if the employer was getting information about what her diagnosis was, what the treatment plan actually was.

[00:21:05] Speaker 02:
That would bring us into 12112D of the ADA, which relates to medical examinations.

[00:21:12] Speaker 02:
Ms.

[00:21:12] Speaker 02:
Shear has been clear that she does not have a medical examination claim here.

[00:21:16] Speaker 02:
But I do want to focus on what the record actually says, right?

[00:21:21] Speaker 02:
The mandatory referral was contained in a performance improvement plan that Ms.

[00:21:25] Speaker 02:
Shear signed.

[00:21:27] Speaker 02:
She agreed to go to the mandatory EAP in that form.

[00:21:31] Speaker 02:
She also alleges in her complaint that she was not opposed to seeing someone to be evaluated.

[00:21:37] Speaker 05:
She says in her deposition... She never said she was... That's totally different to say you're not opposed to seeing someone on your own for whatever purpose.

[00:21:49] Speaker 05:
is totally different than being mandated by your employer under threat of termination, isn't it?

[00:21:54] Speaker 02:
I don't think it is.

[00:21:57] Speaker 02:
If the test is you need to show some harm.

[00:22:01] Speaker 02:
Where is the harm if the employee says, I agree with you that I need to see somebody.

[00:22:06] Speaker 02:
I don't like that you're telling me I need to, but I agree that I need to see somebody.

[00:22:09] Speaker 02:
And she's very clear about that.

[00:22:11] Speaker 02:
She says in the deposition, I was saying I'm not opposed to seeing somebody at the EAP.

[00:22:15] Speaker 02:
I did not agree with what was in the form.

[00:22:17] Speaker 02:
So her gripe here is very limited.

[00:22:19] Speaker 02:
That's what the record supports, that it was with the form itself, not with the concept of going to the EAP.

[00:22:25] Speaker 02:
And here's the real kicker, which the district court focused on in its opinion, is after all, her employment does end.

[00:22:32] Speaker 02:
And what does she do?

[00:22:33] Speaker 02:
That very same day, she goes to the EAP and she continues treatment with the EAP on her own accord.

[00:22:40] Speaker 02:
You're right.

[00:22:40] Speaker 02:
She wasn't doing it voluntarily.

[00:22:42] Speaker 02:
So that's the only distinction.

[00:22:43] Speaker 02:
But if the test here is some harm, the test isn't whether something is voluntary or involuntary or acquired or forced.

[00:22:51] Speaker 02:
The test was their harm in the record.

[00:22:54] Speaker 02:
Now, one thing that the court might be thinking about is the district court did, after all, apply a test that was abrogated under Muldrow.

[00:23:03] Speaker 02:
They have this significant test.

[00:23:04] Speaker 02:
Why don't we just remand back to the court in these circumstances since the wrong test was applied?

[00:23:10] Speaker 02:
Well, there's a number of reasons for that, number one.

[00:23:13] Speaker 02:
as was addressed in the prior oral argument, is that we can affirm on any basis that's in the record.

[00:23:19] Speaker 02:
But number two is, there have been a number of cases since Muldrow, circuit court cases, that have been faced with the exact same issue that this court is faced with.

[00:23:30] Speaker 02:
The district court applied the wrong or the abrogated adverse action standard.

[00:23:36] Speaker 02:
And the court instead of remanding, or the courts instead of remanding,

[00:23:40] Speaker 02:
still looks at the facts in the record and makes an analysis of whether there's some harm.

[00:23:46] Speaker 02:
The one that's cited in our brief is Phillips versus Baxter, which I think is an important case.

[00:23:52] Speaker 02:
It was a reassignment case, similar to the facts of Muldrow, which was a transfer case.

[00:23:57] Speaker 02:
In that case, the employee argued that the district court wrongly decided there hadn't been an adverse action under the facts of that case.

[00:24:06] Speaker 02:
And the facts of that case were,

[00:24:07] Speaker 02:
The employee was reassigned to a different office on a different floor, but in the same building There were some computer issues that the employee claimed was an adverse employment action And the court said sure the district court applied the pre-module standard, but there's still no harm here Yeah, I think we can distinguish being reassigned to a different office from being sent to mandatory counseling under threat of termination for

[00:24:35] Speaker 05:
being apparently suicidal or in comments to colleagues, they believe that she might be suicidal, not a work-related matter.

[00:24:48] Speaker 05:
I think there's a distinction there, don't you?

[00:24:50] Speaker 02:
I would agree that there's a distinction there.

[00:24:53] Speaker 02:
The point that I was making, though, is that we don't need to remand simply because the district court applied the pre-Muldrow standard.

[00:25:01] Speaker 02:
and other circuit courts have held the same.

[00:25:04] Speaker 02:
These weren't in our briefing.

[00:25:06] Speaker 02:
One is a very recent decision.

[00:25:07] Speaker 02:
The 11th Circuit in Lukey versus MetLife was faced with the exact same situation, and another is the Sixth Circuit in Blick versus Ann Arbor Public School District.

[00:25:17] Speaker 02:
These are all cases.

[00:25:18] Speaker 05:
Can you file a 28-J letter?

[00:25:19] Speaker 02:
We absolutely can, thank you, Your Honor.

[00:25:25] Speaker 02:
I think I'd close or spend the remaining portion of my time addressing two other issues.

[00:25:31] Speaker 02:
Number one is the termination itself, is whether the termination was an adverse employment action.

[00:25:38] Speaker 02:
Now, this question doesn't implicate Mulder at all, because it turns on just whether the termination was because of the disability or because of being perceived as being disabled.

[00:25:52] Speaker 02:
And I don't think that there is sufficient evidence in the record or argument before the court

[00:25:57] Speaker 02:
for the court to conclude that summary judgment was improperly awarded to SCL on this basis.

[00:26:02] Speaker 02:
There's no question, and there's, in fact, record evidence directly contradicting it from everybody, from all of the decision makers and Ms.

[00:26:09] Speaker 02:
Shear herself, that her employment wouldn't have ended had she complied with the terms of the PIP.

[00:26:15] Speaker 02:
There was no discussion about her employment ending.

[00:26:18] Speaker 02:
The only reason that her employment ended is because although she signed the PIP, she then said, I'm not going to sign the authorization form.

[00:26:25] Speaker 02:
So that is an intervening cause here.

[00:26:29] Speaker 02:
And there's case law holding exactly this in the exact same circumstance.

[00:26:33] Speaker 02:
There's Patton versus Ingalls, which is a Southern District of Mississippi case.

[00:26:38] Speaker 02:
There was another case that actually is, I think, the closest factually to what we're dealing with here, which is the Eustis case from the Southern District of New York.

[00:26:47] Speaker 02:
The reason I say it's the closest factually is because in that case, the employee agreed to go to the EAP but refused to sign the form.

[00:26:55] Speaker 02:
This is a pretty nuanced situation, but it's the same one that we're dealing with here.

[00:26:59] Speaker 02:
In all of these cases, the court said that's insubordination.

[00:27:04] Speaker 02:
That is an adverse action because termination is one of the quintessential adverse actions, but it's not termination or an adverse action because of the disability.

[00:27:15] Speaker 02:
The district court agreed with that formulation, and nothing in Muldrow disturbs it.

[00:27:22] Speaker 02:
Now, here's the last point, which Judge Murphy was focused on in his questions, which is, even if you disagree, even if you held that the mandatory referral in this circumstance under this record was an adverse employment action, I don't think you should, but even if you did, all that we have there is a prima facie case of disability discrimination under the McDonnell Douglas

[00:27:49] Speaker 02:
There is no evidence, no direct evidence of discriminatory animus here.

[00:27:57] Speaker 02:
Even the PIP itself doesn't say, we're sending you to this mandatory EAP referral because we think you have a disability.

[00:28:07] Speaker 02:
It cites behavioral concerns and the impact that her conduct was having on herself and on others.

[00:28:13] Speaker 02:
That's not direct evidence.

[00:28:14] Speaker 02:
That's indirect evidence.

[00:28:16] Speaker 02:
Indirect evidence means that

[00:28:17] Speaker 02:
we apply the test.

[00:28:18] Speaker 02:
And the second step of the test is whether there is a legitimate nondiscriminatory reason for the adverse employment action.

[00:28:25] Speaker 02:
We certainly can meet that test here.

[00:28:27] Speaker 02:
The termination, as we just established, was motivated by her not signing this mandatory form, which was a term and condition of her employment.

[00:28:38] Speaker 02:
Can easily make that show.

[00:28:39] Speaker 02:
And then the last part is, is there evidence of pretext?

[00:28:42] Speaker 02:
And as you just heard from my colleague, we're not even arguing pretext here.

[00:28:46] Speaker 02:
But there's a piece of pretext that I think is important for the court to know that goes directly to the merits here, which is this mandatory referral form is not something that SCL only utilized in this form of situation where somebody is potentially thought to be in distress.

[00:29:10] Speaker 02:
The example that I talked about at the beginning of somebody who has an anger management problem

[00:29:14] Speaker 02:
bullying behavior.

[00:29:16] Speaker 02:
Just months before Ms.

[00:29:18] Speaker 02:
Shear was told that she needed, as a term and condition of her employment, to go to the EAP, SCL did the same thing with another employee, an employee who had that type of behavior, who was bullying.

[00:29:29] Speaker 02:
That employee went to the EAP and signed the exact same form that Ms.

[00:29:35] Speaker 02:
Shear was asked to sign, and his employment continued on unabated.

[00:29:39] Speaker 02:
So there is certainly no evidence of pretext here under the record, and that is an independent basis on which this Court can affirm summary judgment.

[00:29:49] Speaker 02:
Thank you, Your Honor.

[00:29:52] Speaker 05:
Thank you, Council.

[00:29:54] Speaker 05:
Rebuttal?

[00:29:55] Speaker 05:
Go ahead and add two minutes.

[00:30:00] Speaker 01:
Your honor, in response to Mr. Gartenberg's contention that Ms.

[00:30:05] Speaker 01:
Scheer wasn't worse off, she was labeled.

[00:30:08] Speaker 01:
She was labeled as suicidal.

[00:30:11] Speaker 01:
And we all understand in today's world that being labeled, when it's something that's not true, has its own price.

[00:30:22] Speaker 01:
There's a loss of autonomy.

[00:30:24] Speaker 01:
Every adult makes decisions about personal issues.

[00:30:29] Speaker 01:
And Ms.

[00:30:29] Speaker 01:
Scheer's ability to exercise autonomy over her own personal issues was being stepped upon by her employer.

[00:30:37] Speaker 01:
And that is paternalism writ large.

[00:30:43] Speaker 01:
There are some record items I want to point out to the court in my remaining time.

[00:30:47] Speaker 05:
Can you address his final points first, that it doesn't really matter what we do on this, that there's no direct evidence and that you're not claiming pretext?

[00:30:58] Speaker 01:
Your Honor, it would be against all of the courts of appeal that have dealt with safety related issues.

[00:31:04] Speaker 01:
And in fact, that was the point I was going to make, is that the PIP talks about what Ms.

[00:31:11] Speaker 01:
Scheer was being accused of.

[00:31:13] Speaker 01:
Talked of suicide to multiple members of the team raising concerns for her safety.

[00:31:19] Speaker 01:
There's nothing in the PIP about her being a disruptive force.

[00:31:24] Speaker 01:
So from the perspective of

[00:31:26] Speaker 01:
The employer sent her to the EAP over these allegations of suicide.

[00:31:32] Speaker 01:
That's the safety situation that Judge Costa mentioned in the null versus BNSF.

[00:31:38] Speaker 01:
And my last point is that paragraph 77 and 80 in the fact section of my brief set forth very specifically that SCL was going to control her treatment.

[00:31:49] Speaker 01:
Thank you.

[00:31:50] Speaker 05:
Thank you, counsel.

[00:31:51] Speaker 05:
Thanks to all three of our counsel today.

[00:31:54] Speaker 05:
We appreciate your arguments, and they've been very helpful.

[00:31:58] Speaker 05:
The case will be submitted, and counsel are excused.

[00:32:01] Speaker 05:
We will take a 10 minute break.

[00:32:05] Speaker 05:
We'll come back about 5 till 11.