All right, Mr. Cocky. Thank you. Sir. I am pleased the court. This case arose from the decision of the District Court granting summary judgment at the clothes of discovery in favor of defendant on all claims. The case had arisen under the ADA in the federal rehab act. The nutshell, the plaintiff who was the senior faculty member at the University of Barlett-Eastern Shore alleged that the university improperly perceived him as disabled and on the strength of that bogus perception required him to submit to an unwarranted fitness for duty evaluation that was not supported by a legitimate business interest. And when Professor Corsi filed a complaint with the EEOC, pardon me, three months after the University learned of the complaint, they brought charges of termination. The complaint was objectively reasonable and we contend therefore that the ensuing action was retaliatory. The case arose somewhat unusually not from charges of removal in the figurative sense of taking somebody out of the job, but literally with a knock on his door, what he opened it, there was a uniform guard who told him that he was being physically removed from campus. And he was pursuant to a letter from the University's vice president alluding to unidentified issues about inappropriate behavior in the classroom and directing Professor Corsi to stay away from campus until further orders. That was in February of 2009. May 26th of that year, the faculty committee who hears grievances issued an opinion that he had been improperly removed and should be reinstated. That recommendation went to the president who did nothing for about six weeks and then in June of that year wrote Dr. Corsi saying, you know what, we're just about at the end of the semester so I'm just going to defer acting on their recommendation that you be reinstated. But meanwhile, I'm going to adopt their recommendation that you submit to a fitness for duty evaluation, a psychological slash medical fitness for duty evaluation. That prompted a letter from the chair of the committee who said respectfully, Madam President, we made no such recommendation. The president ignored the letter and during the next five or six months there were a number of requests through her, through her counsel that Professor Corsi submitted to an examination. He took the position that it was unwarranted and that it frankly was disrespectful and he did not comply. He filed the notice of charge with the EEOC in October of 2009 on February 3, 2009. And this appears at page 373 of the record. On February 3, 2010, forgive me. The university received a copy of his EEOC complaint and they received it from the EEOC or the Toronto. That is right. EEOC Senator
. Precisely. The university said, let's go through mediation. There was a mediation on February 17. It was not successful. On May 26, they brought charges of termination. Professor Corsi maintained that he was not guilty of termedable misconduct or of incompetence or any of the other bases asserted for the termination. He took agreements that came before the grievance committee during the grievance committee proceedings, counsel for the university introduced into evidence a copy of his EEOC complaint and explained to the committee that the case only went forward because Professor Corsi had failed to settle through the EEOC mediation. Ultimately, that committee disagreed with the first committee and found that although Professor Corsi had had a long and in many ways distinguished career with the university, that the allegations of incompetence and misconduct which primarily centered around grades and disagreements about grades and classroom issues were well found. You said he was going to give a good grade to that late or something, right? That was the contential serve. And fairness to his accusers, Professor Corsi was the athletic director. He was the chair of the physical exercise department. He was the dean of that school and he certainly was invested in athletics, but his position was that he did not give undue preference to athletes. In any event, the termination stuck. Here we are. What was the pertinency of the purpose of introduction of the EEOC complaint against him before the grievance board? Well, you're on our main ten. What was the explanation for? On the court of the record. Right. The record, the explanation was that there was no explanation. It was just here's what Corsi did. What, he just laid on the table? He's entered it into evidence as an exhibit, sir. It appears at pages 372 through 375 of the record. It was in my experience, bizarre. The attorney for the university introduced it formally as an exhibit. It was received. Well, the university attorney said why it was, what its relevancy was
. The explanation for a following an EEOC complaint. The only, not that I can tell sir, the only explanation that I perceive is that she wanted the committee to know that he had then participated in mediation, which did not result in his agreement to settle the claim. And that here we are. He wouldn't settle, to speak with us. So here we are, implying that it was his own fault. The school's position though is that his erratic behavior gave them a business reason to have him evaluated, an evaluation that he refused to take when he was told to do that. And their position is that even if you get to the point, the question of whether or not is a district courtman, as to the EEOC complaint, there is still plenty in the record to show that there was a business reason for this termination. Well, actually, respectfully your honor, that isn't quite their position as I understand it. Their position was, look, this is what the committee recommended, so we're sending you for an evaluation. The letter from the president appears in the record at page 321, it's cryptic. It takes the position that she is simply following their recommendation. And she persisted in that position, even after she was told by the committee that they did make that recommendation. In your position though, is that anytime somebody wants to check to see if something's wrong with somebody, they have perceived them as having something wrong with them or they're now suddenly perceived as disabled. I respectfully, Your Honor, I don't believe that as a correct assessment of the law on this point. No, but I'm saying what you're saying is that he was one of your arguments is that the university perceived him as having a disability. Right, and I'm contending, Your Honor, that the point you've identified is part of the body of evidence supporting that conclusion. The draconian way in which the university dealt with this gentleman escorting him off campus with a uniform gone. Is that really, does that really have something to do with it? I think it does, Your Honor. He was presented with a letter saying, you've engaged in inappropriate behavior in the classroom and we're having an investigated. Meanwhile, you are to leave the campus physically. Well, Shucks, I mean, the guy had been a professor for 38 years. If you didn't at this point as a tenured full professor who had been the dean, know how to conduct himself in the classroom, there were an issue. Presumably, they would have sat down with him and talked about it. And the fact that instead they had him physically escorted off campus and directed to stay away until further notice suggests that they perceived him as unstable, not simply as acting a little inappropriately. That overkill coupled with a clearly disingenuous requirement that he submit to a fitness for duty evaluation suggests that they are at least professing to regard him as disabled
. The law as I understand it requires that the fitness for duty requirement be based upon a reasonable belief arising from objective evidence. And I have scoured the record in this case of live through it. And there is not one, what's the word, centella that would support the conclusion, the objectively reasonable conclusion that he ever threatened anybody that he ever engaged in conduct which he reasonably, that are an objectively reasonable person would regard as threatening or intimidating. The worst that could be said is that he raised his voice on occasions. Let me interrupt you certainly. Certainly. Based on Judge Cogwin's question, which I was going to ask myself as a matter of fact, maybe great minds think a lot or not. You may be insulted. I'm having trouble understanding where the line is that you're drawing because as I understood your answer to Judge Cogwin's question, you would agree that simply asking that someone have a mental evaluation does not automatically mean they are regarded as rice able. You have to look at the circumstances. There's got to be, forgive me or other. More? Yes, be more than that. And you say that the more than that is the fact was a manner which he was escorted off campus. And the president that shows he is regarded as disabled. Under the circumstances where they gave him a letter saying you've engaged in an inappropriate behavior in the classroom, which would, to my mind, suggest a 15 minute conference about, you need to be a little more sensitive. Instead, it was coupled with his being frog marched off campus. That fact, coupled with the disingenuous predicate for the request, the request has to be genuine. It has to be based on a reasonable belief arising from objective evidence. So if here, all right, if the reason is false, what is do you contend is the real reason? I think they wanted to get rid of him. He's a very expensive guy. I just wanted to get rid of him. Right. But they had to have some reason for just wanting to get rid of him. Right. What is that? He's a tender professor
. My position that that's improper, but my position today in terms of the analysis under these ADA and rehab concepts is that it's pretestual. They don't have a legitimate non-retellent or a non-discrimination. It's pretex for what? Pardon me? It's pretex for what? What do you contend is the real reason that they want to get rid of? I don't really make it contentious because I don't really know. You don't know why they wanted to get rid of him, but it was not this. Is that what you're saying? Clearly. I don't think. I don't think. You think they wanted to get rid of him because he filed an EOT complaint? I think that. Well, they started it before he filed it. Well, all that they started before he filed it was physically removing him from campus. They pursued these removal charges on the theory. They wanted to get him out. And the committee came back and said, well, it's not right. There's really no basis for it. And they said, well, we're going to defer acting on the committee recommendation and see what happens. And they never acted upon it. He was sort of in limbo, pending whatever action the president ultimately was going. To take in the action that she ultimately took was to fire him, but that didn't actually proceed until she got noticed that he had filed an EOT complaint. Is that, well, that's really the basis what you are here on. The fact that they used the EOT complaint against him? That's a big part of it. That's a big part of it. Yes, sir. It is. Well, I had this tongue in the ear of me at half. Well, I don't know exactly when it happened, but I clearly didn't
. It was being escorted off the campus. Well, they didn't even know about it until shortly before the hearing concluded. And the law is that, you know, they have to base their fitness for duty request upon information known at the time, obviously. But I guess my point really is in evaluating the propriety of that request. You look at the information known to them at the time. Their position was, well, the reason we're bringing it this up in the last minutes because we only just found out about it. Okay. He denies it. The witness maintains that it happened. The committee said, well, we think she's credible. And that's where the matter rested in terms of the burdens of proof. But in terms of the analysis of a fitness for duty evaluation, I would admit to you that is eccentric behavior, but it's undispeeded that they knew nothing of it at the time. They requested the fitness for duty evaluation. So it can't factor into our analysis of the reasonableness of that request. So at bottom, our contention is that their conduct, beginning with his removal, reflected at least a professed perception of him as not merely incompetent or acting improperly. But as erratic as eccentric as unstable, requiring physical removal, which happened, they submitted him to what is clearly a disingenuous strategic request that he undergo in evaluation. And then when he complained about it, and I think his complaint was objectively reasonable, which is the standard, within three months, they had initiated his termination, something which had been on hold forever. So, and in a nutshell, that's our case, Your Honor. And if there are no questions, I'll retire. Will you guys revime remaining for a fly? Do we hear from the speakers? Yes. Good morning, ma'am. Please the court. The district court properly granted the university's motion for summary judgment based on the undisputed evidence in the record. Importantly, Dr. Corsi does not dispute the conduct that is an issue in this case
. And I just like to give a little bit of the timeline of what happened, because I think opposing counsel left out some important facts that led up to his removal on the request for a fitness evaluation. And that was that in late December 2008, early January 2009, a dozen students brought complaints about Dr. Corsi's teaching and erratic grading, arbitrary grading issues, the fact that he wouldn't speak to them about it, that they weren't getting work returned, that the grading was seem to be arbitrary. They brought that to the attention of Dr. Heimdall, who was the chair of the department. And then in mid-January of 2009, Dr. Heimdall emailed Dr. Corsi and said, here are these complaints that we've had about you. I would like to discuss them with you. Dr. Corsi refused to discuss those complaints. And instead, again, in late January of 2009, on the first day of class of the spring semester, he screamed at his class. He retaliated against them for complaining about him, told them they couldn't complain about him, because he was the senior faculty member on staff, and therefore he was untouchable by the university. And three faculty members heard him screaming at his class. And one student in the class went and reported to Dr. Heimdall that she was terrified of Dr. Corsi, and that she was considering switching majors and possibly leaving the school. It was only after that undisputed misconduct. Several days later, Dr. Corsi was removed from the university and suspended from his duties. And certainly, a university has a right and indeed an obligation to protect its students' safety and the safety members of the community by removing somebody who was engaged in threatening conduct. So that is why he was removed from campus, not simply because students had complained, but because he had retaliated against those students in a threatening way. And then Dr. Blanchard, the dean of the school, in which Dr. Corsi taught, was charged with investigating the incident
. And in late February 2009, after interviewing Dr. Corsi, Dr. Blanchard reports that his speech is incoherent, that he seems to be living in some sort of different reality, and that he would not surprise why people are afraid of him. Also during this time, Dr. Corsi is exercising his right under the grievance policy to go before grievance board. And that board does not absolve him of misconduct. Rather, they find that the university didn't comply with all of its policies and procedures. And one thing that they note in their report was they have a question, was Dr. Corsi given any prescribed examination to confirm the need for removing him? So this is all objective evidence that the university president, Dr. Thompson, had before her when she made the request that Dr. Corsi undergo a mental, in her first letter, it says medical slash mental health evaluation in subsequent letters to Dr. Corsi when he when he resists. It's limited to a mental health evaluation. They list the name of a mental health provider that they want him to get in touch with in schedule and appointment with. And she was certainly that that objective evidence certainly gives rise to a reasonable assumption that or belief that this person is not capable of performing the essential functions of his job. And therefore, a fitness for duty evaluation is warranted. And it's an objective test. So really, we don't look into, courts don't look into the subjective reasons why an employer took that action. It's really based on all of the objective evidence and what did it, was it reasonable. And certainly, when you have a professor screaming at his students threatening him that they threatening them that they are not allowed to complain about him that he's untouchable, that the dean of his school reports that he seems to be out of touch with reality. This all gives rise to a reasonable belief that he is not able to perform the essential functions of his job, one of which at any university is the district court found would have to be providing a safe academic environment for students. It was a really a count, really an attorney for the university that thought it was a good idea to put the EEOC complaint into evidence. Apparently, I would just like to point out that it's- Apparently what? I'm answering Judge Coggren's question. No, but it was for- It's true that a lawyer for the university admitted into evidence to the termination board. So this termination board was convened after the president had already decided to terminate Dr
. Corsi. This was a grievance procedure. So the EEOC complaint, there's no evidence in the joint appendix that Dr. Thompson, President Thompson, when she approved the charges for termination, that she was presented with this. From the first instance, why was it introduced? What's the gentleman raising their belief or introduce? The only one reason that I could discern from the record from the joint appendix is that on a joint appendix 370 at the beginning of this hearing. I'm not sure if it's Dr. Corsi or if it's Council for Dr. Corsi says, now the guy who's been here longest at your academic community on these grounds with no attempt at remediation, no attempt at conflict resolution, no attempt of anything other than dragging him off campus and admitting him only for the limited purpose of being fired. And it could be that that sort of opened the door to, well actually we did attempt to mediate with him as part of his EEOC proceedings, but that was fruitless. And so we did attempt to have some sort of mediation with Dr. Corsi. So that would be certainly one reason for introducing the fact that they had had mediation based or during the EEO proceedings. That would be why I guess a legitimate reason for admitting that into evidence. I said that that could be a legitimate reason. Yes, that would be an example. It's not articulated in the joint appendix. It's not articulated at the hearing. It doesn't appear to have been articulated at the hearing as to why. If that was the reason, but just based on an objective reading of the record, I think that makes it legitimate. He raised this issue that the university had failed to attempt any remediation or conflict resolution with him and they had. The university had, but the EEOC complaint was his complaint, not the universities. I mean, it shows that he was filing a complaint. A misconduct or inappropriate handling by the university. He was complaining against the university. Well, that's true
. I got to show that the university was trying to mediate or something. What would they do? He was filing a complaint against the university with EEOC. Of course. In the federal law, you can't retaliate against somebody for an EEOC complaint. But you can mediate with the person as part of the EEOC. That's the reason you're being receding. That's the reason you're being receding. I'm sorry. It shows something about mediation. The EEOC complaint. It shows something about mediation. No, but the mediation arose during the EEOC proceedings. And I think that was a legitimate reason for introducing that would be that we know, look, we did attempt to mediate with it. We did attempt some... Well, sure, that was your explanation or there's no explanation. That that shouldn't have been done. That what you got is it was erroneously used against him. Or do you fall back on some kind of harmless air doctrine? Well, first of all, just to... I just want to be clear, that the employer, the person who made the decision to terminate Dr. Percy, Dr. Thompson
. That happened before this grievance board was convened. So she... There's no evidence in the joy and appendix that she was considering the EEOC complaint when she... You're talking about she is Dr. Thompson. Dr. President. The president. Exactly. She made the final decision. She makes the final decision. He does get a grievance procedure. And at that grievance procedure is when the EEOC complaint was admitted into evidence. And the grievance board said where he should be terminated for his misconduct. Correct. And they didn't say... Didn't mention the EEOC complaint. Absolutely, Judge King and... So, in the fair reading that the part of the misconduct was filed on the EEOC complaint? No. Well, they didn't say one way or another. They didn't exclude it. And they offered it in evidence. They put it in evidence. They didn't exclude it, but they... And that was part of the effort. Judge King, that board did articulate in great detail all of the reasons for that they found that they had to uphold the termination. And these included things like that he stuck his tongue in a colleague's ear, that he... That lack of collegiality, a pattern of disrespectful interactions with supervisors being verbally abusive towards students. All that is the misconduct that you're aiming at. But that is in a... In a... The Supreme Court recently held it in a retaliation case. There's no mixed mode of retaliation. So, you have to show that the retaliation was a but-for-cause of the adverse employment action
.. So, in the fair reading that the part of the misconduct was filed on the EEOC complaint? No. Well, they didn't say one way or another. They didn't exclude it. And they offered it in evidence. They put it in evidence. They didn't exclude it, but they... And that was part of the effort. Judge King, that board did articulate in great detail all of the reasons for that they found that they had to uphold the termination. And these included things like that he stuck his tongue in a colleague's ear, that he... That lack of collegiality, a pattern of disrespectful interactions with supervisors being verbally abusive towards students. All that is the misconduct that you're aiming at. But that is in a... In a... The Supreme Court recently held it in a retaliation case. There's no mixed mode of retaliation. So, you have to show that the retaliation was a but-for-cause of the adverse employment action. I mean, a but-yeah, a but-for-cause of the termination. And here, he can't do that. Because there are all of these legitimate, non-discriminatory reasons for terminating him. That was... Those were the but-for-cause of the termination. Those were the charges that were filed for his termination. I believe it was Dr. Williams, the Vice President of Academic Affairs. Those were the charges you filed. Those were the charges that President Thompson accepted and initiated his termination. So, at that point in time, when the university actually makes the decision to terminate him, that the EEOC complaint is not in the record, is not being considered. There's no evidence that they were considering the EEOC complaint. The evidence is only that they were considering the litany of misconduct. That's what the hearing was about. And that's what the hearing was about. Then when they had the hearing, they presented into evidence the EEOC complaint. Tric. Support their position that he and Dundee's think. It's not. Presumably, they disoffered it. Well, it's not..
. I mean, a but-yeah, a but-for-cause of the termination. And here, he can't do that. Because there are all of these legitimate, non-discriminatory reasons for terminating him. That was... Those were the but-for-cause of the termination. Those were the charges that were filed for his termination. I believe it was Dr. Williams, the Vice President of Academic Affairs. Those were the charges you filed. Those were the charges that President Thompson accepted and initiated his termination. So, at that point in time, when the university actually makes the decision to terminate him, that the EEOC complaint is not in the record, is not being considered. There's no evidence that they were considering the EEOC complaint. The evidence is only that they were considering the litany of misconduct. That's what the hearing was about. And that's what the hearing was about. Then when they had the hearing, they presented into evidence the EEOC complaint. Tric. Support their position that he and Dundee's think. It's not. Presumably, they disoffered it. Well, it's not... I don't think we can presume that they used it to support... They didn't limit it to you. They didn't limit it to you. What minute is on the limited purpose? Well, there's no explanation. What were you... I mean, certainly, in a retaliation context, the assumption is that the employer knows that the employee has complained. So, it's not a secret. It's not something that the employer doesn't already know about. In every retaliation case, the employer has in his or her mind or in its mind that some complaint has been filed. At least that has to be the allegation for any retaliation complained to go forward. So, there's really no... There's no authority. I didn't cite any cases or any authority that that can't be in the mind of the decision-maker when they decide to terminate an employee who is engaged in a litany of misconduct, including threatening students for complaining about him, for retaliating against students, ironically. Really, what you can't do though is you can't defend that being put into evidence of that. Here, what you're saying is that there's not about four with regard to that. There's not a... There's not a
. I don't think we can presume that they used it to support... They didn't limit it to you. They didn't limit it to you. What minute is on the limited purpose? Well, there's no explanation. What were you... I mean, certainly, in a retaliation context, the assumption is that the employer knows that the employee has complained. So, it's not a secret. It's not something that the employer doesn't already know about. In every retaliation case, the employer has in his or her mind or in its mind that some complaint has been filed. At least that has to be the allegation for any retaliation complained to go forward. So, there's really no... There's no authority. I didn't cite any cases or any authority that that can't be in the mind of the decision-maker when they decide to terminate an employee who is engaged in a litany of misconduct, including threatening students for complaining about him, for retaliating against students, ironically. Really, what you can't do though is you can't defend that being put into evidence of that. Here, what you're saying is that there's not about four with regard to that. There's not a... There's not a... They were going to terminate him anyway for the other conduct, and the inclusion of this had nothing really... Would have not... Didn't change anything about what the university was doing. It didn't change anything. Exactly, Your Honor. It didn't change anything about what the university was doing. The charges that were brought against him in writing didn't mention the EEOC complaint. President Thompson's letter accepting those charges and initiating the termination didn't mention the EEOC complaint. It's only after that when Dr. Corsi brings agreements. And again, in their... In their... Whitney, of findings of misconduct, professional misconduct, and confidence in subordination, they don't mention that. Do you really.
... They were going to terminate him anyway for the other conduct, and the inclusion of this had nothing really... Would have not... Didn't change anything about what the university was doing. It didn't change anything. Exactly, Your Honor. It didn't change anything about what the university was doing. The charges that were brought against him in writing didn't mention the EEOC complaint. President Thompson's letter accepting those charges and initiating the termination didn't mention the EEOC complaint. It's only after that when Dr. Corsi brings agreements. And again, in their... In their... Whitney, of findings of misconduct, professional misconduct, and confidence in subordination, they don't mention that. Do you really... I mean, you just can't. It's not something you should try to defend. It was a swing and a mist to put that in. Okay, I accept that, Your Honor. But again, in the retaliation context, it has to be a but-for-cause for the adverse employment action. And here, clearly... Yeah, I thought that's what you would say. We shouldn't have done it. And we can't defend it. But it doesn't cause... It's not a reason for you all to vacate that... It's not a reason to vacate the... That's what... It's what
.. I mean, you just can't. It's not something you should try to defend. It was a swing and a mist to put that in. Okay, I accept that, Your Honor. But again, in the retaliation context, it has to be a but-for-cause for the adverse employment action. And here, clearly... Yeah, I thought that's what you would say. We shouldn't have done it. And we can't defend it. But it doesn't cause... It's not a reason for you all to vacate that... It's not a reason to vacate the... That's what... It's what... It's the right judgment. So that's what I characterized as harmless error. I mean, that may be more of a... Well, then I was fairly... I'm currently... ...of the defense company. But that would be... It shouldn't have been done. I've had to... We don't want to
... It's the right judgment. So that's what I characterized as harmless error. I mean, that may be more of a... Well, then I was fairly... I'm currently... ...of the defense company. But that would be... It shouldn't have been done. I've had to... We don't want to... We don't want to be... ...approving that kind of thing. And we... Even if we agree with your appreciation on the merits, we shouldn't be approving that kind of thing. When somebody thousand at U.C. can play, and they're having a hearing... When the discharge is not that, but the EOC can play it into evidence. And that could be... Yes, Your Honor. It's stifled. People exercise in their EOC rights, all of you
... We don't want to be... ...approving that kind of thing. And we... Even if we agree with your appreciation on the merits, we shouldn't be approving that kind of thing. When somebody thousand at U.C. can play, and they're having a hearing... When the discharge is not that, but the EOC can play it into evidence. And that could be... Yes, Your Honor. It's stifled. People exercise in their EOC rights, all of you. Yes, Your Honor. I would just like to point out again, briefly, that the termination proceedings were initiated and approved before... Without any... Without any mention of that... Of that EOC... Of that EOC complaint. If the court has no further questions, I'll rest on the brief. Thank you very much. We ask that you affirm the judgment of the district. I must talk you, Reply. Thank you. Just to be clear, at least in theory, Mr. Corsey wasn't terminated until after the committee had made the recommendations. I then got a hearing in front of the president to argue why she shouldn't adopt the recommendations. And then she subsequently came out with a written decision saying, you know what, I'm going to adopt their recommendations. So, you had a hearing when you went to the president's office and argued the thing? Or a argument very much like today. Or a argument before the president
. Yes, Your Honor. I would just like to point out again, briefly, that the termination proceedings were initiated and approved before... Without any... Without any mention of that... Of that EOC... Of that EOC complaint. If the court has no further questions, I'll rest on the brief. Thank you very much. We ask that you affirm the judgment of the district. I must talk you, Reply. Thank you. Just to be clear, at least in theory, Mr. Corsey wasn't terminated until after the committee had made the recommendations. I then got a hearing in front of the president to argue why she shouldn't adopt the recommendations. And then she subsequently came out with a written decision saying, you know what, I'm going to adopt their recommendations. So, you had a hearing when you went to the president's office and argued the thing? Or a argument very much like today. Or a argument before the president. Correct, sir. And the... Was the EOC complaint argued? The EOC complaint was not argued. Was what? I don't recall it being argued. It was not argued now. Okay. And as I understand the gravamen of the complaints against Dr. Corsey as they were presented by the university at the committee hearing, it was that he had become cantacarous and irassable and outspoken and rude and that this had affected his conduct and his competence. And the EOC complaint sort of came in with a lot of other stuff all designed to my perception, to show that he was a critical cantacarous hard to get along with guy. And that position was ultimately adopted by the committee who chided him for being disrespectful and discurdious and not collegial. And in my view, it's impossible to separate the strands of evidence leading to that decision because they do not separate them in their decision. Nor does the president separate them in her decision. Although the complete record was made available to her in my understanding is that she at least professed to have reviewed the entire record. All the exhibits, the proceedings, gone over the whole thing. So although I'm painfully aware of the recent Supreme Court decision on retaliation but for causality and so forth, I don't see how that gets my colleague here to harmless error because it is simply impossible to tell whether the EOC complaint significantly impacted the members of the committee or President Thompson or any part of the decision making process. So respectfully, I would ask that you vacate the decision below for that reason but also because as I argued in my brief, I think the district court applied the old improperly heightened standard in analyzing our regarded as claim. I also feel that the fitness for duty evaluation, although I certainly acknowledge the reasoning that Judge Cogburn identified, that it wasn't the requirement was not imposed at a time and under circumstances suggesting that it was actually based on a genuine reasonable belief supported by the evidence. If it had been, instead of removing him from campus, they would have said, look, go get a fitness for duty evaluation. They didn't do that. They kicked him off campus. Three months went by, the committee came back, they said, well, we don't think that was right. Six more weeks go by and finally, very belatedly, and I think strategically the President says, well, I'm going to adopt the recommendation, go get a fitness for duty evaluation. If the concern supporting the fitness for duty evaluation had been legitimate, bonafide, they would have asserted it up front instead of when it appeared tactically helpful
. The bottom line, if there is one, in this case, your honors would be that the university, and I'll acknowledge I haven't deciphered what is really going on here, but I think it's crystal clear that at some point, the university decided to sort of bring Professor Corsi into line and to improve his conduct and when he was resistant and refused to submit and to go along nicely, they fired him. Thank you for your time, Joe. Thank you, Scottie. We'll come down and greet Council, and then we'll take a break so that Joe can go help another panel. This court will take a brief recess