our third case this morning is riley vs city of kokomo case number seventeen seventeen in about march of two thousand and fourteen and she had been employed since two thousand and eight started to start taking up in the late leaving about two thousand and ten about march two thousand and fourteen k j told rightly that she had exhausted her family leave which was a surprise to her because she had been shown to leave schedules which showed that she had positive balances  a told her that she should quit receive social security disability benefits she did not want to quit and did not quit and shortly thereafter on march thirty first two thousand and sixteen k j gave her first discipline of a written warning the first discipline she'd ever received in the five years of her employment the decision to me did she get any warnings or discipline after that fight with the tenant back in two thousand and ten no your honor and that was not there was nothing no discipline and was not involved with her employment at all and was after she was terminated was not an issue until after she was terminated the k j went back to find any negative thing they could about her to just throw at her defendants do that when it gets and so what puts i'm pointing out is that it was not raised during the employment and was not an issue for employment as matter of fact she was merely she was taking her custodial daughter home where the daughter was supposed to be from the father's girlfriend who had who is not letting the mother come and get her daughter the mother reached in the screen and locked it got her daughter take her home and then there was an altercation we don't like that one but his rightly says she was just taking her daughter home and was not let the girlfriend take her and inside so rightly was doing what she was supposed to do she did  technically assault the lady did reach in the screen but but she could probably be commended for or a part of those things she was doing which was taking her custody of daughter  so the march thirty one two thousand and sixteen written warning was based on false allegations the warning stated that she was allowed a tenant to move into another unit which was not true because she was not the one who was had the authority to order or did they give the authority for that tenant to move she did what she was supposed to do which was just to allow the tenant to see the unit and then it was up to the other employees to do the paperwork to authorize the move and they did tried to blame her the lady who did authorize it at the beginning was margaret kang she was only given a verbal warning and then there were people above her who approved it they were given no discipline the whatsoever this is very upsetting to angela riley her stress increased she has a bipolar and disorder which causes seizures her stress increased she had she went to the hospital in april of two thousand and fourteen and then in may or may seventh of two thousand and fourteen she discovered that someone else had done much worse that it was a special situation which upset ms rightly because there are no special situations that allow anybody to move into public housing without proper paperwork so someone w doing much worse than she had done there is no paperwork on these people and when someone moves in a public housing the housing people need to know that someone's in there for fire burglary robbery  who had said to through a third party through another employee that was a special situation someone is getting special treatment that was by the other employees who had no disability and had not complained about  discrimination they were allowed to move someone in with no paperwork or is she who had merely given that someone the right to inspect or look at property she was given discipline and these other people were not so the procedures for k chase say that if there is a problem to call hut in indianapolis she called the head office in indianapolis that her head office told her to call the civil rights department and she did that and the her door was open everyone in the office could hear what she was doing they said that she was distressed they knew she was said you know i've already reported this to heard there's no reason for me to talk to you now is handling it the c e o then did not say i'm ordering you to come to my office or i want you to come to my office or anything like that instead the c e o said you know whenever you complain it cost k h a money instead of taking the attitude that when ever k j violates the rules it cost kind of protected discrimination claim second do you have any specific evidence to dispute the defendant's evidence about the timing of the decision to fire plaintive on may seventh twenty four thank you ms rightly was in a state of stress and distress and cannot remember exactly what she told  remembers that she was told by hood to call the civil rights department that's it correct ok about the timing issue the timing issue is very interesting in that she was stressed change from suspension determination right so the e mail from the c e o said i want to suspend ri a notice of discipline was started at that on that date we don't know whether what it said it was not produced a draft was not produced by k j the only i believe the seventh and then changed it on the eighth and in the email that a gander the h r manager and katie has now produced either email so we do not have either e mail or the that's unbelievable we certainly argue even if it's not totally unbelievable it creates a suspicious circumstantial evidence issue or fact as to whether this c e o would write i want to suspend that the original document started then and was modified later was modified i believe on the eighth and signed on the night the eight was when miss reilly no longer appeared at the office and the c e o and people in the office would be very observant as to whether she was there or whether she was taking leave and you could see that she was on leave she was not there ms reilly then in and then she came in on monday and was immediately terminated so the circumstantial evidence shows that that's a change in the k j never said what this change was they're saying they're implying it was  request for accommodation was in the o c charge so the facts were in the charge has rightly said we did not include failure to accommodate that phrase in the e e o c charge but the facts were there department but there's also the culmination of many complaints that she had made of discrimination over the years and the the h r manager told her when she asked how do i file a complete you'll see charge of discrimination the h manager wouldn't tell her and said we just complain to me let me save my time thank you for for do each of her claims by failing to sufficiently respond to dispositive arguments made by the housing authority and secondly found in favor of the housing authority on the merits of the claim finding that there were undisputed facts that defeated each her claims all those individuals that that were alluded to are unnamed there is no evidence in the record regarding who allegedly had approved the transfer that came to light on m seventh and that they claim was an improper transfer there is no evidence suggesting that that transfer was comparable to what happened with the issue that miss reilly was disciplined for in march two thousand and fourteen there is no evidence regarding who those folks were or what their disability status was or whether or not they had engaged in protect activity mr riley simply has not introduced any of that evidence so i believe that the opposing counsel stated in oral argument that there was evidence that the compared to ours were not disabled and had not engaged protect activity and that's not true secondly  issue of the may seventh two thousand and fourteen complaint a hug came up during open oral oral arguments and the question was what evidence is there of what was said remember she said that she wanted to report a fraudulent activity or something that she suspected was inappropriate referring to the she was referring to the unauthorized tenants moving into the housing authority and that he told her in response that that he would send the information to force jones which was his boss and that she would also take it up with the civil right that she should also take it up with the civil rights department that's the full extent of that conversation with  with mr johnson we don't have to guess as to what was said we know what was said and there is no statement there's no mention by her of discrimination of protected classes anything that would suggest that she was reporting discrimination also that her conversation with mr johnson there's no evidence that miss cooke knew about that conversation prior to the specifics of that conversation prior to making the decision to terminate miss riley's employment  basically the evidence is that some of miss riley's coworkers may have overheard her making that complaint to hud but there is no evidence that that was reported to miss cook the evidence that ms cook knew about the complaint to hud was that miss reilly during her conversation with ms ms cook mentioned that she had made a report to indianapolis at least according to according to ms riley's version of events and council it's at on the record it's undisputed that it was miss cooke alone who had the authority to terminate ms riley's a crime that's correct and that she alone made the decision to terminate this and she did that on the sat i'm sorry miss reilly ye but on the seventh and it was she who created the taxman that reflects that that's right so may seventh and that's the the final issue i want to address that came up was that the the timing of the termination decision on may seventh which is when there was an altercation with miss reilly that ms cooke honestly believed reason we believed amounted insubordination she created she sent an e mail mistakenly saying that she wanted to suspend decision to terminate her and that we know from the metadata that it was it be it was created on may seventh and it was finished on may and so i think that the timing is interesting to the court  most likely because the question is well when did she make her ethical a request to take additional time off and what we know about that is that on may eighth she did come to work she called but she didn't leave any messages on may ninth after the final version of the termination notice had been completed is when she left a voicemail message alluding to the fact that she was going to take f molay on may ninth or may eight there's promissory estoppel which is a separate claim under indiana law and there's equitable stoppel which is as you mention and a doctrine that she can raise in response to the housing authority arguing in defense that family  employee i'm looking at this is because there are several choices this happens to be a thirty seven in the blue brief it's the form w h three eight one notice of eligibility and rights and responsibilities family medical leave act on march twenty eighth two thousand and ten you informed us that you needed to leave beginning intermittently for your own serious health condition this notice is to inform you that you are eligible for f how do you understand that with respect to employer grace vs legal rights imp i'm sorry was the last part that i thought your position was as an employer here that you have a family and medical leave policy that you're not actually required to follow under the act what we have a misunderstanding some nuances here no you're right that there is a family medical leave policy in the hand book and the issue in this case is do the representations that were made by the housing authority give rise to an equitable stoppel claim prohibiting the employer from asserting the defense that miss reilly was a not a know  statue and with regard to the issue that you raise that goes to the first element of equable stoppel that is was there a misrepresentation regarding eligibility and were eligible for a familiar with i think under the case law that she would be able to clear the first had no basis no reasonable reliance on that if you will told the rest of your employees that they're not actually old people despite getting assume these kinds of notices every time somebody asks for leave there's not an issue of whether or not they're getting the lea leave than she was and i understand that but i'm i'm just as an employer you're taking a somewhat startling position in light of the paperwork well there's a lot of employers that have to include a family medical  policy in their handbook when they're covered employer even though they don't have to sell these that are where an employee at the facility would be considered ineligible employee because they don't meet the benchmark of having fifty employees within a seventy five mile radius so the appropriate thing to do in the policy which i believe has been done is to explain that eligible ploy does include the factor of you have to have fifty employees within a seventy five mile radius but but she has not getting back to the detrimental reliance for the claims for the cases that have recognized the equitable stoppel theory in response to support of ethanol a claim in other cases there has been detrimental reliance so there has for example been situations where an employee believe that an absence was covered by the ethanol a the act and it wasn't it was discipline for that and that was considered to be detrimental reliance here miss miss reilly and suffer no harm even if an equitable stoppable theory is accepted by the court she would have to establish that that she was did not obtain leave for which she was eligible and she cannot establish that because the undisputed facts show that in march you know february two thousand and fourteen march two thousand and fourteen when she was requesting this leave she had already exhausted all the leave that she would have been entitled to under the atmel a the act therefore she would not have even if the a  or did not develop those arguments sufficiently and that forfeiture that waiver follows her to the appellate court and applies here she forfeited her exhaustion minim ministry of remedies argument by not developing it at the district court adverse action arguments pretext arguments promissory notes will stock to stop all arguments at the district court level though simply were not developed and therefore she waived them unless she can establish that the interest of justice require this court to evaluate that decision for plain error miss reilly has made no effort to argue in her briefs or in or argument that the interest of  argument regarding why those twenty five instances amount to evidence of discriminatory motive for retaliatory military they're all lumped together and left to the courts to disc to guess is this evidence of discriminatory motive is motive there is no explanation no analysis no application of the facts or at application to case law to dissent to suggest that those facts indicate pretext or indicate discriminatory or retaliatory motive so it's difficult to respond because there had been no one else is to say this shows discriminatory intent or this shows retaliatory intent for some reason and we've given examples in our belief as to as to why those various facts don't show damage or intent or don't show retaliatory intent i think that the one that's most frequently relied on is the reference to social security disability insurance that was allegedly made by mr morrow in they claim in march two thousand and fourteen i believe the evidence reflects that comment was actually made in two thousand and twelve but assuming for purposes argument it was made in two thousand and fourteen the fact is that miss reilly actually did apply for social security disability insurance benefits there's nothing there's no inference to be drawn that miss mara was suggesting a discriminatory intent by asking her a still employed but she was still really but she was struggling to work it was on the heels of taking continuously for more than a month and having intermittent leave twice a week for the throughout her ten your employment so don't there's been no explanation as to why that alleged facts suggest discriminatory intent and even if it had this moral was not involved in the termination titian i see my time's expired for the reasons that i've explained and that are in our brief we ask that you affirm that the district  manager work together to try to imply that the c e o of h r manager did not know what was happening to this employee or that she was taking leave just ignores all of the realities of the situation and all of the circumstantial evidence they work together on it and it would have been a report of a very rare situation for the h r manager and the c e o not to talk about this employee who was terminated who is highly stressed who