regarded her as as being disabled we think there was sufficient evidence in the record to allow a jury to determine whether or not the employer number one regarded her as being disabled and to whether or not her disability that they regard her as having or that we feel that she had was the reason that the company terminated her in the record substantial evidence that ms perry suffers from numerous serious medical conditions starting out of quite a logical way obviously was the the issue with her foot that the company dealt with deal with her taking leave on also was confronted with this perry making request for accommodations and we don't necessarily argue that that is a discrete act for which she can bring an action because of its time but we are saying is it starts a pattern of notice that the company understood that this was an employee who had they been doesn't someone with a disability stuff to comply with the absent policy in other words getting permission when you're not going to come to  but when we start talking about applying the absenteeism policy to mr perry we talk about it in context of  and what makes this case in our opinion and sufficient to go to the jury is that the company had an employee who had been applying for and been approved for in didn't we would disagree we think that the proof shows that ms perry was calling in to say that she was going to be absent now there is a change in how the red cross handles f m l a or absenteeism i believe sometime in the spring of two thousand and twelve if i'm not mistaken that we now have a third party individual that we now have to contact and let know that we're taking f m l a but she's calling in a ut to do that though absolutely but she's calling in and telling them she's going to be absent she's bringing them a doctor's note in her employer wrecked now defended agency or whatever it's called that's correct but that that that gets started relatively close in time to her actual terminations but let's assume bat she does not call the correct person where's the corrective action where's the disciplinary document where's the ride up or the counseling where is this implementation of a progressive disciplinary policy the company talents talks about the fact that she had x number of absences and was terminated for these other eight folks that suffer from the same policy is there evidence that they were given what you're talking about or that would be evidence of pretext not the words that would suggest there was this counseling there was this interim discipline that happened the other eight i'm not aware as i stand here that eight of those receive that type of progressive disciplinary i'll see any of them i don't know bad but i think ms perry is different because the absenteeism policy can be applied by the employer but it can't be used to violate the law it can't be used to interfere with an employee ability to take if i'm l a she's already been approved for in a bit f m l a for the very conditions she's missing work for and so she's calling in and saying i'm not going to be there here's my doctor's note  her supervisor is testifying that i'm just taking a doctor's note and i'm just cramming them in a file and the f m l a law is clear that when an employer gets knowledge that an employee is is incurring absenteeism from a medical condition that's going to require might require if an l a that employer has an obligation of due diligence to investigate further the employee at this point never did any of that the employer at this point just simply said she's called in she's out sit we don't care if there's a doctor's note we're going to under the negative factor analysis that this circuit and here's to charge dead against her sword was absenteeism policy at because that's a sword but i thought it was a legitimate sword not when it's used to inhibit or deprive an unknown un play and medical leave for her condition so what the employer then does is say wait a second we're going to ignore we're going to ignore our approval of her intermittent  now she's having absences so we're just going to document those as a negative factor in running her through this disciplinary absenteeism policy to term there it would be different not the facts but i would have thought this is how it works let's say your your father mother's real health trouble you say i'm going to need to care for him or her pretty regularly you know it's going to last as long as they live and the company says you know that's that's fine that's a good explanation all we need from you is notice the night before ideally the week before but at a minimum notice the night before that you can come in and we've got a cover for you and if you do that you're good you're covered it's all good but if you don't do it i would have thought they can say sorry i mean this just this is not how it works you gotta give us notice and you've got to tell the right person you got to notify that person and if you don't it's going to cut against you on the absenteeism policy and after a certain number we're going to do what we do to everyone else and i think you're as correctly drawing a distinction between no call no show and as the company has argued excessive call the ins i mean she's calling in she's been providing a doctor's note were by the employer has evidence that it relates to the f m l a leave i mean if the employer approves the familiar leave intermittently i don't think the employee is required by law to call the night before something may happen that morning they may have an event and they call in but there was also a question about whether the nature of the problems were related to the reason that f leave was stopped in other words if you again speaking hypothetically if you say you're going to need f m r i leave to take care of your ill parents and then you are absent because you have a cold that would not necessarily qualify you for intermittent f m l a we there's no evidence in the record that the employer did any kind of investigation a term that miss perry was not being honest or not asking for legitimate time she didn't show up she didn't say it was because of my related explanation about there were some of them have nothing to do with the i think there are doctor's notes for all but two you're seeing a doctor's note for anything even if it's unrelated to the original reason why the employer gave intermittent f m l a leave will qualify you for a family i don't know the answer to that question from a legal perspective but from what i understand from the record is that she put them on notice either verbally or in writing what she was dealing with there are instances where her these her supervisors decision makers there would be seeing her having a vince and that when she goes and gets a doctor's note for one of her events she turns it in and it describes how she's affected by one or more of the conditions that she's having and it's i think it's important to note if they had just excused one of her absences that she had a doctor's note she'd never been terminated and i'm out of time  good morning your honor smith leave the court name is mike ross and i'm representing the american national red cross i think the court has honed in on what's really the issue at the center of this case is is the red cross entitle to enforce its usual and customary notice requirements and is that what occurred in this case the answer to the initial question is the red cross entitle to enforce those notes requirements is absolutely yes it's in the e e o c regulations and it's  there is more evidence about communication by the employee to the employer in that case with regard to a medical condition that would potentially be film or qualifying that this individual's going into surgery for her nia and the court said that because the individual didn't call in every day that he was going to be absent as he was required to do the company could terminate him for absenteeism without violating the policy that's essentially what happened happened to her in this case everything else is the same but she just wakes up one morning with the flu and let's say she called so she says you know would you have given preet would that have been a preapproved and it would been fine to stay on or would you have said you can stay home but it's going to count as one of your seven absences well the way it work is the employees were the employees are required to call to do two things make two phone calls one is to call the supervisors who are on site who are setting the schedule and let's say she calls everybody she's supposed to cost she's got a doctor's no one of the seven or would you have said enough you have the flu stay home fine thanks for calling but what if what would have happened if she calls and hewitt and hewitt were done with the information is make a determination as to whether it was simak qualifying they just that you know the one day pretty serious case of the flu i think the answer depends on it would depend i can't answer for them i mean it would depend on their analysis of whether the flu is a serious health condition that would qualify under family if it's not it wouldn't be marked down  there some sick days available to you are not part of the red cross policy now the way the policy works is all it makes the first distinction between scheduled an unscheduled leave so if you have scheduled leave in advance i'm taking a vacation and it approved there's directly no limit on that that's you know if you ask a month in advance and take time off if you have an unscheduled absence which is typically what happens when somebody sick or you know something some family circumstances arises  you could have it was a progressive policy so that for the discipline procedures kicks in at four during a rolling twelve month period the discipline part somebody gets the flu repeatedly because they happened to  compress thing if once they have hit four unscheduled days the discipline policy comes in in the form of a verbal warning hey you have four you know be aware of our policy if you get up to seven then its determination and that's assuming that the absences even on schedule absences sometimes are excluded from the disciplinary procedure but the flu would not be one of them unless it was protected by someone an example of something that's protected his family jury duty some sort of something that the law would require some kind of military duty being called for the reserve something along those lines but a normal sickness you know a common cold answer to judge doctors question there are no sixty six i mean except there are seven i guess technically there are seven six days that's the way to think about it if after four you're going to get quote disciplined because maybe i'm married to an elementary school teacher there's viruses all over the house yes that's correct and it might seem strict but that doesn't make it discriminatory and it doesn't make it look i don't think i've ever heard of an employer that didn't give employees some number of sick days usually calculated by you know how many days they were you work for weeks you get a sick day if you don't use it and you work for more weeks you've banked two sick days and there was no policy like that at the at the red cross international you know there's there's not you don't get paid well that depends on the employer's part because some employers will pay if you have p t o saved up or something like that and i'm not sure how this policy work i believe that if you had if i'm away and you were still within your number of scheduled absences that you would be paid for  i cannot imagine thinking that family is not going to applied for who i think will get the flu for like you know three days i mean vomiting for three days so that's three three done with that so you get the flu twice you've got a serious problem on your hands that's right that's the policy the red cross if you need the red cross for the red cross you one will bring the red cross from columbus will help you pull up the red cross in nashville the other irony is that these people are serving  well in a medical context and so the natural tendency of the person with the flu would be to come in and work so that they wouldn't get fired work with needles and everything else so  what's in your estimation talking about her f m l a clean what is the fatal flaw that causes her to be fireable the fatal flaw is that she didn't fall of the the notice procedures and the notice is that  she did notify the supervisor but she didn't notify yes and i take issue with something that counsel for the appellant said about the way the notice occurred with the supervisor she did notify the supervisors as far as i'm aware for all these absences i'm not going to be in so they could deal with scheduling but the idea that the record has doctor's notes that support that she had something that's potentially from a qualifying in all these instances or in any of these instances is just absolutely not true she did have doctors notes  for a few of them and there's there's one that was from a dentist that doesn't say what she was undergoing i soon i can only assume it's a normal dental procedure i don't think that that having seen a dentist on one day and being out for the morning or it all depends what the dentist  i suppose it does but there's certainly nothing in the note that suggests and she showed up to work the next day so i don't think that there's anything to put anybody on notice even if the red cross couldn't enforce its own requirements and say you were supposed to call this person you didn't do it and there's one other doctor's note that is from i can't remember which position it's from but it doesn't say anything about just she was seen on this day and that's it so part of the policy is that she has in order to approved yes so she was approved for essential tremor so she calls and says i need to use one of you she had already done this she was aware of the pain of the policy she'd been told three times that every absence after you get intermittent you have to call in on q and tell them about it she would she would do is call and he would say hey here's my claim number i have the approved family which she had and i'm going to take i'm going to be absent today for this reason she did call and now she did not know what she was required to do and she failed to do it and she called her supervisor and then was she told after the facts and that then she could properly do things in the future which she told hey you called your supervisor but you didn't call  i don't think there's any evidence in the record that there was any knowledge on the part of the decision makers i mean the way the thing the way it's set up is the supervisors are managing  scheduling so they need to know for that purpose in they manage the discipline and hewitt is managing all the other aspects of the policy and they're not communicating on a daily basis but that he would live for after the four had several she was for years for a couple years she was on on the verge of violating the policy to the point of having seven absences shoot she'd been warned a number of times and i think she was already at five or onto a policy went into place so at the times that those warnings i can't be sure of the dates of all of them without looking but the time certainly of most of the warnings that that wasn't a requirement it was something that came in later so it's not it's not something that anybody was neglecting teller because that wasn't policy at the time the way she was informed about the policy was three fold when she would first start a process in the leave all the make all the employees receive an email she admitted she received it if you have to call a on  your manager she also received a flyer that all the employees received and i believe was posted that gave the same information and then both times so it's actually four times both times that she was approved for intermittent leave she gets says you have to make both of these phone calls you have to call and on and give them this claim number this is what you do and she didn't do that but i don't there's nothing in certainly the warning letter stanch your question it says that you have to do this but it's just not really a part the way it was administered to that it's not a progressive discipline policy in the sense that she was doing something you know that was a job performance issue or something along those lines that you say hey that's progressive discipline  right you know when in performing poorly getting customer complaints in the my boss comes in and says you're getting these types of complaints this is what you need to do to fix it it was that nobody knew that she had similar qualifying reasons there's no reason to tell her that not aware that failing to call is critical to her retaining her job then you could argue from the other side and say why didn't the employer when the employer realized that you know i don't six or  that she is not calling and why didn't the employer say hey you know you're supposed to have been calling an i suspect it was a timing issue but there's nothing in the record to one where the other speaks to that you're mentioning the record is the entire her deposition in the district court's record we were having some trouble finding it you know i believe i believe that the i only filed excerpts i believe that the plaintiff filed the entire thing but i did notice in issue on pacer when i was hearing the brief that it's not publicly accessible one of the exhibits to the opposition they filed a motion for summary judgment that that could be the issue on i'm really not sure i'll ask the other side as well i just want to give you a chance to tell me how many employees are in that it's nashville red cross yes observing employees or in this this particular facility i can say it's you know it's i've been there it's maybe a two floor facility so fifty or one hundred somewhere in that range of would be my guess but i'm just speculating it seems like a lot of people that are losing their jobs over this policy might be almost ten percent in eighteen months i couldn't i couldn't speak to the numbers but it is a large number i think that it only goes to show that it's a policy that's being strictly inconsistently enforced there's no evidence certainly that any of those employees were disabled or had similar qualifying  reasons or are being discriminated against for anything it was just it's a it's a strictly enforced policy and it might seem might seem to be strict but you know they have they're dealing with the public so  there's people coming in to donate blood and they need to have staffing and i understand that some of these regions they've had problems in the past with having donors become angry and because there's not enough people to serve them and they have to wait for a long time and that's you know why they put a big deal on making sure the people are there and doing what they're supposed to be doing i have nothing else unless you're honest questions are thank touching on the last thing that counsel said that none of the other people that the eight that's been applied to have any record of any disability or family medical leave act that's the point there is not a problem with an employer enforcing an absenteeism policy consistently against the plummet force as a whole however when you have an employee he that you've already approved intermittent a that you already are on notice who has disability or serious medical conditions you can then use that absenteeism as a check mark against them to fire them in the policy if that's the case no employee in the country has if i'm l a protection now the question then becomes when she calls in and says i have intermittent if it's councils alluded to she called in and that gets to her manager gets to miss holmes in a job or at one point i think i heard counsel argue that a on it actually approved one of the f m l a request the last just the obligation to the employer to do it investigation to determine the f m l a qualifying event that was never done they never because yok mr yuck yuck the most of these on excuse absences happened before they came in right guess like they were five or six that nothing to do with a on so which one of those let's forget and for a second which one of those  was a situation where she called the right person said i'm qualified for interment and f mily i'm invoking it for tomorrow and they still marked her as an excused and counted towards the seven i would say every one of them follow the absenteeism policy so and i'm just i'm struggling i mean if you said she called she had had approval they didn't then give her the day off seems to me have a really good claim but i didn't think that happened once you're saying it happened every time and i well i think and i now understand the confusion when we start looking at the absenteeism zz in may that's after  has has taken as come into the question was before trying to focus on before trying to eliminate the problem of which one to call and i'm just asking which one of those did she follow the absenteeism policy they actually said that counts against you i mean i want just tell me one where they should've counted it before a on it yes i'd have to look back into my briefing get the exact date i don't know that exact date is as i as i stand here but back to my original point was employee's obligation employees to call in and say i can't come to work because about health condition i've got i want even approved for intermittent if i'm a light that's what i'm what i'm taking if the employer disavows that the employer questions that the employer has that obligation that's yet another safety feature for the employee because as your honor noted earlier if they had done that mr perry would have known her job was in jeopardy but nobody told him she did nothing because from the other side said she ran up against this number for several years she was quite aware of this issue but in her mind she's calling it like she's home ways done with an l a nobody's coming back her from the employer saying go to this medical certification done we want to talk to you doctors we're not going to i just don't understand what you're saying because i just asked you what was the time she called in and they did they didn't excuse the absence in other words they should have because she called in she says after molly approved and they still counted her against her you can't tell me so i don't it's not very helpful to keep talking about their family when you can identify one of the seven where she does what she's supposed to do and they don't do what they're supposed to do that's what i can't grasp jeopardizing her job she's done with she'd always done call her manager provide the the doctor's notes thank you your red light is on thank you both argument the case to be submitted and with her recess court