morning and in the cool times and here on behalf of the plaintiff a pal of foster i'm assuming you're familiar with the briefs and the facts at this point and i may interject a few here and there my legal argument i'm sorry if you reserve my apologies i would like to reserve three minutes for rebuttal please thank you i will in this case my client has alleged and appeals at this point discrimination in violation of the eighty am valving wrongful termination hostile work environment slash harassment and see in addition to that retaliation and the retaliation is an alternative claim for either which only ation due to a civil rights issue with regard to the racially charged remark and the retaliation thereafter by ferring gibson or also to retaliation with request that the employer refused to things you discussed correctly that there was one regarding use of the bathroom related to some new medication she was taking after a disability leave  you could say it was a commentator to the extent that she could go to the bathroom when you want to but she had one of her supervisors basically stocking her at not only every time she went to the bathroom often standing outside the bathroom and she referred to this as constant he'd be standing outside the bathroom with his arms close waiting for her to come out he'd be peering through holes in the cubicle that are around other people's cubicles that are apparently listening in on her phone conversations clear you not think he was in the restroom peering over cubicles my apologies no no no he was standing outside and he would follow her there he would follow her all around the building just a constant presence basically monitoring you know the use of this which and we don't disagree that monitoring that use might be appropriate however there would be a less harassing less invasive way to do it such as you know having box that she checks for when she leaves and when she comes back asking other employees keeping track of whether her work is suffering in any way by some kind of productivity assessment shadow or like how did he how long oh sorry how long my understanding is that it was from the time she got the the accommodation and the medical no until the time that she went on her next disability leave a family member correctly did she make a complaint to anyone else about this constant monitoring or stalking you refer to as my understanding is she made a complaint to a supervisor which she testified about in her deposition and she claimed that nothing was done about it and so as far as the e p a claims there hasn't been any dispute that my client's disabled there's obviously no dispute that she was terminated so that leaves us again with a causation issue which i thought counsel that was up here arguing beforehand a very nicely these are typically questions of fact in this case we have a number of items that could certainly be in d or an inference could be drawn to demonstrate that there was pretext in the stated reason for determination there's do you really dispute though that she missed consecutive days of work even if even if your argument is that it was three consecutive days versus seven consecutive days if you if you miss three consecutive days of work without leave why couldn't you be terminated let me clarify that first of all opposing counsel correctly pointed out there was a mistake in our brief regarding that the two different return to work dates that indeed took place late in the prior year of two thousand and eleven so that was just an honest mistake for which i apologize but i don't think it affects our argument on this issue at any rate i believe you were asking whether sorry i'm missing this work right she did miss work however as in the past when i had been accepted was she would often for her to pray or disability leaves for depression the psychologist would send a first and then follow up in one case it was name followed up by the psychiatrist until the date she was due to return from disability leave in order to confirm that what the psychologists had said was accurate basically now in this case and the day that she was returned to work actually on the seventeenth which may have been a day or two before after another recent hospitalization which included a suicide attempt she received a note from her psychologist or psychiatr was out of town the seventeenth the psychologist faxed over no indicating doctors out of town until the nineteenth however there were detailed notes also which indicated that the client was undergoing severe stress at excuse that was the count that was the counselor right that was the counselor whose advice they previously accepted even up to the point of the end of the disability term ok so that that goes back to my question so i as the rules say it has to be a valid note from a doctor correct so you're saying that because in the past they had allowed her to skirt that will that they should have that they're stopped from imposing the rule at a later point in time it was certainly would be unfair and prejudicial to plaintiffs especially considering the fact that she was in a severe depressive state at that point in january there where like i said there was a suicide attempt and her counselor indicated th no way shape or form she should return to work which was there by the work excuse that was signed by the director of barzee and january nineteenth two thousand and twelve the problem is because we weren't able to do it i'm really something but nothing happens with anything sent down the line as far as the doctors work excuse on the nineteenth we have i have actually right in front of me the work excuse the only issue i think that came up in depositions was whether or not a chair claim that they received a copy of this but it's titled work excuse certifies she merely a bird at forrester was under his care and is not able to work from ri seventeen two thousand and twelve through february fourteenth two thousand and twelve and that was set as far as we know yes it was sent it was in the records that we received from advance counseling services a copy of which was also received by defend t but i would have had to be able to depose the individual account one mary kay met joe to confirm receipt because any medical leaves went through her first and not to get into that whole issue but we had a real problem getting in touch with her she had right she just didn't show up at that was it ok and you're saying that that's not correct correct so you're saying it doesn't matter which is what matters i think it matters a great deal i think though that because the individuals that we deposed as far as defendants employees go i believe they test for a different remembering correctly that they did not recall receiving this work excuse what i'm saying is this work excuse would have gone to mary  one the individual who is deposition we were seeking at the time that motion for summary was filed so that you need an opportunity to do or that you've somehow been limited in your ability to conduct discovery which prevents you from being able to provide a more detailed answer to judge white's question correct correct and i apologize but it's still that come up before the judge i did raise in our brief affidavit we did try to substantively comply with that rule we gave reasons why we needed the discovery and the reasons why we were having problems getting a submit an affidavit from the doctor saying that in fact he that there was a genuine issue or that you were certain it was a genuine issue whether notice was said on the nineteenth that she was disabled yes i believe that because so we left off i think mr rugg and back was founding her around in addition after the racially charged remarks by fair and gibson which happened first he per my client's testimony which is supposed to be given credence at this point physically attempted to assault her on two separate occasions he got very involved with all these discussions in the e mails that were exhibit in the lower court and discussed in our briefs you know well should we do this was shimmy ilyas should we do that even after he wasn't her direct supervisor he was still getting involved in e mails about her medical thing and wanted to monitor the bathroom breaks and everything else and like i said that would be fine but they were already working from some assumption that she wasn't going to be able to it appeared or they could be read and the statements that they made could be read to agree with my client's interpretation that they were trying to shove her out the door from the moment that she complained of the statement by mr gibson and i think that that's further backed up but the drama over the video store basket be the issue with the video basketry first and foremost is that  right to misstatements about why my client missed some appointments etc but i think that the crux of it is that my client's duties she'd been working here since the year two thousand two thousand and eleven i believe it was there was a change over to blue cross blue shield just blue care network if i'm remembering that correctly so at that point scuse me when they wanted to that she can use for taking the hos two positions one where she's claiming a religious basis and then she's saying but i don't think about my religious basis well a whole religious basis thing let me put it in context first this was after numerous attempts to obtain the code which i'll get into details of burn big in just a minute because we have very differing opinions on why the code was needed and  all right so and then the next thing was that during her periods of depression they continued to harass her to come in and get this video your basket b which for anyone who knows people that deal with depression you know getting out of bed getting out of your house she testified she hadn't showered for days getting on the phone something extremely difficult to do especially if you have depression so bad that you're disabled so the bottom line i think when she made those religious remarks i don't know how sincere they were or if it was just that she was frustrated you know she did make an indication we are making claim for religious discrimination first and foremost right after our saying that the employe actions were either retaliatory or their reasons for terminating her were pretext rules but you told me about the religious thing but i understand sure well and let me just express the idea is that the video to baskin the first place was not a reasonable request and that's required it has to relate to her essential job functions but the only have requested it only accommodations you ever question with more frequent bathroom breaks and your argument is she couldn't get even get out of bed how is she otherwise qualified for the well these are two different time frames but she never made a request of accommodations relating to or depression other than those connected to the medication  my understanding is that you know she would go on leave when she needed to and returned when she was able to return to work you stated quite correctly although yes she didn't request an accommodation in that regard and also sorry can get much sleep last night  i think also a failure to accommodate her depression only to the extent that they kept harassing her as far as going to this appointment while she was to pass i managed to one point that a doctor did write a note saying she could undergo the procedure but that was prior to her last suicidal good morning your honour's lori adam cesky on behalf of the defendant appellee blue cross blue shield michigan the defendant respectfully smits at the trial court's decision to grant summary judgment with respect to all of the plaintiff's claims was correct and therefore should be affirmed can you help us the record here is there a note from the psych hired first that is dated on the eighteenth or nineteenth of january there was a note in the psychiatrist's records dated the eighteenth to the nineteenth however that there whoever it's simply a doctor's excuse no it says that she needed to be off a work dated january nineteenth i think the question is is there transmittal document that that shows that this was and that's that would be correct that's the issue and the answer is no there's no record that it was ever sent or received by comp one or by the defendants and we're supposed to assume that the doctor filled it out and then just stuck it in his own i can't speak to what the doctor did or didn't do i can speak to what file that were kept by the case manager mary kay mitchell that documented each and every point of contact that she had in the spile that being that she did receive that counselors suggestion on the seventeenth that she not return to work at that point however there's no follow up from the doctor or from the counselor sending that record to comp one the idea here being defendants comp one had no knowledge of her and no confirmation i mean you've got  big company let's say it's not this employee and somebody else you have this by saying they're going to send something do they just fire the person or do they get back in touch with the person who sent that on the seventeenth and said were you going to send me received documentation from her position in the past and they did actually send her a letter saying we haven't received any disabling documents against you if that's what they did in the past and that's the normal procedure doesn't cut against you that they jumped on the opportunity to fire her at that point i don't they did not jump on the opportunity to fire her the company waited proximately to calendar weeks before she was ultimately led gulp i thought she was fired in the twenty was she was supposed to return on the on the eighteenth but they got they got information on the seventeen they got information on the seventeenth from a counselor and the undisputed records from the comp one case administrators indicates that plaintiff had been previously informed that counselors notes are insufficient to to warrant or to validate a need for a leave of absence but they'd previously been accepted or at least given the leave of absence and followed up later with the doctor's right and that's what exactly did not happen in this leader in this last occurrence the plaintiff but the letter saying we need the doctors never went  the form and the question is whether it was transmitted it's not that they dropped the ball in the sense that they knew that they needed it but didn't submit it the doctor did it the doctor told before you claim you didn't get it the doctor according to the doctor's file there is a form in there when it was filled out was filled out we don't have information as to that however we do have information we have an undisputed record here that neither defendant or one received that document and i was the person to pose why was that the person who administered mary kay whatever who administered that will mary kay mitchell was identified as a potential witness by the defendants in their initial disclosures beginning of two thousand and thirteen at no point the plaintive prior to receiving a second sixty second extension of motion was filed the time that the decision was rendered by the court however the sciver was open at the request of the solar plus of the plaintiffs in this case defendant objected to it when the plaintiff requested an extension of discovery that second extension she didn't request in any dates be told or or extended as well she knew full well that the motion deadline was still intact and that there was a potential that summary judgment could have been granted at any time after that motion was the court aware that there was this document dip i believe it was around the time that discovery was close in august was the first time that it was ever requested but what happened i'm trying to figure out what happened they requested it when they requested i believe in early to mid august at the time that the first extension was was coming to a close and this she had her contact information through comp one i had also been in touch with comp one to communicate regarding miss mitchell's whereabouts asking what's going on with this deposition are we is it going to take place i or you know sing it up have you been for me of the day time because maybe i did that just slipped through the cracks i don't know what happened because ultimately it was never a notice is that we are  cerny can fire explain than i she never noticed that deposition ok so you're saying it was first informally requested in the beginning of august and so are you saying that was the first time that the plaintiff's attorney ever indicated that there some sort of an indication in the beginning or mid august that she wants to take the death and you're saying that it there is cooperation on the part of the defendants and you has just tell us when you want  and that she never followed up and gave a date that's what you're saying that's correct and i will also add that there was also cooperation by comp one and miss mitchell and conference attorney ok when was the motion for judgment the motion for summary judgment was due september twelfth two thousand and thirteen and that was pursuant to the judge's scheduling order it was filed on the twelfth of september and he ruled in november he ruled i believe at the beginning of november ok and during that period of time with their continued anything that you're aware of now i'm aware of the plaintiff never contacted me said hey we still need this deposition as far as i can recall i don't remember receiving any phone calls or e mails from her saying we're still trying to coordinate the step is ition and in fact i think by the time that the motion that she found her brief in response i don't believe that she had actually communicate with me in some time at that point regarding the step as though if in fact this is a critical document it really just comes down to whether or not playing to build their obligations to pursue the case adequately or pilled received that documentation that she and she had been in contact with the counselor and the doctor the doctor in the counselor worked in the same office the she had been in communication with them and that she had not received that documentation things from the doctors and things of that nature there's also there she also had there was also other documentation regarding the fact that she had informed the plaintiffs that that counselor suggestion that a note from a counselor would be insufficient and the plaintiff knew that because the plaintiff did follow ups and previous instances and provided documentation from a doctor ok was there any evidence from somebody from the doctor's office that it was communicated now the plaintiff could and that's as another example the plan of could have deposed someone from the doctor the doctor's office the plan of could have had an affidavit signed  someone from the doctor's office none of that was presented in the in the record here young disputed record here alternately reveals simply that the defendants were not aware that the plaintiff was needing to take an initial leave of absence it also bears  s just completely contradictory of the past record where she was afforded three other leaves of absence for depression within the preceding year would they discriminate or retaliate or harass her at this point when could if she's clearly in need of it they've been accommodating it they've been giving her the leaves that doesn't that or a human could against you if the practice is to give her to accept a temporary subsequent there was a complaint in december that renewed the same concerns that were investigated by the defendants a charge of partment during the course of june july august and september of two thousand and eleven all the while she's being accommodated with the bathroom breaks with leaves of absence for her depression she there's no indication that she's raised any new complaints nor did she raise any new complaints relating to  any allegations that she was harassed or retaliated against because of a disability and in fact the plan of never actually testified that in which she was given multiple opportunities to testify about what she believed how she  was retaliation against and what she believed were the causes of any discrimination harassment she never identified any disability as part of that rather she relied solely on these alleged comments by fair and gibson that were made back in october of two thousand and ten that she didn't complain about until june of two thousand and eleven there was an investigation that took several months in part because they were waiting for miss burnett tosser to return a leave of absence of that they can conclude the investigation to follow up with her they found alleging was following her the fact and they found no evidence of that in that the investigation report which i it was part of the record i apologize i don't have that reference in front of me did reveal that mr  shied away from confrontations with this foster so he wasn't trying to confront her he wasn't doing anything to to raise a confrontation with her the fact of the matter is they sat side by side in two cubicle separated by a wall so if they were going back and forth to a restroom or to the kitchen it was coincidental at best so we just i just to sum up quickly i know my time is up we respectfully request that the court uphold the lower court's decision granting a motion for s in this case that makes summary judgment inappropriate ok i would say and there was a perfect example just then was mr walking back harassing my client according to what he testified to know according to my client he's found her around everywhere she goes standing outside the bathroom and she gets there i think that would make any of us nervous on a daily basis at work you've got another manager who's pushing to stick in their own go out as you're walking by so you have to avoid getting physically assaulted that's her version of events his may be different for her testimony is evidence and that evidence has to be considered taken into account it can't be just brushed under the rug because a judge whether he intended to or not in my opinion made a credibility determination on that issue thank you you're welcome i hope there was a sink down there and then i did briefly want to as of i don't think it's a key issue in this case  why mary kay mitchell was not deposed because there was quite a bit of discussion and that it was not is easy if this is the sound she left camp one she got her own attorney and or count one got an attorney for her at some point and this may be after ms why on where mueller spoke with posing counsel i'm not sure but my understanding of the situation was we were working with this other attorney specifically the attorney for ms mitchell attempting to get dates they wouldn't get back to us  i forget if we i believe at the time that the motion was filed we were getting ready to send out a subpoena for her deposition and there was also one other well skip then get we realized it was going to be when it was going to be maybe we could have submitted a supplemental brief at that point that has nothing to do with whether you there was no stopping your discovery just because the motion was pending right ok there's no stay of discovery right there was no stay of discarding to go ahead and the people well and that's the thing i can't say about that one way or the other is ms wire miller was handling that and i'm sorry that i didn't ask before i came if it's of great importance of course i'd be happy to file something supplemental but you just answer the question the question is why didn't you go ahead and notice a deposition or and trigger that process that would require a supplemental brief that's saying why didn't it happen on your am well we didn't have any agreement as to when it could be that's what i'm saying she had her own attorney forget any communications or blue cross what happened was they weren't communicating with us at camp one at all simply by not agreeing you could allow somebody to just warrant your ability to pursue and prosecute your client's case right but at the point that the motion was filed my understanding was that things were still in limbo and unfortunately because deborah was handling the discovery aspects i can't speak as to exactly where they stood other than what i took a bed ready but you never submitted anything from the doctor's office saying that this was faxed current correct and that was totally within your control right yes and i use soon that you got the records from but succumbed one yes we did finally receive the records and when did you receive those again that would have been discovery was more her balearic our opposing counsel may be able to speak to i don't know but my understanding was they were subpoenaed at one point and i believe it was is because on the one hand you have them saying the bottom line for them is she was fired because she was absent without any explanation so that would seem to be the big question i believe that's an important question certainly i do believe that the past practice of allowing her psychological notes to go through from the psychologist again sometimes they let that go for several weeks up until the end of a disability before they took a look at the m d no in this case it's drafted the nineteenth whether or not they received it i don't know that at this point in time but i would say that based on their past practice my client least had some right to rely on that and especially given the nature of her disability debilitating depression anybody who knows anything about it it's you know extremely difficult if i may just real briefly summarize ok think the main issue here was that there was a credibility determination and a failure to view the evidence in the light most favorable to show me there were genuine issues of material fact as to each count while some juror might agree with the judge that she really was not to be believed  that she was on disability leave at the time she was fired there is evidence of the two prayer incidents and certainly a jury could find other than the judge did leave it at that for now thank you for your time thank you both