seven minutes or so for rebuttal if it's possible we'll see keep it on the clock you have to be room or you will do that think you're on first of all on the f n l a claim the court used a standard a legal standard which really was an accurate it applied a case which required that the employee request leave and then be denied leave which just doesn't match the facts of our case and that's not the only way you can prove an f m l a violation the statute in the regulations applying the statute are quite clear and those regulations have been applied by the ninth circuit most prominently in batchelder vs america west airlines and the the key  test is whether or not there's been interfering with an attempt at exercise rights regardless of however that interference occurred in the regulations are quite clear that quote in all cases the employee should have the employer or should damages and they'll be other issues of fact that go to that that are not before this one so let me ask you the question differently let's assume that we find that you're right on the f m where a claim but that you don't prevail on your other two claims just for purposes of discussion a leave as she had done three previous times or nine years of employment allowed to go out on leave good healthy then return to work we have a different future scenario than what happened where she was denied leaves next to me asked the question somewhat differently let's assume that we find that they had ample reason to terminate your client and that there wasn't disability discrimination or discrimination under the under the two other acts you claim no matter what you do when you're out on leave no matter how well you rehabilitate yourself leave these offenses are so serious we can't have you work for us anymore let's just assume that for a moment what you're relief i just trying to figure out what you really find if i'm away but yo er that wasn't their argument they're not saying that she deserves my life but it's a hypothetical question so let me just ask it again what what you i'm just curious what you get at the end of the day do you get several weeks of paid f m s they leave but not a job back when what happens here will be based on your scenario if in fact your argument is now will we fired her because we had good cause it wasn't because f m l a that changes the entire issue in resign she would have gone out and got healthy it's exactly the point yes which based on interest of time i'm i'm going to move the just be clear on the f m l a we feel the court applied the wrong legal standard  of having to have a request the made and the request denied and you just need to show interference and you need to show that the employee was discouraged from trying to exercise their rights and we think the record is  ample to show that she was discouraged from exercising those rights particularly in that final meeting where her boss kept going back and said you should have asked for ethanol a leave last month you should have left here you're throwing bomb shells on the schedule i want to clean cohesive working schedule because the week prior she had two separate days where she took intermittent finale leave it's very clear from the record that he he was discouraging her from taking that leave and of all things said in that meeting that were recorded never once did he said yes and i del go ahead and take your leave he never did that instead he just pushed and pushed and pushed and he coerced her resignation the next fired anyway because the acts of the six wrong acts didn't your honor that is not been the argument of the employer here at all that they were going to fire her that is not what they've claimed they claim she resigned and there's been no argument and if that were the argument then we would go back and show and show the pretext because she was written up three times she was written up in march of two thousand and thirteen and had to do with her complaining about him being harassed and then  turned it around on her i think you've answered my question ok so of the three write ups one there's one medical error in all three write ups that's it that's the only thing and then in the meeting they come in with this list but that they were giving identified a similarly situated employee who is treated better than her ask did you initial record no there is no there's not a similarly situated employee because she was somewhat unique in but there are other employees who were her coworkers who were treated considerably different they weren't  disability i suppose the clearest thing is that when my client complained about harassment from this one farm system particular day and baker those were ignored repeatedly ignored and the reason they gave was well she was the sole source of the complaint nobody corroborated it however when this guy did things to other people and they complained he was written up in fact he was written up repeatedly when other believe her complaints because of her disability in fact they had their experts say that she wasn't credible in her complaints of harassment based on her disability because of her disability that's why they didn't believe her and they instead disciplined her for her interactions with employees that were harassing her and always took the other employees side even though this one employee in particular was written up multiple times when other people complained and the pharmacy director basically lied about that in his deposition as to that even occurring and then why it occurred and why he only got first warnings every single time don't you have to show that the adverse action assuming there is one here coercing her to resign w because of reducibility i think absolutely i think not just to not just to along the way she may not have gotten some things that you wanted but that the adverse action was because of her disability absolutely and the adverse and there's ample evidence on the record that the adverse action the constructive discharge the coercing her to resign was because of her disability he did not want her there he was as he said she's throwing bombshells in his schedule every week because let me ask one more question because i know you want to save time for could you could you tell me what the disability was that they said made her unbelievable for enter x university that she did they thought she was incredible because of that that was their expert opinion and that that's in the record is  is i'm look for cases did that hold that coercing somebody to resign assuming that's what happened here is an adverse employment action do you have any i do not have a specific case about  anything gets or into a meeting and coerces or says my kids are going to be on the street i'm going to lose my license blaze's huge guilt trip on her he knew exactly what he was doing and are going to stand your factual argument or just very specific question because i know you want to save time you have a case that supports your position of coercion suraj and becoming coercion to resign becoming constructive discharge no i just think these facts support understand your position even and i want to be clear they even support constructive discharge these facts they have to support construct out that you have to have an adverse employment action on the eighty eight claim that's yes correct although there's other adverse employment actions in the record as well one last thing and i know i'm gonna run out of time is i just want to be very clear that this hostile environment claim was made in the complaint it was recognized by defendant by apple even cells in the joint case management plan there was never a motion for summary judgment on it question where identify with paragraph of the amended complaint a hostile environment climate paragraph fifty one is the kind of conclusion repair graph where we talk about her being subjected to a hostile environment and physical pain and next but there's other allegations relative to it in earlier in the complaint when i say i would say as a matter of law this night circuit has not recognized a hostile environment claim but there's clear legal authority to do so including the statute itself about terms conditions and privileges of employment and it's identical to the title seven language where the workplace harassment is an independent  morning may please the court robert gold it's for the appellee scottsdale healthcare our position is that just for court very carefully sorted out the undisputed facts from the disputed facts and properly granted summary judgment only on the undisputed facts the hospital here unquestionably administer progressive discipline for a series of performance related issues and there's absolutely no evidence in this record that any of that discipline including the final discipline that was administer on october two thousand and two was because of the plaintiff's disability the plaintiff what do you do if you have family trigger the obligation of the employer to inquire further at that and there was further discussion and again if you listen to the tape me that's why i have i can't figure out if it's the guy who won the summary of the transcript i'm sorry well that the tape the tape is better than the transcript because what the tape reveals is that during the course of the meeting the plaintiff clearly moved from her initial statement walking into the meeting about f m l a belief into a decision that she because it was it wasn't quite the end of the meeting the plaintiff it changed her mind again if you listen to the problem i'm accepting that i'm accepting that you changed her mind my questions are very different my question is let's assume she'd come in at the beginning of the meeting and said i form request definitely leave and then everything that happened thereafter in the meeting happened her supervisor said boy you're causing me problems in your discussion screwed up and i'm going to get fired if you keep doing what you're doing they leave and once an employee has resigned assuming it's not a constructive discharge assuming you find it in our favor on the other claims which i think was your honor's question to appellants counsel at that point the cases where there's an ongoing employment relationship in other words someone is in the middle of their employment they have a medical problem they have a family problem they have a situation covered by the act i think interference case is where the employee says i need time off i want time off and there's a continuing employment relationship in the employers as you can't have the time off like you can't go care for your elling mother that's interference with the person's right to take leave if the employee to take a different set of facts if the employee had submitted a note of resignation two weeks earlier and comes into the employer on their last day of employment and says you know i'd like to take you know family leave and the employees employment is her rights were not interfered with because her supervisor she knew from past dealings her supervisor was not the arbiter of granting or not grant think leave that was a function of the human resources department she was having a discussion with her supervisor in which at the start of the meeting there was a reference to the f m l a and then by the plaintiff's own admission by the plaintiff's own handling of the conversation the ninety percent of the meeting was devoted to the plaintiff's problems in treating patients the  safety sensitive nature of her position the fact that she was putting patients at risk and the plaintiff made a decision in the course of that meeting that she agreed with her supervisor that she was a  isn't she also claimed that she was coerced to make that decision because a supervisor said i can do the hard way or you can resign well i think the issue is the law if you were reviewing well i think the standard is constructive discharge did the supervisor make her working conditions so intolerable that she had no choice except to resign it's an object of standard the standard is not how the plaintiff felt the standard is whether the supervisor in the meeting was creating working conditions that were that comes in claiming a family if she's done before the as i understand the plaintiffs yes but when she makes a claim it's the obligation of the employee was not invoking the f n l l a and the reason the plaintiff was asking for leave was something that implicated the lately so i think this is not a case of the duty to inquire further it's a question of by the employer exactly she she said again this is on the tape she said going into the meeting i am going into a meeting with my supervisor to discuss my request for f m l a and my mistake in treating a patient so i sue for a moment that this is what the record shows that if somebody comes in to request f m now it and the supervisor ignores that request meeting procedure as it proceeds your position is that because  circuit's decision in history but was a case where the plaintiff a taken f m l a many times and came in to a meeting where she said you know i'm ill i need you know time off and the employee decided not to pursue it as an f m l a request and the court said you know it's up to the employee to decide whether or not they're going to pursue an f m l a claim or not and the employer had no obligation to force f m that you feel compelled to resign is that a constructive discharge i think it has its objective test not a so ok but you keep it there can be facts that make such a meeting equivalent to a construct to destroy china right i think t take an extreme case if a supervisor puts a gun that you can you don't think you know the truth is you don't need that you have to make the working conditions such that a reasonable person would respond exactly i think a supervisor that is explaining to an employee and i mean this was i understand you know i'm asking a different question don't you know they don't have to tell me how innocent your supervisor who i'm asking could end meet a single meeting with a supervisor in which the supervisor coerced you into resigning amount to a constructive discharge only if it objectively real sure ok so if you conceivably could now let's assume for a second in this case that you did have a constructive discharge what does that do to your position on  to substantive claims if it's a constructive discharge that's analyzed under the mcdonnell douglas standard as an adverse employment action and the plaintiff has to show that the reason for the construct of this george was discrimination and that was our alternative argument in the district court and that's what i've been trying to get you to address that this the district court did reach that issue because of the way case was disposed of but we certainly argued in our summary judgment motion and we argued in our pellet brief here that under the standard mcdonnell douglas test the there is no evidence whatsoever in this record that the supervisors actions with respect to the plaintiff were motivated by unlawful discrimination the evidence was that there were legitimate reasons the employer has a burden under mcdonnell douglas only to articulate and let's assume you have met that by showing that she grew up some stuff and then she has to show pretext and again in the meeting where she is admitting whether or not she resigned where she is a actions she is admitting that she had be become unable to do her job she's admitting that she did the patient actions that were leading to the employer's disciplinary action there's just no evidence of pretext even employer in this case was motivated by anything other than the reason that the employer stated as being the reason for the disciplinary as i understand it the district judge never reached that issue because she stopped  exactly right your honor but we had we did raise that issue below and we did we did brief it here because i agree with your honor if you treat the case as a construct of this charge then you have to get to that that issue of whether or not there's evidence of discrimination under the standard mcdonnell douglas formula and there's no evidence of there's no direct evidence of this woman a shot in the record and so the plaintiff has to prove pretext and there's no evidence of pretext in the record either tell me where in the record there's evidence that her firing something she was fired that it was a constructive discharge was a pretext for discrimination against her because she was  the director claims after the fact it was because of medication errors how are those who are not in any of the three warnings except one error in the final warning more importantly after she's fired and she's wanting to be reinstated he has an email where the only reason he cites for not reading reinstating her is her interactions with others he never mentions medication errors that that medication errors so there is clear evidence on the record that that reason which is the reason had she been fired is a pretext and so even if we have to go there there's plenty of evidence of the record and that's been discussed in the briefing to this court as well i do want to address in the time left is the fact that we also cited the october twenty first email the night before the meeting were in she says it may be a good idea for me to take f m l a to recover from the emotional factors that have put impact on my illness i have my doctor involved as well as my therapist and she talks about dosing she's giving them the notice required in a death i'm away she doesn't have to say i request f n l a leave she's putting them on notice and under the regulation eight twenty five three  c in all cases the employer should inquire further even a case like hers where she's taken leave before that's not the issue if they have to figure out inquire further if it's necessary to have more information about whether is even being sought that's what the regulation says that's or duty and so when she sent this e mail the night before there should have been a meeting the next day they should have had the specialist they had for f m l a benefits email or talk to