and such a motion the district court should have disregarded any jury determination for which there is no legally sufficient basis enabling the jury a reasonable jury to have made it now in terms of w work at home arrangement in other words she wasn't just working at home she is also caring for her son during what would otherwise have been work hours i agree that for purposes of a real fifty motion when you look at evidence only in favor of the non meant movement that is correct they could have done that unfortunately what the jury then chose to apparently nor as did the district court in its ruling is that she was specifically told and specifically testified to the fact that the only thing that was being revoked is her ability to quote work from home during those two days and that at the time i know that she had her meeting in which she was informed that her flexible work schedule was being revoked along with else's who had a flexible work schedule at the company she testified that she was specifically told that her f m only leave would continue that she would still be able to take a family leave during those needed times but that she needed to be in the office five days a week but she was going to be restricted to taking her son to doctor's appointments and therapeutic piece actions at the end of the work day and according to this when she was also told she could no longer have her cell phone on except at lunch in order to receive calls about her son a jury certainly could interpret that as human it could it not a jury could have interpreted that as potentially interfering with her fridays she's told me she has to she has to get her childcare set up by monday is conflicting test so but again so if that is the problem that she couldn't have come into work monday because she wouldn't have child marriage she can't leave the child all by himself is that a problem i suppose that is a problem for miss week i believe it's a even larger problem though for retaliation i know i understand that but it is that is that her particular concern that by giving her this monday deadline they made it impossible for her to get to go into work because she couldn't apparently it's very difficult to arrange for child care for the following week during the week and the testimony from this week was that she was told that she had to commit by monday as to whether or not she would be able to start working from home no she was asked if she could have some additional time and she was told that the situation and i grant you that your honor as a mother of three myself i can appreciate the severity but what my frustration has been is that everything that we have discussed this far has been tantamount to an interference playing nothing about miss winks testimony nothing about the district court's ruling on the motion nothing about miss winks appellate response speaks at all to retaliation claim there is no argument there was no testimony there is no analysis that there was any retaliatory intent and this court is extremely clear that there is a difference between an interference claim under a family and in retaliation are you saying that the jury couldn't have used her being actually just charged in other words it just charged in all but name only when she was told she could no longer work at home and was advised she had to make other arrangements by monday and if she didn't show up then only pursued actual terminations claim there was no allegation of a constructive discharge there was no jury instruction unconstructive just church there was no analysis in response to our rule fifty b or fifty eight to a constructive discharge and yet now at this very late stage in the proceeding miss we would like this court to examine the center constructive just charge but exactly as you indicated judge that things were made so difficult that the financial situation of the company was changed so much that she could no longer work from home two days a week and so she had no choice but to quit that's a construct of just church that has never been alleged in the complaint it wasn't proffered at trial it wasn't included in jury instructions the jury in that flexible work at home arrangements are not protected by the f m l a but what that ignored is the fact that wink was not only working at home two days a week which in itself might not be protected activity but she was using her f n l a leave time to care for her son during those two dues a week and in affections not just working from home two days a week she's working part time during those two days because she has to attend to her son and you see ethen l a leave to make up the difference and the company is tracking her use of leave time on that spreadsheet so when this work from home arrangement between two thousand and three and two thousand also ups yes and she had never worked from home during that period of time she knew that a family leave was no non working i agree now we're in a thornier situation where she's doing both and it's only the ability to work from home that has been taken away she can still so long as she has the twelve weeks of intermittently left she could have still continue to work there's this problem with a range in childcare i agree which to me is why the biggest issue in her retaliation is the caus even if that were true even if that was the raise and she obtained childcare i don't think there's any evidence on the record as to what her childcare situation was as of that monday july sixteenth of two thousand and twelve but what i am saying is that nothing about that scenario rings enough and only retaliation like it's nothing about that says she was targeted it was the intent of miller compressing to get rid of her because she had taken f and a lately there is simply no evidence or didn't she tell him that she couldn't she didn't think she could get childcare over the weekend so shouldn't they have given her a few lord is what's the big rush if you know your honor it would be very easy for me to sit in her shoes and i see that my weight light is on however i think that that rings an interference that does not ring in retaliation even if that were the case and the jury found against miss wing and the interference listening to you which rendered seems to me what you're basically arguing which is the jury misunderstood the one problem lifetime reviewing the record this case is trying to figure out what your theory of the case is with respect to the retaliation claim it's really not that clear to somebody who wasn't in the weeds a tr we took the form of jury instructions for both claims and i thought those laid out those claims clearly and we talked about the facts we argued the facts we argued that both claims existed in this case with respect to interference as well as retaliation in that there was protected activity there was a well was the protected active while it protected activity for of all we need to put it in context this is not just daycare this is a disabled boy three years old the mom is looking for about a six week transition her son is choose a term kicked out of daycare two different daycares because they weren't equipped to handle this violent boy who was kicking biting screaming bloody in the noses of his caregivers so the mom elicits the help of the grandmother but she can only handle the child three days a week that leaves ms wink the plaintiff employee with two days that she needs that  protected activity your honor is going to the employer she went through it was mr chavez she went to ms mel stead in each hour and said my son's autistic we're struggling we're trying to transition him into a program i'm on the form with doctors who are trying to get him the care that he needs he's only three years old so we can't just stick him into any type of program and he's not suitable for regular daycare that testimony is unequivocal that mr chavez as well as mom stet knew specifically that the boy was disabled and that she needed this time as judge are pointed out there was a spreadsheet that was created her time was documented and the time that she was at home caring for her son was in a spreadsheet and her p t o was applied to that so there  time that she was there says she needs ten days on she needs two days a week off until the child is summer out right so that transition is about a six week period we're looking at middle of july and twelve she testified at trial that her son did go into a program the first year he had a i e p a using the acronym correctly and now he's doing fine he was able to transition and get into the program and he needed and get that their pay that he so she's working with her employer she's communicating with them then it escalates up to ms barbara so the protected from work who was if we did include the fact that she was working at home in your view so in my view your honor there was a occur about so for those two days she was doing some work at home but when she needed to attend to her son and she could not perform work that time was carved out and designated in the spreadsheet the notice was given to the employer they had full access apparently you knew you wouldn't it was not protected by the if i'm elated privilege of working at home she was told she had to come back to the office right what evidence is there in the record that she was told that and there is testimony i think was significantly by the h r person ms barbie and a juror could have recently found testimony by ms barbie and not to be believable she's individual who met on that friday afternoon with my client and said monday morning you've got to be here and if you can't be in the office monday through friday on these new set hours then we will consider you to have voluntarily quit your employment it was  equivocal i impeached church during the trial over and over and over again during my direct examination of her adversely as well as during my redirect examination her deposition testimony at pages sixty eight and one twenty one she stated that she told ms wink that f m l a was only good for doctor appointments in therapist appointments she testified that she told ms wink that all could kids should be in daycare she denied it the jury her testimony of two individuals they decided that they didn't believe ms barbie i put barbie and test a morning up on the screen she would say one thing i put her testimony up on the screen and impeached five six seven times on key points in the case she testified that she left the discharge intentionally vague and we've cited case law in our brief that it is the duty of the employer to be clear on f emily not to leave it vague to be very  and a retaliation but to prevail in this appeal you would have to be able to show show us that that there's some evidence to support of retaliation claim as opposed to an interfere should be in daycare and that the f m l a can only be used for a purpose other than what this individual is using it for is reasonably construed as having a bias or a respect to what she had been to all it and who was a change in company policy i now don't know exactly how the jurors decided one claim versus the other i suspect that there may have been that type of separation looking at the interference as there is no interference with refamiliarize up until that time and then she was given the ultimatum and then she was terminated and that's where the retaliation i don't know exactly how the jury made that decision but that's a plausible explanation i think well i think what you're saying is that that they decided to punish her for her insiste and that seems to anger so if your sister's well i don't think your honor we need to establish that it's punishment or that there's anger we have to show that there is have said to her that you can only use f m l a for a doctor's point it's clearly a false statement why would you like to an employee about that unless you were attempting to use some level of coordination or influence over them to get them to comply and that's what our being was trying to do sort of strong arm her at that point in new interferes with their plans this is not a key employee she's making fifteen dollars an hour working in this recycling plant processing paperwork she's not a top ten percent earner she's not one hundred thousand dollar person compelling evidence in this case was the instruction by barbie and h r person to my client in filling out the unemployment compensation form that's found at the appendix  forty where her being tells of the right in miller was able to provide me with a very flexible schedule to care for my disabled child up until july thirteenth two thousand and twelve when they told me they could no longer accommodate that's very clear that the cause of the terminations was her disabled child and her taking the leave it couldn't be any clear thinking the leader working at home could no longer accommodate disabled child mean it were good she's using terms that i think tying with sound perhaps or training on the americans with disabilities act that's not part of this case technically  home as opposed to the office was not half a mil a protected i don't know that there are were many cases on that at that point your honor but it was certainly clear to my client in clear to the employer who documented in approved that that she would be caring for her son in those days because he differentiated it in writing one explanation for this whole case is that neither the company nor the client understood the difference that that the leaf that's working your home was not  twine and i am not i am i correct in understanding that during the two weeks at the two days that she worked at home she was using since a substantial amount of ethen ellie leave time while she cared for her son in that state absolutely that was documented in the spreadsheet so her position is that when she's told she can't work at home anymore she's also told in  counsel i did argue in their motion to the court in response to that that this constituted if not an actual discharge a constructive discharge by the conduct of the employer and that's in the  record in the appendix we have across appeal it's a very short simple issue it's the second reduction of the attorney fees of twenty percent it's about twenty five thousand dollars it was based we recovered fifty percent of the total remedy available the reality we recovered one hundred percent there's no duplications of a remedy we recovered sixty thousand dollars which is rounded up  total back pay liquidated damages as well as her rich country a claim in her chapter one of nine claims so even if we had one on there the in fairness claim in addition to the retaliation claim my client would not have been able to recover double her back the amount so therefore recovered one hundred percent of her remedy so that second reduction found that appendix two fifty one strike that family covers the ability to perform work elsewhere which was my point in asserting earlier that she had already taken seven leads before this time and had never performed work or been paid for work during that time she knew that she was getting some special arrangement which that's about what they pay her no that's not about where they piss it is what they paid or if they pay their the work she does it how many not be as valuable as work she does new office so e given that she needs to be at home because of her child why don't this is say all right you want to work a few hours at home you know you need to come and so on that's that's fine but we can't pay you what we used to pay you because we're squeezed so should couldn't they have discussed that with her the possibility of reducing her hourly pay there are several issues with that first of all they were making reductions across the board so they were forced being forced to make do with less look at her make any sense reductions across the board this was an exceptional situation that faces her they could have made an adjustment they could have said we're not letting anybody else work at home if you have a special problem you can't come into the office because of your child we'll let you work at home but because we're squeezed financially we can't pay you that fifteen dollars an hour i'm talking about her efforts to somehow combine the childcare with retaining her job in some form if i had been representing the company at the time i would have counseled them to do differently none of that  in picking miss wink to have a meeting at all the person that was involved in deciding who from her department would be fired as part of this reduction was her supervisor mash about but he but they decided that she situation it was the fact that like all other employees who had flexible work schedules h r met with everyone at the company who had flexible work schedules before terminating anybody to say ok guys you're now going to have to be in the office five days a week can you commit to that there was nothing unique about the fact that they met with miss wink what was you not how was that close makes no sense what's the difference if i do my my work in the in  the office or if i do my work at home as long as i do my work i don't believe we get the ability of sitting in the shoes of management so long as it's not a for a discriminatory purpose there is but that's the issue but there is no testimony no direct admission that at the time of that meeting she was told we are meeting with you because you're an optimal a well who would ever do that what lunatic find so then we look at the convincing mosaic there's no suspicious tiny she had been taking her two days from home starting in february five months earlier some of his lies clear that five months is far too tenuous is how this time is monday or you're out here and a child that you know who who can you get to take care of a child like that maybe a grandmother i don't know the suspicious timing tracks when she requested the ethanol a leave and when she separated from the company she had requested this alternative work