i was on temporary reserve status she suffered an acute episode of a major depressive disorder that climax in march and april two thousand and fifteen as you've seen from the breeze odeon it odeon i failed to properly handle what could have been a sort and we also are here on summary judgment on our family interference claim and our wrongful use of the employee assistance program which i refer to today's v a p in a hiring decision because our no facts in dispute and judgment that if an employer fails to provide definitely notice required by the code that alone is sufficient to show interference in this case the united i've been identified her disorder as a family qualifying and certainly did not provide prejudiced the requirement that she use her annual leave instead of sick leave when she went out in leave on the fourth was also prejudice if she had known that she had the right to take sickly if she were not in need to expend her annual leave which could be paid out to or when she left employment the next march in two thousand and sixteen l o d i's defense to this is that my client did not have a serious health condition which i find ironic at best since they claim they did not hire in july because she had or because she was not performing the essential functions of attendance but they say she she doesn't have a health issue in april at the height of her at the height of her depressive episode when we have conceded that she was not it would perform the function of attendance during that time period that three weeks time period basically under the regulations of the f m a way to show the serious health condition all we had to provide was that client had a chronic condition which i deny admits that she had as depression and such a condition and that she was unable to perform the functions of the job which is found this is a twenty five dollars one twenty three of the family regulations if the health care provider finds you're unable to work which we clearly had here as hannah had to medical providers of hers recommend or prescribe that she take the leave that was denied similarly are a family retaliation claim of non retaliatory reasons for that given all of her absences and tardiness despite best efforts to accommodate her i mean how many absences and tardiness and failures to comply with the combination should she have gotten well your honor as you are going to every if she was not provided schedule until march nineteenth she was  that must be why you say that there in your brief you say you only identify to an excuse absences and nine instances of failure to report those must be before april ninth because i count up at least seventeen and even of absences were a direct symptom of her disability and we can argue about i was going to get to this later on the rehabilitation act but this court has found that when a condition like absences is related to a disability then it's a matter of two things on that my client is in the e p referral has already disclosed her employer at this time that she suffers from major depressive disorder and that was the cause of her problems she says that they cite that aren't her supervisor but were there al depression makes it hard to function depression makes it hard to report these were tied to her depression all of these incidents were tied her depression but i wouldn't want to say what's under the f m l a the employer has a duty to inquire and this is the miller case on each requested leave so every day that she requested leave they sort of looked at it individually is this for depression is this for some other reason and we're not here to claim that every day was depression they could have exploded some days probably i think march thirtieth she was out for construction she stated that but the large majority of this these absences were absolutely because of her depression and maybe as the psychologists also said and her sworn statement and in that situation you have seizures an f lip simply a church or i think you know more closely connected then the effects of depression to the situations we have here so do you dispute that the employer was not able to consider the effects of your client's condition in its decision making your honor it no we believe the employer could consider these items that's that's not our point the point is that it's a matter of degree and that we found these to be de minimus not a fact question that's our position on these and believe in attendance so we wanted to be the minimum and so while they could look at it it wasn't a big deal basically u question of about that but that wasn't the basis that you order the basis of the order at least on the non higher calls was pretext and you argued that it was pretext when the employer gave the non think i may have lost your if i may have i'm sorry was a clear i can understand how the degree of the absences would be potentially relevant if the district court had ruled that your client was not qualified but and i'm not talking about f l m a i'm talking about a non hiring plea but that the district court ruled on was the pretext claim and that seems like when they give a nondiscriminatory justification i don't see how that agree it would create a question of fact about that if all the reasons given or due to not discriminatory reasons what you are we are argument is you cannot separate al her depression from the symptoms  disability like martin's and the epilepsy case that you reference we don't see a distinction between mortensen in our case the depression causes insomnia depression cause you to be unable to report on time i think that's commonly known how do you how do you square that with the n me a performance improvement plan that is not the case here all the evidence shows that my client desired to do the right thing it was against her volition because it was her disability it's no different than saying to someone who has no legs walk to the second floor they would like to get to the second floor but they have no legs the only difference here is the mental condition so you don't readily see it it's not physically maybe apparent but that's exactly what's happening she was trying to the right thing it was not willful insubordination like the noise our case so is the issue you're making not that you can't separate the but that your your clients are not of the same degree as well i would say it's not in the same kind because we'll insubordination is very different than you know pretext because the court has mentioned that in the trial court didn't mention pretexts at all and that is largely what we rely upon to show because this is attendance was so linked to my client's disability that the employer should clarified or at least calls into question that it was not the disability as opposed to the a tennis issue and here we have mr ewing saying in a sworn statement i didn't even know she had a disability therefore i could not to base my decision on that as the court said of annoy once you're on notice of a potential medical issue and you don't inquire and you don't provide them the employee notice look we wouldn't be here today if they had provided my client notice of  away and they've done second opinion on her doctor's report instead of using this bogus e a p counseling which was really just a pretext to get her to stay it works because they thought it was better for her to be at work cannot isolate a single woman at home which she has th super her supervisors allowed her to come in at ten am which is significantly later than other employees this court and whole thread i hope i'm pronouncing that correctly has said that for example moving an employer's time from having already as you can see this she had a diagnosis of chronic depression correct right right that's correct ok and then you worked it out where she could continue to work with what you call a combination by adjusting her hours of reporting correct you give up on time it's like telling some i would depression why don't you just cheer up they can't because they're depressed it's depression that's the problem is grayson is you're saying well we gave her a chance to come in at a level well she still couldn't give him  not traffic or migraine they were related to her home renovation i'm glad she said that because you know this is you can consider the effect but you can't do it by saying when you are the one part you're responsible for some of the affects and this didn't meet your standards effect of late those kind of things and then when she's with a stellar record every bad on a panel say this lady is like qualify on steroids like know what she should be here tomorrow right and then you say oh no we're not going high because when you were with us you do care a bad attendance record because you did she was on a depression she should have kept her there when she should have been at home trying to get well and you know it's really just a case it's really horrible case because it's a situation where in it when you basically say and you don't get hired that i argument the opposing counsel mike i'm happy to address i do just want to make sure that i address judge gregory's question on the rehabilitation act which is that under this court is i agree it is a difficult case and and but under plaintiff's rule the problem with plates of theory is that what it would mean is that a national security agency couldn't take into account recent significant attendance and reporting problems which are documented at j a for twelve and fourteen as lacking from january fifteenth through april when deciding to make permanent harm position and the slots an official made clear at j a six thirty five thirty six and in his deposition testimony such as that j eighteen nineteen that he was open to hiring her she'd only been back after a month he said she has eight months left in her term i remain open to hiring her for another position if she applies when she has a demonstrated period of dependability and she didn't apply despite the fact that as plaintive admitted in her deposition testimony at j a thirty one through fifty four her supervisor kalar kelly told her that that was the reason and in fact encouraged her to apply if she could have a period of it  practice have given her notice the question of whether she was incapacitated for purposes of the f m away is a different threshold question and that and regulations is defined again as an inability to work or to perform other regular activity and have an so at least a question of fact as to whether she had an inability to war so as we discussed in our brief the contemporaneous record evidence and what she says in her own brief is that even during the the plaintiff herself says in her opening brief that she was able to complete all of her work and and the contempt and right before she goes on that i leave that she's given she e mailed her supervisor to say i'm going to go visit my brother in new york for a few days and absolutely so she says that she was prejudiced in basically three ways but she says she was primarily at the podium today her counsel talked about that she would have taken a different sort of life if she'd known and that's actually not correct under the f m so what plaintiff herself says is the reason that she didn't take the leave is because she was worried that i had so are told are actually within three days of when she first asked for leave on april ninth within three business days her supervisor ar reason that she says and including in the reply brief that she says that she would have taken that leave a sick leave as she would have then known that she would approve protected even if she did the fitness exam but that's actually not what the family says so at twenty e twenty six twelve d to be the family specifically says employers are to provide i can at their option provide paid sick leave our paid medical leave and any situation in which such employer or cannot be required to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such people and what that might means here is because under normal sick leave just you know i'm feeling under the weather i haven't been diagnosed with anything but i'm going to need to take a month to or you know a month off of sick leave i've got a really bad flu the employer here could still honor its regular sick leave policies require me to take a fitness exam upon my return just to instead of sick leave is because she was worried that she might have negative consequences from the fitness exam upon her return that finesse written exam is required when any employee takes sick leave of more than two weeks whether that sick leave either the f claim sort of come together which is that there were that she was there's no evidence that she wasn't higher but what about this reason about as if she had been a man so you have been allowed to go home so that argument goes only t with respect to her supervisor art she never said that with respect to the actual selecting official mark you mean so it wouldn't go to whether or not mark ewing acted pretext really when he based upon the record evidence and in front of him including an  so you know i would disagree with that what they thought that they were doing as as is true on the as in the face of the of the a p referral as they weren't sure what worked what was actually causing her absences because sometimes such as when she didn't give an example or when she generally told them that she'd been diagnosed with depression was having trouble getting out of that it might have been related to depression but other times in the it wasn't just that she was calling in and saying i can't come in it was sometimes i'm doing home renovations again that's medication for that depression and so that's precisely you know purportedly confidential information that and the only thing that plaintiff has actually identify that would have been unique information is this question of whether are or not she was concerned about a paper trail my client and her doctors have testified and is in the record were absolutely calls by her depression one of those it is one of the reasons they are doing that is because she keeps in they be this is part of the it's not untrue but it's also because of her depression that hit her thirty minutes late enough the door and she's not going to disclose that it's not fair to request that of her and these are supposed to be put in e mails as as they've conceded we do dispute this this factual statement that you miss five days after the reasonable combination of foresight she agreed to put in many e mails right she agreed that was a reasonable accommodation correct not to put her status of depression in e mails she agreed to notify them via e mail if you're going to be late or or absent that that is for a certain time of day yes yes and i want to say i mean the important thing about this resume accommodation the first one of march nineteenth was that she was going to get a phone call at eleven o'clock and she was late they never followed that not one time never told her one time now i think i agree see the court said agree that might not be a reason accommodation they agree to it ok so if you agree to it you have to comply with it that's what the law says it they don't have to agree to it but they did and once they did they didn't even try to comply with it and then they get you get your work done you come in whenever you want i mean that was the schedule up to march nineteenth that as far as my client knew it then they say well you can come in whenever you want me to come in at ten it really wasn't accommodation that was we're getting more strict for making you come in earlier and now look  they care about how many always you spin their work and then she had so much annual leave that you could say for weeks because she built up so many hours working on the snowden matter where they were about what time she came in and then in terms of flex time they are right now but was she said she had depression it was different then that then she has to get in a ten and in there they said they would help her transition they didn't and then when she when she was failing as the court pointed out yes relief they denied it and that she was denied the hiring for the cyber position based on her absences april ninth to may fourth after she was denied interfered with her after that interfered with her f mily if she also had increased medical costs because of it should go back to her unique case and we have moved for summary judgment on this issue of the medical examination because it was used in a hiring decision there is no way to dispute the markings email sent on june thirtieth once all the leave issues reason accommodation issues were taken care of sent to the principal deputy director odeon i was about a hiring decision that's all that e mail could have been and was and it is inappropriate to use medical information in our decision whether it's helpful medical information or unhelpful medical information doesn't