case racial shark versus lehigh valley health services  district court took them up on that invitation the the limited question on the appeal and admittedly there are only limited questions that have arisen in this appeal but the limited question the appeal is that we've raised was issue where there has been both medical information which there was in this case and the the claimant subjective complaint has said we will consider both of this district court chose not to do that and that i inconsistent with the statute and the regulations so it doesn't matter that your client didn't provide her late testimony or her subjective complaint to use your phrase in a timely fashion or you know she sort of gave it after the fact what the regulations as they existed at the time there's a reference in the read brief to the regulations having changed last december which aren't really pertinent to this the regulations as they exist were that the employee didn't have to give notice until three days after the first miss day she actually gave notice on the first missed that day by providing the doctor's note they don't know but there's the note she gave which odd to me about the case that she provides a note and you know i'm not sure what else she could have done other than post that i mean but that note said two days i mean that if i may charge ministry of the company that's sending me a message that the  the statute is not triggered right because you don't have the three days and then you've got this apparent worsening or continued a problem with her condition over the weekend you're right on wednesday that you're not right on tuesday and friday and monday or preheat previously scheduled vacation day a great but when she returns on tuesday it's uncontested that she says to her supervisor whose first reaction you will recall was i could i could  the time i laughed till yesterday so we have actually based on the subject a report five days and the irony here if you added that that was after the fact it does not because she was she could have when she's given notice and since she was excused for the other two days anyway because of because she previously scheduled was a case in days and in fact in her testimony the deposition she basically said i need to know why i had to do that and that's the important factor here and the reason why i started out by making the rather extensive statement that the court that the this is a radical shifting of the burden of what the regulations impose on the employer because what the regulations and what all courts have said including i may be i may be bold enough to say  where she had a doctor's excuse she took off to sick days she had sick days she already had two vacation days and she comes back to work ok license to employers to turn a blind eye there's nothing unequivocally i would say that this kid is licensed to employ he's after the fact to go back and recreate the status of the words family and medical leave well she never did because if you testified in her deposition it never occurred to her saddle that applied so that's the reason why the regulations place the burden on the employer because they should know that one employee says i've been sick and unable to work for five days that you would employ why would an employer take pay away from an employee because that's what h r departments know to do that's why the burden is on the employer because they have h r people in this case you're not talking case in that that's brought up by the defendants in kong where the employee was given the option of not taking f l a hit and taking a by far much more  because because the only closest we come to a work rule is the one that the one that she's supposed to make a phone call she's make a phone call i understand that but you also have the u s of the counter balancing facts in this case where the doctor told her don't worry previously scheduled vacation leave gets fired and then two days after she fires comes back and says oh by the way i forgot to tell you friday saturday sunday and monday i was in bed sick the whole time and i think i guess the point you're making is that before she was fired she made clear to the employer that she was sick longer than the two days for which she had been excused and i think temporarily even before this program that says to her i could fire you for this i think the way he the way i read the deposition testimony was the literally the first conversation was i've been sick for five days and then we go into a whole other another area and your argument is that as onerous as it may be on the employer the federal for lunch and i'll tell you why i say that because the first thing this prozac does in this case is go where she should go she goes to the h r representative and asked what do i do now we don't know what happened in that conversation but what we do know is she comes back and says well i can't fire you because you were out we do know there was this h r conversation which is the right thing for her to to do but what she should have done was to go to h r and say what do i do it's h r people who really should know in in most organizations that apparently he answer was hey you can't fire her for that but you can fire for other reasons if you have an independent reason in your point is you're entitled to a trial because the record is ambiguous regarding what was the true reason i'll take him take us as a and see what he says she actually would have had the irony she would have been doubly protected because she would have had more than one treatment by the doctor because it was emanations that sort of treatment and should have had the ongoing course of therapy dr twaddles stated  deposition that in a certain sense like this where maybe it would last two days maybe less fight as he would really have had no other basis then to say well if you say you were that sick i can't say you worked and that's again the irony with this case because if they only asked her to go down this down the corridor to see their own doctor on employee doctors we would have not been in the scenario which was their obligation to do they do have the that obligation under the regulation if i can follow up on your vantage point question you're not are you asking that we adopt a knight in the fifth circuit rule which in essence as i understand it says all you need is the employee to show up and say i'm really sick for three days trust me and then that's enough to trigger i for the employer to say well i need the doctors you know that will really be i think you know on the ground what would happen some would come in and say you know i've been sick for the last week sorry but i doubt well can you get me a doctor's note that me that's the right answer you know and the under you get there i think that as a judge part of it mentioned if you are going to analyze this under the downtimes was then the the evidence of the independent basis has certainly then doubt has been sufficient to survive summary judgment under under that standard and so well we we go back to trial on the issue of and basically all the issues of the cats i would analyze it under a direct evidence standard because of the double statements of we're taking this lead into account so if you establish that it's if you accept that it's protected leave and they clearly took that into account and then the question is what you want to chance are you both mixed motive and in the alternative mcdonnell douglas again and again he could call it mixed motive or you could refer you could use that as an affirmative defense and the only difference and it is it is an important difference if it's mixed characterized as that but that's court that we that's not it's not the fourth circuit i except that it's an affirmative defense it would go to liability so i think it's an important distinction and if if you're going to tackle that question it would be fact that is the record does not contain any evidence that a health care practitioner instructed or authorized or recommended that the requiring a strict leaving type notice here doesn't that really kind of contravene that policy your honor i understand the congress's intent but it's a balancing c act in other words you're balancing the serious  emphasis on serious medical needs of the employee versus the employer's legitimate managerial interest in our case again is in our case we have somebody who had a physician who consulted with that position who got a note from that position that said two days gone able to do the work for two days and that's that's what she received she never went back to the position contemporaneously with her return right the question is whether whether as children interprets it earlier whether that doctor's foundation can be built upon by her own representations that she remain sick for more than two days and one of the challenges i think that you have a be interested in your facts what nation is that twenty nine c a for a twenty five point one  which was in effect at the time it's currently i think point one two three that relates to the employee's ability to perform the job that regulation specifically requires that only a health care provider can say that you cannot perform correct correct all right the other regulation the one that applies in this case regarding incapacitation which is point one one require a doctor to do that when a when a very nearby or an adjacent regulation does require the doctor to do it i'm saying when there's competing regulations as a matter of public policy and and under the circumstances of this simply require a health care practitioner to to provide some prove not not a pleading not a brief but some proof that the individual is incapacitated or unable to form his or her work duties for more than three consecutive calendar days but the statute doesn't say that it's actually doesn't say that it never has the regulation but it speaks in terms of balancing i think in order for the balancing of the serious medical needs of the employee with the orders legitimate managerial interests and i don't believe that that is owners or that is going to provide the employer with a way to deny basic fundamental f l y rights to mobile employees it's not that can show up and say trust me right ok let's assume we don't want to go there but you've got the circuit sort of in the middle saying what you're opposing counsel say as i understand it which is look if you have a valid know from a doctor saying you're truly incapacitated for some period of time not the full three days you can build on that with your own testimony are there any circuits that have said u where i were i'm basically this is new ground this is rather exciting and it's very very new ground and again but that's only used to serious health condition and i want to back up a little bit and say ok the worst case scenario for my client you you take a hybrid the thirty takes a hybrid approach says ok you have a basis medical excuse plus like what i call self serving assertions all right but that's enough for the serious health condition you ben get to the issue of notice which is different than whether there is a serious health condition exists and you get to the issue of notice you go to your standards are now asking whether there was reasonably adequate information under the circumstances and that is  says couple weeks or six weeks later he says i would take some time off because i have to be monitored i mean the more heart surgery and employers as who whoa him you know whatever he gets fired all right i look at the circumstances here there's no history there's no present for urinary tract infection or blotter faction this is not a a situation where you have a point where the employer knows that there are medical problems that are recurring or lingering and then  and then you should have inferred a reasonably infer from the news you don't have a long history but you've got a doctor's note saying two days and then that's followed up pretty quickly with the employees saying no it wasn't really two days it was five days problem with that why the wait didn't go off and again we're looking back in time we're not you know we're not in the in the heat of the moment but look at the circumstances here you had a medical receptionist who had to work wednesday and thursday she didn't she got a new thing she had brio illness that was it wasn't more specific than that i understand is a fever elevated body temperature was it so in that set was able to do were duties then she had a long time be cation day's schedule for friday she had a weekend which she wasn't scheduled to work and she had a monday night where she was not scheduled working she comes back until the rational inference when she walks in on tuesday is she's fine yes the problem is in the record said she said oh i was it got worse i was in bed all weekend right i mean you know sumption was she may have gone to mexico for five or six days right i mean if you think if your client thought she was a milliner she gets a two six days she builds them on to her vacation days in the weekend it's a nice little holiday but she comes in it immediately tells your client on tuesday she was really sick all week and then the notes say she was unable to pursue or duties at work today or tomorrow that is correct that's what it doesn't she doesn't have to that's part of the part of the onerous nature of the f m l a is that you your client needs to needs to look into this needs to needs to define based on the circumstances that's not notice i mean it's i'm not saying you need to believe or maybe she was lying on tuesday who knows but why isn't that notice i don't believe that reasonably adequate notice under the surface what else should she have said or done of which i'm aware sends a pretty strong signal to us that when one one four does not require a doctor's note and one one five right next to it does require a doctor's note we cannot impose that requirement on one one for more perhaps it's not a doctor's note perhaps it's just a guess you know information doesn't it could be all wrong it could be something that could tip the balance into that reasonable adequacy because otherwise it becomes if you must get a note from her neighbor right then the nights are now now you've said it could be orally could be from her well that's what we have here why what else could she have said or done when i asked the question a minute ago you said she could have gone back to  is is expert testimony the doctor required or can it be a combination of both one one five says it has to be the healthcare provider one one four doesn't that's again i'm concerned about the fact that you know we we call the law of the law school we take civil procedure where we're used at the tail requirements and leading this is these are just workers out there it's an informal setting lingering we don't want to see that happen but on the other hand we don't want to impose some hyper technical requirement here on employees you know you have to say magic words in order to make this thing work and that i have trouble seeing why what she did is retaliation and interference where in titling of lehigh valley the summary judgment i believe is to retaliation amik is very very clear as to retaliation there was discussion of mcdon deposits whatever but also she did not follow the employer's whole out policy now you may think that's that's unnecessary or ended up moving in or should have been required but she didn't follow it if you're going to be off you call us and you call every day if you're going to be away from your home and he didn't do it and he was fired and i think in judge bench work and i understand your sensitivity i don't want t ambush either i'm an employee but this is a situation your honor where where you have putting yourself in the office manager shoes you have somebody coming back from being away five days two of which were vacationing days and a again it's not as if she was off monday through friday even work week and showed up the following monday and said oh my word i was so sick now she was this was long i mean put yourself maybe thousand and three now counsel posing counsel it doesn't help you out i think it does it should not hostility the word she requested it and she got it well i mean the records both ways doesn't it it could also cut as oh high at that point it actually said the opposite rejected the implication condescending that you could not have retaliated and as absent actually taking of leave in fact the quarrel between he did you just mischaracterize what you're posing councils that he  id and i thought it was a valid distinction but maybe i'm not remembering my opinion as well as i should his distinction is in erdman she invoked it and they pulled the trigger and fired her before she invoked it she didn't take it because they didn't let her take it and the whole thing in that case is it would be absurd to say that you can't fire someone after they actually take it but if you cut them off before they're eligible before they do take here there's no indication of before she's fired what i actually that is that that's the issue that that ultimately should be tried whether that was an invocation whether the at say i was sick for five days becomes an indication is that sufficient information without getting into don't what's of inference and making this the third case where that's where that's an issue today it is unquestioned that under the regulations under almost every decision that i am aware of everybody else is doing but she wouldn't have known to do that because she's feeling fine more or less and nobody says well we really need some more information which i think and i don't i do wrong joe time in your suggestion back to the no decision what are you going to ask the next question for what's the purpose here's the interest i can just let me and let me answer it this way and it will be an answer to that question ok she obviously in fact had sufficient notice information even if it came down to we don't believe you because if they said we don't believe you there's specific provisions under the f l a for what happens and reconciliations and all sorts of things i just want to know my time is up if i could just address the know you all know that the city had not one policy if you're going to be out on sick leave or right after only you have to call us and let us know that we even were you have to actually be there all sorts of things in this it wasn't a matter of circumstances by the doctor i think it makes a difference here fashion that the doctor worked in the practice and said don't worry about that i want you to go home immediately because i mean i'm concerned about you and the deposition pretty much comes across that way this person you believe right away and i think that makes a big difference in this particular instance i do think this is a discrimination case for the reasons that i set forth in the brief and i don't want to belabor that unless the panel has passions about that