related to the interference claim some of the undisputed facts are mr casa grande they took medical leave on november second two thousand and twelve at the time did not yet been at his job for one year it is under spewed that on december fifth two thousand and twelve he had met the requirements of eligibility under the f m l a as he had been there for one year at that point he then was entitled to half a mil a protection they could have fired collecting seventy percent of these pay on their sickly programs that write a short term disability so that so they could help other than some other law correct or it's a pirate but instead they kept paying him and he without either of them knowing it became eligible for him from what he became eligible for f m l a they did not fire him and he was never really required to get that seventy percent under the finale correct as the benefits like they've been pretty generous so far so good in the f m l a regulations and the accompanying legislative doctrines talk about that there situations where an employee may get more leave than he's entitled to under the f m l a if this occurs but nonetheless they in the amendments changed the regulations and eighty twenty eight one hundred  twenty five doubt one ten allows him to become eligible for us from l a while already on medical leave but the only thing here that there he's that he missed by not by their mistake about the f m l a was his job protection isn't that correct good because actually he was other than protection for his job he was actually getting more than he would have gotten  a leave up until mid january i agree you don't get paid under f m l a isn't that right that's correct ok but you are entitled to job restoration under the f m l a but i'm saying that's what really was at stake here for him right and that's under the interference is our main claim is that it was like thirty percent for three weeks something like that and then the actual pay for a month that he was tendered but didn't cash later that's the amount of money that we're talking about essentially never came from not having the money at hand during that month is set from january eighteenth until february twelfth there was thirty percent of his pay at february twelfth his short term disability ended and with one hundred percent of these bet right in that anybody ever sit down and calculate what the loss actually was i know there they came up with a figure that you all disagree with but yes your honor in the briefing there is that number and specifically for the period of time from february twenty seventh to march nineteenth when he was reinstated that number is two thousand four hundred fifty five dollars and ninety two cents ok that's from the interference claim that's that's related to february february twenty seventh until march nineteenth ok and then there's some value to the fact that he didn't get the check for a while yes your honor did you ever liquidate those damages and you come up with a figure as to what the the horn was for him not having the check for a period of get three months in the interest or something so to speak  no i'm just wondering if whether this is not big stakes here money wise i'm just wondering did you all have any interaction with our mediation department we did  honor and it was unsuccessful ok it just strikes me as something that could reasonably have been settled he he back at work somewhere is that not correct he is still practicing as an r n and he's he's at work somewhere that is not the ohio health facility right that right and how long was he out of war between the time he was dismissed and the time he got a new job less than six months or ok thank you so question about the the what i thought was an undisputed fact that he was informed that before december whatever the magic date was december fifth december sixth december fifth year december fifth before that he was told that he was going to be ripped his job was going to be posted yes his job was going to be posted but it had not yet been filled so at the time that if it's posted that's notice that he's not the when he comes back he may not be in that job he may just be in a job seems to me like what they were doing not having a great lawyer perhaps or not having talked to their lawyer not knowing exactly what they were supposed to be doing what their what are your maybe you're in court i'm speaking figuratively if you are  t if it what it appears they were trying to do was continue him on seventy percent to live could figure out a new job for him to take at one hundred percent that wasn't the same job that he had before and that they were on that plan before he ever had any rights under f m s unless there's this anticipatory thing you're raising that i've never heard of but might well be true but apart from that basically at the end of december they're on a track which is pretty generous which is we're going to pay you seventy percent until we figure out a job other than the one you already had where you can be a practicing nurse seems to be no longer that his job is being given to someone else he knows that that's not the job that they want him to be in on it because they sent him a letter saying it's not they said their jobs going to be posted says they were they didn't say your jobs for the last thing i not filling it i mean i know it is advertising it saying we have a job out here apply for the first time that he was notified that his job was filled was in a letter dated december eleventh two thousand and twelve which was after he became ethical a protected so at that point if his job is filled then he's entitled to either go back to that job or a substantially equivalent job at the time he's able to return to work and this is where we get interpret that and i don't know i haven't read a whole the regulations or read all the cases but a logical interpretation would be a logical result consistent with the act would seem to be that if they decide before you ever get m l a leave that this isn't the job they want you in but they want you in some job that that's what you would get that's what would arise when you finished your year and became eligible in fact there are cases that say that position that they've taken away from you and you can say they haven't actually taken it away from him because they haven't filled it yet but you could also say they have taken away from him because they've told him they're going to fill it with somebody else harassment after but are you complaining that he didn't get the job back when he was ready to come back wrecked january eighteenth when he informed them that he was able to return to work under the six circuit precedent as they put in the designation notice which is five days after he goes he becomes eligible for f m l a leave per the regulation ok so the defendants are bad on notice i'm sorry judge how it's just it if i understand it correctly the the problem was the list break it down to its parts it was ok for them to fill that position at the time even if they were doing it permanently because at the time he was not protected and we can let me put it like this we can assume that there will be times when someone's out and they're not protected by the f m l a and there's going to be a job there and the employer is going to fill it and that's a moment in time the right time moves on and that same employee becomes protected and it's time to come back so now the employee employer kind of has to find something roughly equivalent right or does the employer have to go is it a springing right where they have to now say you have a right to go back to that job that you didn't have when we filled it in mr guy's grand they was in at the time he became eligible his job was not filled they could thereafter fill it as long as when he was able to return to work let's change the facts ok what now we're arguing about when they actually filled it let's assume they posted it in filled it before his year ok now after his year or he is now covered by the he is now ready to come back he was neither covered by the nor ready to come back at the time that they actually felt it so now is do you agree that they don't have to go and give him that other  they may have certain duties to him but do they have to give him back that job that was filled before he was eligible the job was filled post and filled in there is a legitimate business and yet to do so perhaps i now he he's ready to come back and there are substantially similar jobs there are jobs for him the issue in this case as i understand it is that the employer was simply mistaken and so instead of taking the kind of conduct doing the kind of things that the employer would have done had the employer understood that he was now eligible the employer is rebuffing the overtures it's not saying things like oh ok we know you're covered we have a little problem here we've already filled the job we're looking around we're going to find  substantially equivalent to you we recognize our duties under the act but that's not what happened what happened instead was not covered by the is that correct right is it until he informed them and provided them the law showing that he was covered by the ok and when that point came and they finally realized they had made it a mistake then they gave him a position that's consistent would be offered him some money it wasn't enough under the act and then they moved forward and then you claim he was harassed is that correct but there's  one i have to go back that that's the fact that's missing at some point there's a he can be required to come in with a statement from restocked are saying he's released to go to work and he notified him he wanted to come back to work but then there was a period of time where he didn't bring the statement from his doctor the act allows an employee earn clear to require that yes but it's not automatic it has to be ok so the employer is allowed to do it and this employer did do it said bring us a statement from your doctor that you're released to go back to work there is indeed been out of work off and on for what six months but then employer didn't require that in under the notice requirements i know you said earlier that there might be some bad notice but this is the situation that this court had it was the fed ex where the proximate cause of him not bringing back or bringing a medical certification is because the employer failed to properly follow the regulations in here being telling him that you need to bring back a return to work from your doctor and here are the consequences if you don't and that's what the regulations require to avoid the situation did ask for a statement from the doctor releasing him to come back to work didn't they have generic boilerplate forms that they send that have capital letters in yes in capital letters but that's not the designation notice the so he didn't provide notice of his return to work and early but let me see if i remember this correctly in january he says i'm ready to come back to work and they say fine bring us a statement from your doctor that you're fit come to work and we'll put you will find something for you that probably we're misunderstanding is around or they do not say that but actually they actually tell him wait until you order you till you have a position so you can return to work otherwise your short term disability will end and you're allowed to stay on the short term disability while you are so when it goes on to some time in february is that right yes and then in february he does his research on his own because his fin his short term disability pay stops and he's financially struggling he looks up the regulations realizes that he wasn't titled the protection he was in title job restoration provides that do you know what date he notified them betteridge twentieth your honor ok and so when did they do something in response he was not put back into his job until march nineteenth and why was that why was that and i'm not sure your honor their record didn't show they said that they looked into it you know this is a three billion dollar company with a team of in house attorneys in mr cox grounded provided them the law on the regulation that specifically states he is eligible for us from l a if he hits the one year mark while on medical leave ok so they learn on the twentieth that they had been mistaken and on march the nineteenth they offer him a new job is that or arch nineteenth or march twelfth they call him an offer him a new   is his job back because there are still available positions on that floor and his and start date is march nineteenth he has not offered any compensation for that time period and so he pursues the instant matter and not until june is any compensation even offered but at this point there's a lawsuit there's been mediation and other work done in the case and at  that point if they thought that's why he was entitled to they should follow the federal rules were sixty eight and make an offer of judgment thank you counsel so your time is up and it involves as the court has recognized in its questions to issues concerning job restoration don't believe that there is any question that under from a the appellant received all leave to which he was entitle to at any point in time and under any interpretation of the act that might be applied the claim for someone or ference relates to two instances in time the first being january two thousand and thirteen when appellant presented himself and said that he desired to come back to his to work at ohio health but take that again that was i believe the eighteenth of january and at that point in time he would the record does reveal that he was specifically told that he needed to provide a return to work certificate i know there's been some discussion about the return to work certificate i would suggest that the reading of the regulations with regard to the designation notice of plaintiff's leave as presented by opposing counsel is not accurate the designat that's required to be provided under the act is required to be provided when the lead begins not at the point in time that he became eligible for from the leave in as the court i think it's recognized he started the leave that was at issue in early november of two thousand and twelve specifically on november second the november five he was provided with as a designation notice by ohio health which told him that his family medical leave request was being denied because at that point in time he had not served one year at ohio health in his employment and was not therefore eligible that notice went on to provide in two different places that he was require had to provide a return to work certificate at the time that he came back to his job so it's our contention that there's no question that the return to work certificate was appropriately required in this case but he said that you also told him don't do it now because there's no job  well there he to be clear in addition to the november five designation notice that was provided in that's part of the record that says that he was required to provide a return to work certificate he was told on two other occasions before the end of two thousand and twelve that he needed to provide the return to work certificate the first was in november when his request for disability pay the seventy percent pay was approved he was told at that point in time that he would have to provide a return to work certificate he was also told and have to do with what i just as well i'm just because he was told several times that he was told that he needed for a bribe there were two words if somebody goes and says ok i'm ready to work i'm going certificate or whatever and they go well don't do that now because it's going to mess we don't have a job for you and it's going to mess up your benefits have what it how does that relate to whatever you're saying about the fact that he knew he had to bring it he was told not to your honor appellant admitted during his deposition that the individual who allegedly told him that also told him that you have to provide a return to work certificate before you come back yes  i'm sorry i maybe don't understand the fact that my understanding is that when he first was ready to come back in january he was told don't bring this to to pick it because we don't have a job that's what he  did that this same individual told ok let's assume that don't bring your certificate because we don't have a job when you when we do have a job you will have to bring a certificate february twenty seventh ok and you don't bring him back until the end of march shortly before providing us the notice the return to work certificate and february twenty seventh he had extended his leave with a note from his doctor and this happened in february within a week or two of the twenty seven th extended his leave from march one to april twenty one the one hand we had notice from his doctor that he needed to be off until april twenty and then within a week we were told that he was able to come back on the twenty seventh but sometimes things happen and it's surprising but the last thing you got was the certificate that's right but at that point you were still saying you're not covered right at that point we were trying to determine whether he was covered well made a mistake iraq ok but that's the point you did make a mistake it's not simply that you said we don't know if you're covered you told him he wasn't covered right prior to that we had you on ok so let's say he was covered and you knew he was covered would need gone back to work earlier he could have been reinstated as soon as the twenty seventh once he provided the return to work certificate from his physician ok so then why are we arguing about whether or not he has an interference claim because he was compensated for the time which it took to return him to his position the period of time from the twenty seventh of february through march nineteen well or four he suffered no harm it doesn't know that but that doesn't mean which requires that the plaintiffs suffer harm in order to show a claim of interference it is our position that he would not have a valid claim at that point while he was out of were and you didn't pay him until june so i mean i don't think ok i mean that could be your defense that he but i think you're going further than that right i mean you do wicked nies that they're saying you did not give him all the money he was entitled to that is newly raised on appeal that was never an issue that was before the court below it was employed below and it wasn't argued but he never took part in pretty small i guess it's there but it's pretty small i thought the whole issue in this case was retaliation right and what about and he has that claim to be what about the retaliation claim that's the concern retaliation claim he relies almost exclusively on testimony of two coworkers  is the court ruled below is hearsay neither one of those individuals worked on the same shift as his manager or had any opportunity to observe that his managers treatment of appellant or of any other quote we're going to fully conclude just to cut to the chase hearsay does that mean there has to be a trial on the telly your honor i would suggest that there's still the issue of temporal proximity and that we've got an issue where it was eleven months ten to eleven months from the time that he  went on from one or became eligible for him from one until it was ultimately terminated and beyond that it was also a question of seven what is that saying if you have if you have tempora temporal proximity of these words and you have some evidence that this terminations resulted from f m l a leave for maintaining  that's not a requirement what the lower court ruled with the district court ruled was that at that point in time giving him the benefit of the doubt he would have established a prima facia case of retaliation i think it's pretty clear from the court's analysis of the pretext issue that summ judgment would still be appropriate because we had a legitimate nonmetallic to a reason for the termination understand that you had a legitimate reason my concern is for the pretext and i understood the district court to say  your opponent lost on pretext because the only evidence was hearsay well it's not only though if we assume that there is evidence that wasn't hearsay then what and you can't go back to what the district court it wasn't the real reason and that one of the mansour possibilities under seger that's one of the ways you can show pretext and that the argument that this instead they were lying in wait to try to catch him on little that was the to hearsay other than the testimony of these two individuals there's no evidence that supports it no but i'm asking pardon me i'm asking what if you have that evidence and include it and don't exclude it that's my pathetic do you have in any answer to that or does that the end of your reality and case i think if you just say that's where we hang it then we'll just decide whether it was hearsay and if it was not he'll get reversed is there anything that will keep you from getting reversed if we assume that it was honor what that is the nature of the testimony itself the nature of the testimony does not in fact it's opinion testimony that does not show that he was treated less favorably than other individuals it doesn't show that he was in fact retaliated against that would be our position with regard to the testimony so even if it's admitted and even if it is it is considered it is incessant show any relation to f m l a lee at the idea that's part of it is that they were looking carefully at him yes they might have been looking carefully at him for various reasons they might have been looking carefully at him because it's a hospital and we have important patient safety issues at stake and they'd already decided to replace him before it from l a leave started that incidences but they were related to like when pappas was asked to keep an eye on them to make sure he didn't do you know took to let me know if he does anything wrong that had nothing to do with retaliation doug you're not denying it happened you're saying it's because we wanted to make sure he was doing a good job no i think that we're from time to time because appellee sayers supervised individuals on different shifts she had to rely on reports from people that actually worked on those ships as to what was going on on the ship and from a patient care perspective it certainly made sense that she would ask people about different issues that were very quickly on the interference i just wanted to direct the court to see if for a twenty five dot three hundred d five and this negates what counsel just said about the only time a designation notice is required is at the time you go on leave this is that if any circumstance changes in other words you're now entitled to leave or protection under the act or your dollar you need to provide due notice and they failed to do that and so mr romney's understanding until he did does own research is that he was not protected by the act and not entitled job restoration but a leave in that to return from half a mile a leave he's required to provide a fitness for duty certification and the consequences that come if he does not which would may be a delay in job restoration and the department of labor as a form for this  what is the notice have to do with it if he knew that he needed it and the reason he didn't submit it then was that he was told not to because there was no job and he later submitted it when he realized he had a right to it what is the notice have to do with it they did medical certification requirement is only triggered if there is proper and timely designation notice telling him he's qualified family leave that in order to return he needs to provide a medical certification and if he doesn't then he will have a delay in job restoration and so it's an additional argument  i do want to address the retaliation claim the the lower court said that one comment was hearsay that a comment that miss  rock ten that these were not comments made by the decision maker in that case dealt with whether a supervisor who had a racial animus but was not involved in decision making process those comments could be attributed to it  letters that were sent from mr ayres as well about the entitlement defin ok ok never mind you can make one closing remarks thirty seconds that miss flutie was a charge nurse who worked with mr casa grande day on the night we can shift she said that in seven years she had never been approached by miss sayers who she had worked for for seven years and asked in solicited to give reasons that why mr karr or why any employee wasn't performing their job that she continually did it that mrs continually did it where she felt very pressured that she just wanted any sort of statement so she could have something to write him up and that's the definition of pretext thank you i don't want to beat a dead horse but if the parties decide a fter argument today that it might be fruitful to try settlement efforts again would you let us know or would you go ahead and contact the mediation office i'm still of a mind that this is a case with limited damages that ought to be that you ought to be able to settle i know it's got now into a big into a big record but you know all of all of it could be liquidated to some figure so just if you keep that in mind i personally would appreciate it is there a deadline for them to know not unless the   contact us and we can take that into account the case will be submitted