court excluded certain testimony that was not provided to discovery is that a part of this that is part of what the governor general defendant in this case is arguing in this and this film and its character right there both everything that is wrong and the district court granted a motion to strike the evidence that medical residents that by my reading of the record was never offered by  able to consider them all together but at a minimum and depression and anxiety and well i'm sorry at a minimum of depression because i know that pops up in these medical records and yet smith was talking about she wa argument is relatively strong on serious medical good should particularly given on the a da that the district court found that there was a disability but what i am concerned about is the failure to go to matrix particularly since her immediate  number one that obligation isn't triggered until dollar general in this case which is on notice that she referenced it's condition gives her individual life notice o what authority you cited for that well that's the regulation itself requires not only the eligibility notice but also written notice of her rights and obligations individually since you were at the time that she  notice on the are you sure that subsection d what you and i were just talking about i thought it says you can require the employee to follow procedure that sounds like the burdens on the employing are we really i'm sorry mike i'm in privileges of employment in other words a reasonable opera reasonable accommodation is intended solely to level the playing field if an employee needs a reasonable accommodation and doesn't get it that means the employer has failed to level what is an an equal playing field leaving the employee to struggle this by itself is an adverse action and the ag a does not require any additional adverse action on top of that consistent with the statute and the regulations you say there are separate right i'm sorry you say they are separate to right what separate ok failure to carve a claims different from a separate from a discrimination claim that what you're him it's discrimination in the terms conditions and privileges of employment subsection b defines discriminate through examples all of those examples show an adverse action regarding the terms conditions and privileges of employment for example section b one talks about segregating employees in a way that would adversely affect their opportunities or status section before talks specifically about denying equal your time short do we have two lines cases on this or not only in the vaguest of ways the cases such as funny that line of cases they purport to lay out a standard where for a reasonable accommodation claim it appears maybe you need some separate kind of adverse action however fancy which one you think is first because we say the first one wins well i think in terms of that line of cases fannie is first however so which which which wins separate of the say there needs to be only one adverse action the e e o c does not dispute but there's an adverse action requirement what we say is that requirement is satisfied with a denial of a reasonable accommodation and that line of cases that we're talking about in those cases there actually was some kind of clear separate adverse action to look at and to talk about there was a demotion a constructive demotion transfer so that's what the parties focused on and that's what the court focused on this court has never squarely held if there's nothing like that to look at that a failure to accommodate standing alone cannot be enough and we have some both phrases are you familiar with the both phrases necessarily because again the only purpose of a reasonable accommodation and i'd like to point out what the regulations say in order to define a reasonable accommodation and their fortune understand what the statute says by saying that's a form of discrimination the regulations have clarified that there are only three kinds of things that can ever qualify as a reasonable accommodation counsel i want to ask you i got to say that i didn't understand part of the e e o c is brief because there's some argument in there that the district court did something wrong but the district court from what i can tell did exactly what you're advocating treated the reasonable accommodation and the constructive discharge independently in other words there is that unfortunate both quote in the district court's order which judge benton referred to but i don't see any reason for believing that they were treated separately that's exactly what we're arguing against and shouldn't be treated separately the reasonable accommodation is failing to it is itself the adverse action there doesn't have to be a constructive just charge that's my point my point is my but that's exactly my point my point is that they set the record said look reasonable accommodation would be one way to have an adverse action you there and dismiss that and then the district court when it's a constructive discharge would be another way to have an adverse action and then said that there's reasons why that claim failed as well so from what my understanding the district court again absent that and went and unfortunately was about both but a reasonable accommodation would satisfy that instead went straight into let's talk about constructive just charge let's talk about emotion and that was the mistake the court should have said ok if i want to use the language of any yes you need an adverse action but here it is if there was a failure to accommodate full stop does that answer your question yes that's right three but i understand your argument thank you i see my time is up claim because it was properly dismissed on the basis of finding that miscarriages and did not suffer from a serious health condition and it was also proper because she did not properly request f m away leave in the m required not only by dollar general standard procedures that she was made aware of when she received four separate handbooks all of which she acknowledged and their opening brief they acknowledged that she was aware of those policies and knew what contents were contained and out of the law seems to put some burden on the employer and has operates with the position that employees may lack some sophistication in dealing with how to activate f m l a and that if the employer is put on notice that the employee may be seeking it or may desire it or may be it may be eligible may be able to before to take the initiative to advise the employee of how that those rights are to be accessed and so in this case when the plaintiff says i want vacation i have in trouble this is this is i'm having a rough vacation would wasn't that enough to put the employer on notice of what the employee might actually be seeking is making a request for an familiarly judge a believe we're talking about the numbers of facts that you just referenced really relate in a large part to the failure to accommodate crime because the material facts that relate to the f m l a claim and i'm not trying to avoid your argument and i will do my best i'm not making an argument i'm asking address your position your question i should say  judge there is an obligation on employers and dollar general has fulfilled that obligation time and time again as mysterious and said she was aware of the contents of the handbook knew what those were when she specifically reached out to her manager and said what about at them ellie she said read the handbook it's also undisputed that a meeting that took place later her store manager said call h r the regulation we the posing counsel exists for this very reason and it's because and i'm going to refer to the opening brief of miscarriage since counsel who says the challenge before this court is great and i'm paraphrasing because it must navigate and complicated maze of regulations and statutes to reach the correct result when it comes to f m alay leave this provision was adopted specifically for this scenario the regulation is adopted for this scenario where an employee does have a burden to reach out and follow the procedures that exist and that goal was not that well does not exist to deprive them of f m l a right it's to ensure that they're at them away rights are protected we are dealing with a store manager a front line store manager at a retail store that's being required to administer the ethanol at them away which all here acknowledge is incredibly complicated and we would not be here today if she'd picked up the phone and dial the phone up she said she didn't look at the handbook because she didn't have it at home your honor this case also i know it was not from the circuit but the current case is directly on point vs dollar general case is directly on point we have an individual who is an employee of dollar general who says my manager told me that i couldn't take leave and so i didn't follow these other procedures your honor i think that the law is clear on this point there are no exceptions it can be invoked that would relieve her of that obligation we wouldn't be here today i contend had she just followed that one step which she was repeatedly told to do in her handbooks that she was given an acknowledged the response from her store manager read the handbook which would have directly directed her to the correct result counsel which case did you just talk about its crank v dollar general it is a district court case mystery court michigan ok yes proceed and your honor i would contend that that is a decisive issue here because if a employee can go to their manager and raises issues be directed back to the company policy many times and then shift the burden to the employer the exception we've created to the regulation has just swallowed the rule and i would contend that that is not what this regulation was adopted to accomplish it was to ensure that requests for f e m a leave are not being handled by front line managers if a company wants to go through the expense to have specialist it's to ensure that that complicated issue it's directed to an atom away specialist and mis gerritsen it not take any of the steps necessary to do that and these steps are minimal and she was fully capable of lester unusual circumstances now there are any unusual circumstances in this case there are no unusual where the regulation has a big unusual circumstances exception at the end it provides a specific example such as the employee attempts to call the number that they're directed to and no available to answer or the voicemail box or that number is full and the employee is incapable of reaching out to that that's the type of aseptic exception that would not apply in this case and even though there's many allegations in this case and i must say that to reach the correct result with all of the allegations that have been thrown and referred to as fact the court would need to do a complete analysis and refer to the record to see what truly and is not evidence that being said your honor i do think that that there are no unusual circumstances here and cronk the case i referenced earlier the employee was specifically told she you don't know we're not going to let you take  we're not going to let you take leave the manager told her that twice that she wouldn't be allowed to take leave but she was familiar with the procedures that she needed to follow and she never took those steps you never exercised any personal responsibility whatsoever to request at them away leave and that was dispositive to the court as to the second prong of the f m a way analysis serious health condition and i would say your honor there is a distinction between the standard that applies or whether or not there's a serious health condition and whether one has a disability or usually a disability is actually a higher standard because you have to show that your you can't perform a certain number of daily functions serious health conditions just seems like a much lower standard the one distinction is so many things after the two thousand and eight amendments to the broadened its reach and the difference is also yet them away specifies in very objective standards what has to be met in order an employee to qualify for a family for example under the chronic conditions prong which is the one that they mainly argued in their brief and focused on anxiety which i thought was interesting because here today they shift and said our strongest one is depression which is interesting but to have gone to the chronic conditions prong you have to have treatment at least twice per year or that condition the individual has to seek treatment twice per year for that condition and there has to also the only time that she sought treatment may twelfth is the time frame in which she sought treatment for anxiety that is the time frame in which she went to the e r and then she went to a primary care physician immediately after that even though the records say you have seek in three or four days she was released with no restrictions excedrin so i would contend your honor that she doesn't meet that prong but since i am running out of well quickly on that point can't you just treat the three conditions sort of together i mean i like it least anxiety and depression my understanding of having sat on a lot of these types of case over the last eight years those two run together are not so sure about headaches but if she was being treated for one then it seems to me that that you just treated together judge i'm i'm confident that you've seen a many panels in which those conditions were together what is very unique about this a d f in the late cases we don't have one word of testimony from a physician now those are separate conditions they do not the existence of one does not show that there's the existence of the other they can become more and be coal linked but there would need to be some evidence of record from a physician to tie those together the fact that they co exist it is their burden as the plaintiff to show if they want to contend these are considered together they were considered together in a prior case where is the medical evidence in this case to show that and i'm saying based on the record judge that it would be inappropriate for this court to reach the legal conclusion that she had an overarching mental illness that exhibited the symptoms of both and should be treated as one i think this comes back to the record and what it does not show because while that's possible maybe if she had had a test of her physician testified he would have said yes these are but that's not the evidence before the court all we have is references to these inspiring any medical records any medical evidence in the record is the medical evidence in the record yes your honor summarize it i'm sorry summarize it the medical records that are especially the material parts of the medical records there are family practice physician records who were observed primary care physician and those records summarize a history of many different things sinus congestion a concern about whether she may have breast cancer they refer to depression they do refer to headaches but they do not refer to they don't refer to these as related conditions and she also has the emergency room record which is emphasized at great links in her brief but if we look at that record itself it says she was released after one hour she was treated for gastric reflux for her kid just pain was treated for gastric reflux released within an hour and told to follow up as needed and so your honor i would contend that she did not follow up and seek to call matrix because the medical evidence even before this court suggest she may not have qualified that's not necessarily relevant to this position but with my remaining talent to talk about the  sort of focus you and if possible because there is one thing that bothers me very much about your client's position on the a b a and that is the district court decided that it was a disability and this exchange of tax messages and the allegations could raise at least a specter would be an end run around the f m l a but the specter that she was asking for reasonable accommodation in the form of leave your honor she did have numerous conversations with her store manager  which she complained about various conditions but what this also comes back to in the district court was correct in focusing on what are the the true established facts of your honor of reserve sorry i'm used to i lost my train of thought with the yo no no that's fine song the reason accommodation point i mean a reasonable accommodation would be leave you say look i need a few days off to get my life in order i've got a serious medical condition and it's a disability and you're stuck with  district court's disability finding has no cross appeal here it says it could potentially qualify as a disability of the summary judgment states ok judge so the issue is what we have is this disability it could have a disability based on the medical record that was presented the e r record that could establish that the manager didn't know that but she had complained about many different conditions to her manager many different conditions over time what did this store manager see she shooter strolling up to work every day unimpaired she showed her showing up performing her job duties without limitation she rarely missed work and the key is getting this within the context of your this court's opinion and rask because the issue is this condition was not open obvious and apparent it's a mental health condition and she exhibited no symptoms and this is undisputed at work knows symptoms were ever exhibited it were how many understand this why does that matter if if she comes in and said i have got these conditions i've been in the hospital or whatever i need some time off and the district court again found that the disability goes forward why should we send the whole claim back and allow the whole thing to go forward based on the fact that your client did not engage in any kind of interactive process didn't say leave isn't possible but we can give you time to take a nap in the back broom if that helps or something of that nature your honor my client did engage in the interactive process the record shows that there was ongoing interaction with her about these issues from the outset she discussed with her she did director of the handbook at first that's one form of interaction she told her to call when she went over the policies with her and i would say your honor that she was accommodated the district court found a neighbor argued that the district court gave her off the twelve and thirteen the record also establishes it every time this curious and asked for time off every single time even though she missed work really it was always granted never once was she denied a request to miss work except for once and the one time she was denied the request to to not be president work was on the fourteenth when the undisputed facts show that she was the only key holder available to work that day and without her being present the store would have had to close so your honor i would say they was interaction there was accommodation and the form of each time she asked even when she wanted to leave for no reason and didn't even provide an excuse or store manager gave her that time off your time sexpert up i apologize i was carried away in completing my answer to the question your honor thank you very much pleasure being here the the the problem here for dollar general is the second reason for interference the fact that she was told by bell that there was no leave of absence and she was told by bell that there was no that she was in can be founded in the appendix thank you hundred thirty three and thirty two thirty four she wasn't asking for vacation she was just doing that in this instance because that was all that with left her she was told she