but they're sensually the the same case so you don't have to be too too careful to keep them separated i think we know the facts across across both of them but i will call them separately i understood your thank you the morning your hono the instant case concerns ms husband's claims for involuntary leave under the family medical leave act and her claim for pregnancy discrimination under michigan's elliot larson civil rights act the toughman has asserted six issues on appeal specifically she will be addressing three of those issues this morning the first concerns matter surrounding her claim for involuntary leave under the family medical leave act and the latter to concern matters of indirect and direct evidence related to her pregnancy discrimination if the court has no objection mishap i would like to turn the court's attention to the first issue your honour's the family medical leave act is a comprehensive remedial statute that is designed with the purpose and intent of protecting employees from the interference by their employers with regard to the rights that are forty two employees under the act and as a broad remedial statute it must be rights that are afforded underneath that must be broadly construed in favor of employees and any exceptions missions corresponding to the act must be narrowly construed and one of those exceptions or limitations is at issue in this case and this court's two thousand and seven opinion and why song vs dow chemical company the court affirmed the existence of an involuntary leave claim that type of interference theory claim under the family medical leave act that type of claim exists when an employer involuntarily forces an employee to take leave when they are not suffering from a serious health condition in addition to affirming the existence of that claim the why song court also created a ripeness exception to the existence of that claim under the why song rightness limitation in otherwise val involuntary leave claim would not be ripe until the employee were to come back later within the cell same twelve month period request families eve and be denied their full twelve weeks of leave that they're entitled to under the act because of the prior lawful act now that didn't happen here obviously that did not happen here your honor the essence of miss huffman's claim is an interference based involuntary leave plan under twenty nine u s c twenty six fifteen a one there are three prohibited practices regarding the interference there ie interference with rights the restriction of rights and the denial of rights he why some court founded the right this limitation on an employee be denied their rights and as a limitation is or is there for only denial cases and that her interference base case is not affected by the rightness rule when miss huffman learned that she was pregnant she informed her manager jennifer francis of this fact putting speedway on notice that she was pregnant and she was planning to deliver the following summer under the notice requirements for family as huffman did not have to inform speedway how do you define interference and restriction in this context it would seem that they would be lesser portions of denial denial is completely not allowing you any f m l a leave restriction would be limitation we have to narrowly construe that to just those specific cases where rights are actually denied interference is not defined under the and why why song was a denial case is that right that's correct or so you say that the restriction should be narrowly construed but there they are creation of the involuntary leave claim would seem to apply on its face only to a denial missile concerns that the involuntary leave claim can stand independent of denial cases specifically to her interference case when she will put speedway on notice that she would be delivering her child the following summer speed had notice of her intent to take f leave at that time and when two or three months prior to that time occurred they involuntarily forced her to take leave when she was not suffering from a serious help health condition they interfered with her right to take leave when she was actually suffering from a serious health condition with the birth of her child that interference as under section twenty six fifteen a it's not the taking of rights that is given to employees it's the attempt to invoke rights is what i mean i thought the plaintiff and why son had the same thing done was created has a man a war or woman but i thought we had that same pattern and my son sort of you know the employer saying you must take unpaid federal leave a person saying i don't have a condition that would require me to do that you ought to just accommodate me and i mis understanding that case you don't misunderstand was i was and the plaintiff was denied the full twelve weeks of leave as ordered under the act because hofmann is alleging that the interference with her ability to take leave at all was where the violation occurred and that it is tied directly to the interference with the rights and not the denial did they interfere with her right to take leave at all she could have applied and taken leave in fact that's what they wanted her to do but regardless of whether that's what they wanted her to do or not how does whatever they did interfere with her right to take leave of her ability to take leave by forcing her attempt and forced her to take a leave before she was ready to they put her in the position whether she can take her job or stand on her principles that i know i'm ready and willing able to work and i'm going to need all twelve we twelve weeks leave when i give birth but isn't that exactly what why song said to the it but again the difference your honor would be the theory alleged whether it be rooted in interference or rooted in denial and because why song is tied strictly to the denial aspect and to interpret the family medical leave act consistent with its purpose and intent the protections that are forty two employees being broadly construed and limitations being narrowly construed we can essentially parse miss hoffman's case from the weiss on case well i mean with that in a way be rewarding your client for not a paperwork at all respectfully or i would be if you interpret in the act consistent in protecting employees as with the purpose and intent instead of empowering employers to be able to force employees to take leave whenever they believe that the employee is suffering from a serious health condition whether or not that actually exists or not so they are you seeking to limit the a pick up the order you have for why song or broaden the definition of the interference involuntary leave interference claim but we believe judge that the interference of the involuntary leave claim as it stands right now is sufficient we're seeking to limit the why song limitation to only denial based cases and because this is a remedial statute we need to interpret it narrowly that other employed general v z i recall she did not have restrictions as as to moving heavy objects is that true as that's unclear as to whether or not there was restrictions on how much she could lift fifty pounds that is one marginal function of her job but her essential job were related to being a shift leader and being a manager doing paperwork overseen other employees were not strictly limited limited to my and my understanding also is that i think it's under speeded that sometimes she would be the only person present in the store that was possibly ok and the key well if she can't do a bunch of stuff and stuff a bunch of stuff not going to get done and therefore they can't accommodate or they may want to punish you for your honor they transferred her to a ship where there were more than a single employee there but there were possibilities not that they actually happened but the possibility that could be the only employee there these what ifs but in addition to these what if she's the only boy there are other instances where she did have someone or her on the previous ship help her with certain tasks  this for me she did not making it specific those requests at the time that she presented with her restriction choose immediately told not to work and that she would have to be placed on leave until she restriction which would essentially be when she gave birth and there and was it claimed in the trial court that this was a disputed issue of fact as to whether or not they could accommodate her that was one of the issues that wasn't actually addressed by the district court related involved carried by is whether she's actually suffering from a serious all addition fittest or do we form and she was to avoid for the remainder of the pregnancy and the task identified on the exceptional customer experience were she testimony these were tasks that she said she either could not perform or that she would decide if she could perform when she was ever shall just seems like a lousy way to treat a pregnant this hofmann several years earlier when she had an ankle injury they have prevented her from returning to work because there were certain job functions that she could not perform and speedway could and there isn't a parsing in that case oh this notion that there's a interference claim based on denial we've become so identified it is  there's either a denial based or an interference piece involuntary leave well there's nothing in my silence and what we have here is clearly an involuntary leave claim effect those words are used in the that's what we litigated during the course of discovery and that's what we litigated in the summary judgment stage and why i saw it makes it clear and i believe it makes it so clear that the district court felt did not have to rule on alternative because let's say she didn't have a serious health condition i mean under why song she's got to go ahead and take this leave lose her income for that period and then can't do anything about it until she tries to exceed what the federal statute allows and you know maybe she maybe the speedway doesn't make or maybe the speedway only makes her take a fraction of the time the statute allows but she's lost that income but she can't she can try to recoup it even if she didn't have a serious medical condition because her claims out right i guess that's the way it works employer with restrictions that establish in the employer's mind that there is a serious health condition that requires f m l a leave then the onus is on the employer to initiate the can and cannot do at this point but why song makes it clear we we don't i would respectfully submit have a record where there is a genuine issue as to whether or not this woman had a serious health condition as defined under the f m l a only talk about that which the f m a way the regulation says that to establish that with respect to an incapacity related to pregnancy all the employer has to show is that there analysis that we will look to things like the job description and in this case there was a job description that is part of the record that indicated the number of the earth the types of tasks that a shift leader would perform there was also testimony from both the plaintiff and her supervisor in the district manager of these are the things that had they had eight a shift leader has to be able to do and the point of her self admitted she couldn't do that i would not do those things just seems harsh is this why song  peculiar to the six circuit it it's it's not as i understand it but i cannot cite another case of a case at this time to the court from another circuit but i would respectfully disagree that it's harsh and i would disagree for this reason it's a it's a fundamental premise of the law that in order that a wrong is only actionable if there is a resulting harm as my  way isn't judge black's implication correct that being placed on leave without pay is a harm so it may be unfair but the question is is that there's not a general law that says the company can't be unfair right i mean if they would if they just say to somebody you know look we don't like what's happening you're on leave without pay for a week and then you can come back there's no action unless there's a statute that says i would agree your honor you know there is some harm but the question is is that the harm but at the statute addresses it is as much of me as it may not be to my benefit to push back at all on this argument because i agree with your honor but i would i would still say that in an interference case the harm is remember the question is did this person ever seek f m l a leave at a time that they were entitled to it and they were denied because of a wrongful previous wrongful action of the employer until that point in time occurs i don't believe that you have a harm it's a can in this instance because ms hofmann did refuse to to fill out the leave paperwork whether she agreed with speedway or not that she had a serious health condition she left herself exposed because she had no protection under any act she was simply refusing we were saying we believe you need to be off the schedule because you can't perform the job she and she says i disagree with that and i'm not going to protect myself by filling out the leave paperwork for either an f m l a leave or for a we fully briefed it in the lower court and i would submit that if this panel is troubled by the district court's following of the why song opinion you could affirm for right result wrong reason on that that but but in i'll move on to the pregnancy claim because i think it's it's very simple at least from speedways perspective this was a policy that was applied uniformly with respect to pregnant non pregnant employees regardless of whether the restrictions emanated from a medical condition that was work related or not there's no evidence to the contrary we followed our policy by asking her to fill out the leave paperwork she refused to do that we did not terminate her at that point we sent her another letter and said now that you've failed to timely fill out the leave paperwork we're denying f m l a leave you but you may be entitled to a personal leave please send back the certification form so we can make that determination and she refused to do that and at that point human resources terminated her for job a t a legitimate nondiscriminatory reason for the terminations as the scored his said the employer can terminate employee for failing to follow established reasonable procedures with respect to the processing about family requests and that's what occurred here what about the elliot larson klayman and their argument that there is direct evidence of discrimination i guess because the for they sent her for the federal leave i guess in their view mistakenly said that she had requested leave for the birth of a child when in fact she didn't want to be taking that as to why that is not direct evidence first off we i think it's important to distinguish what the argument was with respect to the direct evidence in the district court ok whose opinion is on it's undisputed she did not point to any statements comments or remarks made by any speedway employees that required the conclusion that pregnancy discrimination was at least a motivating factor in the decision to terminate what ms huffman argued was simply this speedway knew i was pregnant and they forced me to take an unnecessary leave of absence because i was pregnant which is simply a restatement of the involuntary leave claim on appeal we get into this argument that the direct evidence is that there would be stakes in the paperwork and it as as the person who prepared the paperwork explained she checked off the box th she did because she's she does the out in cases where the leave is somehow associated to pregnancy so the district court in your view is now told hey it's direct evidence of discrimination that this form misrepresented her desire to take leave that's correct it's also my position that even if the plane of head made that argument to the district court it would not have raised a genuine issue of material fact because he as the person who prepared before me explain well for two reasons first my position would be when you come to the employer with medical restrictions that a stablish in my opinion as a matter of law that you have a serious medical condition you have requested leave under the f m l a this goes back to the request either emanating from the employee or from my responsibility as an employer to offer that leave when i'm aware of facts that that bring that to my attention and secondly the testimony  the person who prepared that form said because ms huffman was pregnant i checked that box off it could be that once we got the medical certification back it would have been more appropriate for me to change that to the other box that was checked on the form and i just don't believe that raises a genuine issue of material fact on the pretext issue or on the direct evidence issue thank you thank you you'll have two minutes f anderson two quick points with regard to the council's comments first with regard to the serious health condition under the involuntary leave claimed judge but you are correct that it is a question of fact both y song and hicks describe that in an employee and employer disagree as to whether they have that there's a serious health condition that's a question of fact not always though i mean you know i mean it's generally a question of fact unless no reasonable jury could find it one of those ways and i think you have a problem here that it is a job part of the job description and move this heavy stuff and i mean maybe they should have been nicer to her and tried to work around it but it is part of the job description she couldn't do it that does equal in capacity and i thought she conceded that in the district court she conceded the task that she could not do our part of her job but the focus for whether or not there is a serious health condition and whether thousand and thirteen opinion in hensel vs clear county road commission which is seven thirty seven at three d ten seventeen lays out how to determine what is an essential job function that court said it's an incredibly fact intensive inquiry generally not factors the job description beam the job description being one of them in miss huffman's case we do have the job scripture and in the lower court record that's record sixteen dash three in which it lists out nineteen tasks that we would concede are fundamental tasks and none of them involve moving lifting or carrying anything they're purely managerial tasks so it due respect to brother council there is a question of fact as to whether or not we're essential for