medical leave act case outgoing judge chief judge alex kozinski said as a lecturer at the state of the circuit for the federal bar association of the inland empire that look not just a legal question but consider the human component of every dispute including the uniqueness background and perspective of each individual involved is not supposed to carry weight with us the thing is in this case there's so much human component to it balance with the law that it's just a very unusual case because in this case on a just for sure i understand what you're saying so you're saying you want to ignore the law and just kill human component absolutely not your honor i'm saying that we have to follow the law or i understand that your honor the there i'm just saying there's a human component to the to the cases in the way they were decided we look at the human component and marcia which is the case that i th we rely on in sam's and there's differences there's vast differences in the facts of those cases well i appreciate every shoot you're going with the human element and i appreciate that but i think you need to get to the law then because i don't think we're necessarily going to go with human we've got to find some law and i guess my first idea is in order to establish this prime of faith should case if you had to establish what did you need to show well we needed to show that the medical certification remember mr valma hosen was just terminated is there again aren't there five things you have to show in order to establish that you can have some protection under f m l a yes your honor and i believe those were met under the medical so i understand you you think they were math but i guess i'm now looking at the issues that you now raise my worry is that the district court said ok i think there's a question of fact as to whether he really provided sufficient intended  notice i think we've got some questions of fact about that and then the district court says but not nonetheless given there's sufficient evidence or there's a question of fact of whether the notice was really  whether they did it right or they don't i think we've got to move to the other issues because you've got other issues that you have to win on and so the district court said was he entitle to believe not entitled to the levy stating that his father did not suffer from a hip serious health condition sufficient sufficient to justify a leave under the family medical leave act they looked at the medical certification which was never looked at by merrill lynch before terminating mr albert was and all but but it seems to me that if in fact you're going to win here first you're not going to win on sufficient notice because the district court hasn't determined that yet that's correct all of the next thing that you're going to look at which is what the district court did the district court went on and said well let's look at the other elements because there are five was the eligible for the protection yeah was employer covered yes was the entitled to the leave that's the third and so the district court went right to that because he whether you provided the sufficient notice was subject to some dispute so now we have to determine whether he was entitle to believe and now you object to going there well i didn't understand the objection because the honest truth is if i look at ragsdale versus wolverine supreme court case it says liable for compensation and benefits only lost by reasonable violation of money for monetary loss as a direct result so i'm going to find out does he have to leave it all  it if i'm going to go on and there's a question of fact for the courts or the court went there the court went there and they found that he had at least three weeks left under the family medical leave act and they said that there was a tribal issue with respect to  but then the court said but i don't think even the child will even all right because there's no medical condition that should a that raises to the level and not only that there's no nothing to suggest the had to be there and how did they get there they got there by looking at the medical certification form which they should never looked at because in this court said in march ek and in sam's that once the employer has required a medical certification and they don't ask for a second one they don't get to challenge whether or not the employer or his family member suffered from a serious medical condition or they can look at the condition itself and determine if it were sufficient to merit it the the i mean whatever the there's a fight about whether there was a real valid certification or whether that wasn't whether he put it in on time or whether he did and whether he ignored all those good helpful hints by his fellow employees to get something done and he didn't get it done for whatever reason question of fact so the bold ultimately is was there a reason for the leave certification or not is there something there that says there's a reason for the leave if the court even there on the other courts have found there's a trial balloon issue if there's a debate on whether or not the on the medical certification or the reason for leave is insufficient or incomplete there has to be further inquiry there was never a further inquiry and here because he was fired for not getting the medical certification in they never considered it it was only after the fact that they looked at the medical certification and said oh yeah here's the reason he wouldn't have been allowed to have leave anyway i mean is like five card draw poker and you get banned from the game after you've added up but it isn't your real problem and i guess that's where my questioning is going isn't your real problem that there's a question of fact as to whether he should have the medical leave and there's a question of fact of whether he need to be there and for those reasons it ought to go back to the district court rather than fighting about the district court making using other reasons for making them the ultimate decision had to be those and all you're arguing  is a question of fact archer well i'm saying that if it's a if if there's going to be a decision on whether or not he was entitled to leave and whether or not his father suffered from a serious medical condition it's not for the court to decide trier it's a tribal issue and the enter jerry should decide that a jury should look at the all of the facts and circumstances you've got to remember this medical certification form was filled out by a lebanese doctor in lebanon you know whether he be incapacitated or not he thought he said well i i don't meant to you know was able to move and stuff he didn't know that incapacity in the form of coronary artery disease you're greatly incapacitated if you don't taking a medical condition is stated without amplification there was a serious need for your client to be there yes your honor his medical record said his medical certification said that he needed twenty four hour care that he wasn't taking his medication that he needed to get on a regime that he needed to watch his drinking and he needed to exercise and that album hosen had to be there twenty four hours that says in the medical certification and told his employer that and i'm like you know in march jack where he just took off to the philippines after employer told him it wasn't going to be allowed my when i asked his employer  was going to take personally and then they came back and said now don't take personally take family medical leave does the certificate indicate that your client needs to be there twenty four hours or that someone needs twenty four hours i remember the mother stated to aba hosen to tomorrow when that your father wasn't taking care of himself he wasn't eating properly properly he was drinking he wasn't exercising he wasn't taking his medication he was seen a cardiologist the medical certification is from a cardiologist related to that heart condition but does say that i don't recall if it says anything about i don't know if it says directly on the medical certification if again that might be  trial court and that appears to be raised here again is that you can usurp the prime a facia case in an f m l a case by simply asserting that a certification wasn't i mean it worries me i know what the a pal i know what the appellant have to prove it seems to me that the district court has already said it's a question of fact at this point whether in fact there was compliance with the notice or not yes in reserve that for something else yes your honor so it seems to me that as to that issue of fact we can determine that we can't get there we've got to send it back unless we can find some other way to do it yes or no so it seems to me that what the district court did is they said but you've also got to prove that you're entitled to the lead and this record said they're entitled to leave because there's no serious health condition i guess i'm figuring i'm having a tough time understanding why on this record there isn't a question of fact as to whether there's a serious health condition yes there the doctor was a cardiologist the doctors said what they said about the problems that existed with the man and then the doctor went off to say what it was the man needed or help inital where every was in the place that he was so why isn't that enough to just meet the standard for denial of summary judgment why isn't that as much a question of fact as the other one yes sure i believe it's because of the specificity of the regulation that we're talking about this the definition of serious health condition has several components which were addressed in the summary judgment papers by the district court and that includes on one prong in patient care which there's no record of any in patient care or on the other side it can be a continuing care for an ongoing issue but that issue has to result in the incapacity of the family member and there's absolutely no record of incapacity well but isn't that a question of fact it's not because there's there's no facts in the record to dispute that the only fact understood that he had this problem it was continuing that he wasn't getting over it that the reason he wasn't get over it is because nobody was there to monitor him that he needed to have medical control and twenty four up servatius of his blood pressure and his general condition he needed monitoring of his blood pressure to avoid the stress he needed someone to give him the medicine because of there's nobody there to do it  this condition would not go away the patient wasn't capable of taking the medication unless he was under supervision the patient needed twenty four hour monitoring to make sure he got his medicine when the me did i mean  i'm all saying that may be wrong but on a question of fact i'm having a tough time seeing what summary judgment yes you are and i and i believe again it relates the fact that this person was not incapacitated for purpose for purposes of the definitions and the f m s life that one knew while would you refer me to so i can look again at it because i looked at the bare permissions and i'm having a tough time understanding why this would not meet it ok for the first definition that i'm looking at is under twenty nine c f r eight twenty five point one one three eight ok so that's the starting point it's an illness or injury impairment or physical or medical condition book i looked at that i'm trying to figure out why this wouldn't be that because there has been no record of any patient care there's an absolute record of that he had a heart attack in two thousand and six there's absolutely nothing that connects the dots between that event in two thousand and six and the condition that he may have had in two thousand and ten counselors your position that when you take the definitions you take everything that plaintive appellants are saying that if you give them the entire benefit of the doubt that they still don't meet the definition and therefore there is no real trial  trouble issue in fact because what they did raise is irrelevant to the legal question that has to be resolved that's entirely correct your honor looking at the certification looking at the testimony it's all undisputed and there's no waiver here because we don't is six to twelve months that it requires medication that it is high blood pressure that it's a statement that the employee is needed for the relative care why does that  need that i like to further direct your honor to twenty nine c f r eight twenty five point one one three b which defines a capacity as inability to work attend school or perform other regular daily activities due to the serious health condition treatment therefore a recovery therefrom and the record absolutely contradicts that any of those elements were met mr of the holes and father walked to his doctor's appointments he had no problems with any sort of hygenic or medical or other needs mr alba husband merely was present during the time that mr of the husband's father self administered his own medications he was present during the time that he fed himself and occasionally accompanied that his father to the doctor's office but he testified that he was not needed to go to the doctor's office he simply did again it gets back to lisa's i understand your position you're saying that make everything they said look at the facts give the best possible interpretation even saying that there's a failure proof here to meet the requirements under this law yes your honor that's right what do you do with these cases that we have the fifth circuit case condition because it involves continued treatment that's out of the o's will they then you've got the haiduk case which says finding out high blood pressure qualifies as a chronic health condition when plaintiff was diagnosed sillies two thousand one visit his cardiologist and took medications what do i do with those cases i think those cases can be distinguished i think blood pressure can be a serious health condition but the court's been very clear that you can't just put a label on any one medical condition and hold that universally that will satisfy the serious health condition element in a particular case  and so the court has the record that's before and then secondly another issue that the district court noted was that mr album hosen by his own testimony did not provide the sort of care that is covered by the f m l a and that's another equally important reason why this case was dismissed the decimal a going to specific in terms of what is covered when we talk about care and it does not encompass simply as mr all because and testified babysitting a family member well but i mean i know that you can always say babysitting and i often use that i'm talking about what i have to do when some of my children or there's no i'm just sitting there with them rather than doing and i feel by the medicine the appropriate time but if i look at twenty nine c f r a twenty five one twenty four it says that a family member has to encompass flaws physical and psychological care and then it says it includes situations for where for example because of serious mental condition the family member is unable to care for his own basic medical hygenic or nutritional needs are saved he is unable to transport him so over the term includes providing psychological comfort reassurance which would be beneficial to a parent with serious health condition who is receiving care now it seems to me that when i read what the doctor said patient needs medical control needs twenty four hour observation needs monitoring of the blood pressure and avoid stress needs someone to give the medicine on a regular basis then i'm saying is that at least a question of fact at that point your honor what was provided by the doctor is entirely for raft of references to psychological comfort or support the statements in there are clinical in terms of observations of blood pressures and things of that nature it doesn't indicate in the certification that the patient needed that type of assistance and it doesn't state that that was mr of the husband's judy was to provide that type of comfort and support we're talking about the monitoring of blood pressure let me ask you some i'm sorry can i i don't i don't see how if you look at your two twenty which is the actual certification patient needs twenty four hour monitoring to make sure he gets his medicine when needed that's what the doctor said how does that square with what you just said your honor i was looking at tonight seen here two nineteen patient needs medical control and twenty four hour observations of blood pressure and general condition and that does go on as you reference your vet doesn't square with what you just said what your honor i believe what the point i was trying to make is that the types of observations that were observation that's referenced here appears to me to be of a clinical nature in terms of monitoring you know in taking medicine and the blood pressure it does not to me support that he was there to comfort and support the patient i want to turn your attention to a slightly different issue that let's just assume argue until for a moment that we decide to send the issue of the certification like back to the district court on the basis that there was indeed a material issue bac you got a promissory note here now this is of course very common in the securities industry somebody somewhere else maryland shore whomever says come on over here we'll give you a big bunch of money you're to pay it back over a period of time for every year you're here we're going to bring give a certain percentage of the sim that's what this is what he now has been terminated i believe is that correct yes  ok so if we were to take the action i'm just argument though that i just mentioned what happens to the note in the meantime your honor i don't believe that there would be any reason to reverse the district court's ruling on the  what it does not specify the grounds for termination or impose limitations on the grounds for termination it simply states that it becomes due upon termination of employment ok so let's just say argue and that ultimately note your honor i don't believe there should be any impact on that i believe that the district court's ruling on that on the summary judgment should still stand because the note didn't have anything in there about it and because he was a math will employee yes right if he's an at will employee are there are exceptions public policy considerations that one would look at if one were terminated as in that will employee that he could then allege to iran for instance if you terminate and that will employee because they violate the law we were done do the terminations if you terminate an at will employee because he performs a public duty that he should perform we do the terminations why is this not a situation where the employer he is taking advantage of a benefit the government gives him as he would if he were going to go sign up for disability or other things under the law and what he's done here is trying to bail him self of that public benefit where would that be something that an at will employee could be terminated for no your honor but this is an employee who doesn't have an a handbook which at some point was argued to be a contract but it states on its face that it's not a contract but i was my understanding and of course you'll have to correct me if i'm wrong that there are defenses in and that will employ determination that had don't have to come by contract they come by public policy defenses and i'm wondering if he doesn't qualify for one of those regardless well such is the interference claim that right he's asserting so i think that that encompasses that portion of his claims the portion of his claims that relate to contract were based on the idea that there was an implied in fact a contract despite the fact that he signed it opportunity if you want to rebut this ok very good thank you the case just argued is submitted