required defendants first accommodated mr p d for the first eight months of her employment and then their broccoli stopped after miss phoebe had a medical leave after she made a three page written complaint and after she removed her accommodation request my impression is that before she went out on medical leave she was not scheduled to work on wednesdays which is the day that she had her physical therapy well phoebe was not given wednesday's but miss phoebe also requested the medically required accommodation of being off on days other than wednesdays for medical management and medical treatment so it wasn't just wednesdays that was plaintiff's accommodation requests it was also days other than wednesdays and this brings us to a key point defendants to merit point system didn't just give plaintiff negative points because of wednesdays it also gave plaintiff to merits for medically required absences that occurred on days other than wednesdays and those are merits lead to pla n they were certified in addition we have the leave of absence stockmen's which state agoraphobia they state panic attacks they state that they state several things and also state inability to anywhere in the record here is the answer someplace in the appendix or something where that show your honor what i was saying is that the doctor's notes this is not the saying separate from the leave of absence lapsus papers the doctor's notes from steinway family services which shows absences on wednesdays and days other than wednesdays those documents were included in hundreds of pages of medical documents that was an emergency hospitalization for hypertension hypertension is one of the disabilities that plaintiff requests an accommodation for that's in the leave of absence papers that's in plaintiff's legally protected complaints so especially the written complain which defendants can argue that they did not receive if you remove that march tenth absence plaintiff did not have enough absences to be given a warning and certainly not to be fired  we can see that emergency hospitalization for march tenth and march eleventh march tenth as of sunday march eleventh is a monday again showing absences medically required that were not on wednesdays that's a three forty five through police as i recall when when your client was given an opportunity to go around lunchtime for physical therapy your client would and predictably take off the rest  then you're then you're not qualified for the job well actually you want to somebody has to be manning that counter you know of course because being a minor this was macy's in clinic there were several employees there the defendants i see that i  him thank you have the defendants defendants were able to accommodate plaintiff they did not claim any reasonable any hardship so plaintiff was able to do her job and plaintiff was not able to work the entire days on wednesdays pilot testified to because she was dealing with very significant stress during those therapy sessions on wednesdays she could not have returned back to work in addition if your honour's look at a one sixty five which is to find its point system they marked her absent and gave her to merits and several days other than wednesdays that were medically required absences the hospitalization we mention there's also doctor's notes showing that plaintiff had to see  her doctors for medical management and otherwise and these medical accommodations were requested a leave of absence but in addition defendants claim that that plaintiff her leave of absence that she was on medication that people saw and medications and that she was told to complain and that she was told to hire a lawyer not the court claim that this somehow is a protected activity all of this is protected activity that were hard pressed to find any activity that protected so that's a basis of course for not only retaliation but it also undermines defendants claims that people within the field who made the decision did not know about plaintiff disability and her complaints because her legally protected written complaint was given to the people in the field in addition to court cases erroneous lee we believe defendants claims which were not backed up by the record that somehow because of plaintiff absences that again were medically required including her hospitalization on march tenth that's a basis that she wasn't qualified well if we're going to base medical required absences on her not being qualified then then we're investigating the amended a b a to begin with the aid it was not meant to eliminate drug coverage would like to expand it but importantly again back to your honor's questions about was she able to do her job well we see if you remove her counsel it's clear from the undisputed record evidence that clinique had no knowledge of any disability at any time and never received a shred of medical documentation was the clinique counter a concession we within the the larger store know the the undisputed evidence shows that there was a only a business relationship between clinique in macy's and at all times clinic was a vendor it sold its products to macy's and macy's from there then went and sold the products and had full control to to do that and it was not selling its own products on its own account it was selling the products into it so it was promoting the products that it or he sold to me there was cooperation as any normal business relationship between a vendor and at the apartment store and so the fact that has sold its products to macy's it provided support to to macy's with respect to sales and marketing but that was it did not control the labor relations of its employees at all times ms v t was an employee of me cs and as such clearly cannot be held liable as a joint employer because there is insufficient record evidence that exercise the media control over the terms and conditions or of her employment the second circuit the primarily utilized the seven factor test when i was in the joint employer issue and none of those factors exist in this case the factors are hiring firing discipline pay providing insurance maintaining records and supervision in the time that i have all go through those items there's no record evidence the clinic had immediate control over me decision to hire mr v t the records clear the clinic only meets with employees me seasons to work with clinique as a courtesy and they only do that after macy's makes the decision to hire the record evidence shows that clinique there's not have veto power with respect to macy's hiring decisions or on macy's assignment of any of its employees to work at a clinic counter also during the pre employment period there's no record evidence that the timing of any conversations that  discriminate gives no there's no record evidence that would support that and in fact ms v d it made it a deposition that she had no knowledge whether a clinic employee made any employment decision about her and in fact point of speculation throughout in terms of what clinic may or may not have done does not create a genuine issue of material fact there's no record evidence that clinic was a joint employer with respect to the hiring factor clinic did not participate in me sees decision to terminate ms v d and his v t fails to produce any evidence to support that the undisputed record evidence shows that clinic did not even know that macy's had terminated ms vitis employment until they received the judicial complaint in this action it's undisputed that clooney did not provide insurance to ms v t did not maintain a single employment record with respect to did not supervise her did not subject her to discipline as the pay it's undisputed that ms v t acknowledged that clinic did not pay her macy's paid her pay in an attempt to try to argue that  her something of value because she got free clinic products as a gratis the second circuit is held in clinton's dish that the minimalist benefits are insufficient to support a joint employer relationship the financial benefit must be more substantial as your honor observed in the p h s case something that's lacking in this case so just because she worked at a clinic counter just because somebody had me see center for training at their decision just because she received a professional image standards guideline does not add up to a joint employer relationship and for these reasons we respectfully request that the court affirm the district court's decision morning morning may it please the court my name is latika laos and i represent macy's the evidence before this court is overwhelming that plaintiff was terminate it solely because of her chronic absenteeism and tar after a careful review of the admissible evidence the district court correctly decided that plaintiff was not disabled that she was a law fully discharged that she never presented a request for reasonable accommodation or engaged in protect of this therapy appointment because in her words it was none of their business so no one at any point ever knew that the nature of this therapy appointment was medical now after plaintiff return from a leave of absence in early two thousand and thirteen she was informed that macy's have had a lemonade it scheduling preferences for anyone for everybody for everybody nationwide unless they can present evidence that they documentation that it was medically necessary or for religious reasons she was a that at that time to provide the documentation the record is clear that macy's and know it any point never received any documentation from the plaintiff that she medically required with the she was medically required to have these wins days off  system was in place before she went on leave of absence and then it was also in place still after she went on leave of absence during the short six month timeframe to plan of work for macy's part time she accumulated twenty five attendants points for fifteen absences and targets plaintiff is now starting for the very first time on appeal that and let me go back for a second to point out that none of these points were accumulated for any win stace case even after playing a guy back if she was scheduled to work on wednesdays the record i clear that she never worked on wednesdays and that she was never assessed any points for that that's when she had wednesdays off and then there was one of her do songs night after she came back from her leave of absence she was scheduled to work on wednesdays but she never came to work on wednesdays and she was never assessed any points for that because she had informed her supervisors of this appointment they said look please provide the documentation but in the meantime she was not assessed any points now the plaintiff is starting for the very first time on appeal that the twenty five points that she did a crue were for medical appointments this particular fact was never argued in the lower court not to mention played with the macy's in our statement of undisputed facts specifically stated it specifically stated that none of the  for medical issues and plaintiff did not dispute this in our statement undisputed facts this is in the record and disputed that it was for therapy but one of the kind of therapy would we be talking about other than medical with a medical professional there is no evidence that any of the absences this she accrued were for anything medically necessary with the exception of going i'm sorry was there a question your honor ok there was ok there it is undisputed  that of the fifteen absences in toddy's that plaintiff accrued there is no evidence on the record that any of those absences are tardies were because of anything medically necessary plaintiff now points to one particular medical record which is inadmissible your honor is pointed out and as you correctly point out there are no sworn doctors notes that are on this record but look even at that one particular medical record that only excuses one of the fifteen absences in sardi's the plaintiff received she there is it is very the merits for medically related reasons that's absolutely not correct according to the record if you're honest see for example as we mentioned before we have the hypertension emergency hospitalization that's march  hypertension was included in a leave of absence if you want to is also a key thing to look at is document a one sixty five those are showing several absences for instance in november plaintiff accru six points while in the month of november according to the record that the district court ad plaintiff was on leave she was on leave from october twenty ninth to january second two thousand and thirteen so she received six points according to the american system while she was on a medical leave of absence we also have the before the court that the lower court was able to see the hospitalization we also have that she received the merits in march for absences that were on wednesday i mean there you you can certainly quarrel with individual entries of these kinds when i understood your adversary arguing that that there are there was an overwhelming and intolerable number of absences and likenesses and it's pretty hard to run a business when you have no idea whether a particular employee is going to show up when well actually your honor what the adversary is claiming belied by the record by defendant's own claims they claim macy's is claiming in their brief page twenty of sixty nine a late miss you get one point absence three points a one thirteen after a final warning accrues after nine or more points in any rolling ninety day period within one year of the issuance of the first warning and one thirteen for one fourteen paragraph ten now defendant's claim that after the first warning was given on march once they remove the wednesday is absent three more times march tenth which again was the hospitalization march twenty third march twenty sixth and one late was on march twenty second so she accrued only ten more points if you subtract the march tenth which removes three points she only accrued seven points so she didn't she should have gotten the final warning to begin with never mind and if i may i'm sorry  the court on summary judgment that plaintive started receiving much of the negative treatment the hostile work environment after she had to miss one of clinics several training sessions and she's claims that both  clinic executive who taught those sessions and macy's people were harassing her because she had to miss clinic training sessions because of a medically required doctor's appointment so we have several instances where plainti testifies that clinic was directly involved in her hiring in her discrimination in her harassment and her retaliation in plaintiff's three page written complaints she also discusses oh she also discusses that she received further and firing because she missed because she missed a clinic training session now clint and if i can if i can just say we're done thank you all we'll reserve decision