previous position following his leave of absence and the third issue is whether home depot or specifically michael snyder considered kin or clears leave of absence as a negative factor in its  the burden of submitting proof or evidence by way of affidavits discovery responses that it was entitled to judgment as a matter of law on the issue of employment home depot's motion on this issue consisted of a single sentence the sentence was quote auclair has alleged that home depot usa inc was his employer which home depot u has denied that was it there was no factual argument there was no legal argument there was no legal authority nothing was submitted to show in any way what the employment relationship was between home depot usa and mr auclair home depot therefore did not meet its burden of going forward the motion should have on that issue should have been denied in response to that is to ninety three or for the excerpts of the records and right there on the top of the document home depot usa inc application for employment filled up on the strokers the application you feel that clearly states it's from home depot u the document states this agreement is made between home depot usa inc parin called quote home depot and quote in print and clear and as you understand and acknowledge the following facts you are employed by home depot and again you go back up there to some people home depot is home depot usa inc so the only evidence there was properly before the court regarding this the biggest least provides that home depot usa inc was the employer home home depot in their response brief  maintained his records well the only reason it's not disputed is because the first time it was brought up was in the reply so the issue is what wasn't brought up in the motion kennel care wasn't given a notice an opportunity to respond to any of those allegations here if i read correctly your client in the deposition indicated that terminating appointments and so on was inexcusable i forget the exact language you use and so on why it wasn't that an independent grounds for termination having nothing to do with m m l a ok the only reason he cancelled the appointments is because he had to go on leave so he is a one man show in boise there's no other cel consultant for two hundred miles around nobody nobody to cover his appointments so i'm a sole attorney so if i break my leg and i can't cover go to any of my appointments for a month and i've got to tell him but he can't handle your case for people are going to be upset so yes it is bad business if you can't see it if you can't see people for a month but if i understand correctly didn't contact his supervisor didn't tell anybody he just cancelled all these things and in his deposition he said they basically is atrocious you can't do that you can lose all these clients now it is not that an independent reason for the defendant in this case to be upset absent an independent basis for terminating his employment no it's not because what he did is exactly what the policy and procedures work so in this deposition they testify there's no written policies there's no training nothing of what a sales person is supposed to do when they go in leave for a month they've got she calls or e mails antonio in antonio's the manager of the call center ok what's the procedure when you got to go on leave for a month you have a month worth the book the points antonio says well best case scenario is you get another  consultant to cover those appointments so that was why isn't acting or admitted lee acting in appropriately enough i'm sorry why isn't acting or admittedly acting in appropriately enough  said it would be totally inappropriate to cancel on a customer and ask them to reschedule in thirty days and then later he says i mean it comes out that that's exactly what he did it so i understand and it's an interesting question here with respect to the policy and procedure that there was seems to be no formal written policy or procedure but then it seems that this question terms on whether or not his own you know admission which he agreed that it would be totally inappropriate you know which looks like the employer thought as well  not i think the distinction is if he's just yes if you just cancel the appointments not for going on leave but if you say ok i'm going on vacation and canceling a month's worth of appointments yes you don't just cancel a month's worth of points if you can if you can avoid it so the question becomes ok you're going on leave how now do you handle those appointments do you call your supervisor sharon lewis has special said no he don't have to call  snyder received an e mail within an hour of oak being placed on leave michael sam the supervisor received that email from human resources saying ok kids going on on leave so he knew right away but the manager he didn't bother calling him saying ok what are we going to do with these appointments so kid now calls the call center the calls and when sharon lewis again who didn't know there is no policy so sure louis calls the call contacts the call center and asked what do you do if somebody goes on leave which respect i'm looking here now at some information from e r sixty which is the deposition and  question here so if customers were told that they had to wait thirty days so you know you have appointments the next week and those gusts of her told they had to wait thirty days to be rescheduled for an appointment thirty days out would you agree that's a major disruption the customer service your clients all terrible terrible question and and your client it isn't just isn't done question why not there are things in play just just and you don't do that to a customer ever why they're just hard to come by it just  i just it's not what we do and this is important it's totally against all the principles of home depot so at least in your client's deposition he indicated that he thought that the principals of home depot barred him from doing what he did so different than what you're telling us you're suggesting there was just no policy nobody understood it he says that's not the case so if that's the case but taking him at his word isn't what he did and independent ground separate from the f m l a to terminate his employment yeah i don't think so and the reason being is yes it is bad you don't do it if it if it said he said you don't do that and it's against all the principles of home depot he understood that i think the questions make it doesn't say what if you go and leave doesn't there's no this not least ok if you have to go on leave what do you do when what do you do when you go on leave the whole point of the deposition was to talk to him about what he did why he did it in the context of why did you do this and expose his understanding and in that understanding he made it clear that you don't do this it's totally against the principles of home depot he had an internal understanding but you don't do that yes because yes that's the case i get back again to my earlier question why didn't you have an independent ground independent of the f m l a to terminate your client because he violated in quotes all the principals of home depot and terminating those appointments ok so that's the question so then what are what are the policies so when you go on leave and you have a month's worth of appointments how are you supposed to handle those appointments do you sit back and do nothing so if let's say that he had done nothing at all he goes on leave you now have a month's worth of appointments in the day if that appointment comes nobody shows up and you have a customer sitting there wow whereas this person showed up and attended their point because nobody's done anything to cover it so as that as a selling sales manager he you typically have cells consultants in your area and this is what intel and this is important this is what antonio this said that when you have all those appointments the first thing you would do you get another sales consultant to cover them that is and why do you get another sells consulting to cover him because it's bad business not to attend those appointments ok getting a cell in the first your first option is you then get a self consultant to cover the appointments the manager said to sharon lewis doesn't know what the policy is so that the first the first thing you want to do is cover the appointments if you can he couldn't because he was the only sales person for over two hundred miles there was not another cells consultant who could possibly cover those appointments if that's the case your next best option is to put those call the call center and put those appointments on callback which is exactly what he did so he called the call center says i i'm going on leave from i can't cover these appointments the call center manager says ok who's going to cover him he says i don't have anybody to cover i'm the only person here the call center then calls all those customers and puts them on a call back and reschedule those appointments so he did not just leave them handling so that is the only the only evidence is that when you go on leave and there's nobody cover your appointments you get the call center to reschedule them that's the only evidence of the policy of how you handle going on leave for a month we have appointments the only evidence  what your client's done is deposition well he said it's he says you can you don't you don't do it if it could be zero if it can be avoided it could not be avoided there's no way that you said it was totally against the principles of home depot all of the you know what if what if that you've added to it i understand as a good lawyer that's what you're saying but i'm saying that's not what your client said so then the question is also what it is bad business he acknowledges it's bad this is a cancer on the question though  needs to look at that as well then what do do you with all those appointments is what he did is putting them on callback a violation of any policy no putting them on callback is exactly what the policy is if you cannot if you cannot get to them the policy is you get a hold the call center and you put them on call back and so he followed home depot's policy of what you do when you go on leave with a month's worth of points he did heard my voice i'm recovering from a concert on the water the issue that your honors were just addressing is the crux of this case the issue is whether or not the district court erred in finding that mr  auclair failed to show that the f m l e l a leave was a negative factor in his term a nation the evidence in this case was powerful and overwhelming because mr auclair himself admitted when i took his deposition that doing exactly what he did would be quote a major disruption in customer service and terrible terrible and would not be done to be honest with surprise that he gave that testimony during his deposition  because that is exactly what he did he also said in his deposition that the the policy he violated and the policy he was fired for violating was good customer service talk about policy because i'm not quite sure do you think that mr o'connor followed the leave of absence caught protocol because there's nothing written up from i can see or nothing was offered in writing regarding a policy procedures so did he follow this leave of absence protocol the miss i think it was sharon lewis outlined in her email it seems like ms lewis e mail peers to explain that d employee seeking f m l a leave or any leave of absence could ask the call center to reschedule points if asked to which is what appears he did here so i'm struggling a little bit to how he broke his protocol and also the fact that there was no written policy there's no written policy on what you are to do with customer appointments when you go on f m l a leave that's true there is a button policy on customer service and mr clair testified and everyone in this case testified learn what is the written policy on customer service that he by late a customer's first that customer service is our number one priority but there's no specific actual steps of what you're to do or tell me if i'm wrong how do you not violate the customer service in this circumstance the only thing in writing is as you mentioned the e mail from sharon lewis that says the first choice  to reassign the customer appointment to another sales rep and that is exactly what the supervisor was doing what did he know i mean where do you show that that was given to him he was fully informed of that before you know when he got employed or certainly before this all happened there is not a specific procedure in writing that details how the employee who's going on leave should or should reschedule the customer appointments there is only the put customers first and of course that you have a supervisor who is available to you by text by phone by e mail to call and say i'm going on f m l u a leavin i have a number of appointments he never did that frankly it would have been better if he just did nothing because then his supervisor was already working on having another sales consultant come from here from portland to boise he arrived the very next day david wright and he covered as many of those appointments as he could that was as the e mail says the first choice so the first choice was actually being implemented as soon as the supervisor got a notice that he was going on leave choice number one was somebody from portland to boise to cover the appointments that way the customer service is not interfered with or disrupted mr auclair took it upon himself to interfere with that process by calling  so when mr wright showed up from portland to cover the points they were gone they were cancelled so what was the reason why did you fire him he was fired for the poor customer service for calling the call center and saying put all of these appointments thirty days out so i can attend to the appointment when i return from leave he was fired because he called customer service to put those appointments thirty days or ect that you agree there's nothing in any writing telling him not to do that only the customer service policy that is in the answer to my question there is not again there is not a specific procedure on the steps that did which is what he did he saw did he violate the customer service protocol because the first choice is to just have no disruption in that customer appointment by having the other sales consultant attend to the appointment that seem confusing it's not confusing for you i don't find it confusing if using the example of counsel of he's not available to attend to his clients or find unavailable to tend to my clients i'm not going to just say i'm sorry your case can't be looked at for thirty days i have someone else attend to my appointments that's common sense and i think fits with the customer service policy what he did was take that affirmative step to go in and move the leave who has the burden of proof in a case like this to show that the motivation for terminating him was his action with respect to the customers under the vs america west airlines case it is the employees burdened by preponderance of the evidence to show that f m l a leave was a negative factor in the terminations and that the employer the employee ok the employee has to prove it by a preponderance of the evidence that is the law that correctly was cited by the district court below and applied as well as the game being a case which holds that the f m alay leave isn't a negative factor in terminations if the employer would have made the same decision had the employee not taken leave so the important part here is had the employee not taken the f m l a leave would home depot have made the same decision if the person had just cancelled of these custom appointments maybe it's not f m l a leave would they still have terminated him and i think mr a claire's own testimony in this case shows that they would have is there any evidence that anyone from  home mentioned his leave taking in connection with his germination none whatsoever the in fact the timeline shows that it was really the cancellation of the customer appointments the supervisor learned of the leave on october seventh at around noon that reaction to learning of the leave was to call the employee in portland and get them to cover the appointments it was not a reaction of let's terminate it wasn't until the following day when the supervisor learned that the appointments had been cancelled that he said this is a major violation of our customer service policy so the timing actually taken that is correct although the testimony was also that just the fact of the cancellation probably would have been enough but it is true that a number of customers last it took mr wright david wright from portland today to get down to boise a number of the appointments and when a customer has called and said we're sorry and then someone from portland calls they don't end up actually having the s that mr auclair was on a final warning for failure to close his sales they are the sales consultants are valuated on the close rate how many closed deals do you have versus the number of appointments that you attend his close rate had been reported to valley low and so he was he had been given three warnings on having a low close rate on his third warning it was a final warning and that is when he requested definitely leave so there is independent evidence that before the f m l a leave was taken that he was on a road determination basically right correct  and is there any evidence in the record that he took the m l a leave in part to address the three warning only the timing yes we're in the record is this evidence of the record ninety five and subsequent page ninety five correct if there are any of further questions on that issue i'd like to briefly address the correct employer which is what he's attempting to do in this case he's he's attempting to have both t h d the home depot and home depot usa liable as joint employers and the burden of proof to establish evidence about employment that he in contrast did show that some of the initial documents and through which he was employed did mention home depot what your response to that that's f he also in his deposition testified that he was supervised by t h d basically the meager evidence he referred to was only a tiny part of what home depot provided for the court right and that's exactly  the case just argued is submitted and the court stands in recess for the day