our second case for this morning is caroline guzman against brown county  correct attendance was not an essential function of her job ok how how would that be i was a little bit confused about how your nine one one operator and on time attendance is not well function of your job and just from a from a lay person's perspective which i think is what the district court came to this with that on its face seems like an attractive analysis the problem is the case law says there are a number of different enumerated factors that we have to consider in determining whether something is an essential function of a person's job and in this particular instance much like the ramana case we cited the department had a policy of bet that benefit time or casual time as they refer to it that was forty hours over the course of a year that you could use here and there if you were late to work or if you had some personal emergency to take care much like in the ramada case but i didn't understand that that first two points about that first of all i didn't understand that and then you could just randomly not be there without telling someone and secondly i mean i share judge coleman's bafflement at the idea that an operator in an emergency center doesn't need to be there when scheduled and it looks to me as though this employer repeatedly told it's a good start on precisely that you know that if that whatever the job description said they were giving her warning after warning after warning written oral you name it saying don't be late and that's where the county's argument breaks down because if you look on pages seven and eight of the counties brief they set forth what they allege to be the well documented disciplinary history of first of all the county has impermissibly conflated the concepts of performance and attendance there was never an ira question why are they different and you're saying that they're very different because there was no substantive problem guzman did her job the only question before this court as conceded by the county is was her tardiness enough to be terminated without considering her  a request and her status as someone with a disability long known to the county as a just stay with this for one miscarriage because even if she was performing fine as i assume she was yes while she was there it strikes me as only luck if the fact that she was absent during periods of her shift didn't lead to some terrible catastrophe when somebody was trying to get through when there weren't enough other people there to answer the phones or whatever the system is so well informed in theory that could be a possibility but there was no evidence of that here and that never happened it's the ritz communicate and he doesn't want to run a system that's a hit or miss a problem with the county here though is during this time period that they are consistently trying to document ms guzman out the door they have a very high turnover and they have taken seize in their positions and they took an employee who requested f mily they leave and notified them in writing that she had a disability they disregarded all of that looked only at her attendance which was a function of her disability and said because of your attendance you're out and in this two page list that's allegedly a disciplinary history as i set forth in my brief if you go through it they're the only attendance issue in terms of oversleeping and failing to report work on time the first one appears toward the bottom of the first page september fifth two thousand and eleven those all those prior things that they try to connect here to performance issues and claim that miscues mine had this massive history of problems with the tenets they don't have anything to do with that i mean there's vacation time because she's three certification testing that being done the first formal warning for failure to report to work on time because of oversleeping was not until a year and a half before her terminations and then if you go through and you similarly analyzed the remaining instances and take out the for example being late to work because her car didn't start violating a vacation policy you come up with only a total of five disciplines in a year and a half relating to attendance and each one of those is for oversleeping which her doctor in the note provided to the employer after all that relates to sleep at b after the fact at but that's it it's undisputed that she know why this is not an isolated your honor the decision to terminate her the county claims was made on march eighth and they haven't seen the note yet that's correct but as you say she was told she could bring it in but the fact is what she had told them verbal that she was going to talk to her doctor and get a note for this problem with sleep apnea that's in the record well i mean i think all my colleagues are concerned about a number of aspects of this case including did she really make an f emeli request the content of the doctor's no which is a very conditional comment actually seems like a truism to me don't operate you know when you're very sleepy it's a translation and what this timing of when they actually saw that note if they had made up their minds to see to fire her on the eighth of march then it actually doesn't matter why they didn't see the know take sound they knew the note was coming and they knew that she had requested f mily and they knew that well c of twenty nine which was our proposed findings of fact paragraph thirty eight in the record and when did she allegedly say i'm requesting f m l a at the time that she told her supervisor that she had spoken to her doctor and he said she might have to get checked for sleep apnea now this was a disability that she'd had going all the way back to two thousand and six that's the point that's the point right there yet you're trying to extrapolate saying that because she had at the malaya and she had issues back earlier that seemed to be resolved by the gastric bypass surgery that somehow they should still been on notice that if she started falling asleep again and gaining weight again that she needed f m l a and just because she made a few statements to put nor that she knows we should be company should already automatically not actually want it and should abide by that isn't that your position nowhere we are pointing to and both the a d a s and the us from l a the employers affirmative obligation upon understanding that there is a medical condition or disability depending on which statute the employer has affirmative obligation to inquire further before they discipline the employee or to the f employee doesn't have to use magic words to request a particular result she just has to indicate that she has a condition that may require f m l a and then that's a backup position for you because you know your opponent certainly take the position she never requested f m elaine which finally back to matters well except that then you back up and say well sure there was actually just a conversation right which takes has the bypass surgery lots of things happened so i don't know why the employer the minute she oversleeps which is something anyone could do i should say oh you know the sleep apnea is come back with better see if we can accommodate your position i've been oversleeping i'm sorry i didn't hear the alarm you know whatever other words because you've been making the argument that you don't need to it's magic words and i want to know why that's even relevant while it's valid because you don't have to even mention the f m l a in order to obtain the benefits of the f mily in the same way that you don't have to specifically word for word request a particular accommodation in order to get  accommodation under the a b yet under both statutes once the employer has knowledge that there is either a medical condition that might be a family qualifying or a condition that may qualify as a disability in remission in this case and perhaps coming back to the fore once the employer has that information they have an affirmative obligation to inquire further to request medical certification to request a more extensive doctor's note they and just terminated what we're talking about here is and even though it was documented sleep apnea you have several years that have gone by you know as judge wood said people can oversleep that's not and they don't have any other type of circumstances and the addition after as you said september twentieth eleven between that time and the time she was terminated she had five at least five documented instances right increasingly all the good in the burden is on the company to try to figure out even though they're telling her disciplining her giving her performance right up saying you overslept again but she waits until march eighth when it's clear they've had enough of this and says oh i'm going to get a doctor's no and even that doctor by itself they need to tell the employee that and provide her with certification forms to take to her doctor and fill it out this is this is part of what the hanson what the hanssen case decided a couple of years ago in this court that once you trigger that duty by the employer they have to take it from there you don't have to say i am requesting f mily leave and fill out whatever forms the employer has before they even consider you they had a duty to stop if they didn't believe her or if they needed more information to stop the terminations process and say to her all right you said you had this prove it take this form to your doctor bring it back to us and then we'll make the decision counsel me ask you this if she had not had this sleep apnea issue before that was documented one and she comes comes up and it's two thousand and eleven and she's falling asleep right you know she may be overweight she may have both things going on but there's the mere suspicion without that previous history is the mere suspicion based on your argument trigger that up it's up to the not lawyer they need to go into the malays so you're saying because she had this condition years ago yes they should automatically you know no i'm not saying they should automatically no i'm saying they should look at this look at the increasing frequency and smaller amounts of time between the experiences lateness particularly being late for work for over sleeping while you're on suspension for being late to work over sleep i mean there's testimony in the record that no i mean the client was just absolutely horrified that that happened to her she certainly didn't know what was happening she talked to her doctor she told the employer i think i may be getting my sleep apnea that and that all of those factors the county should have considered plus her verbal  may please the court my name is mary nelson and i represent brown county the district court properly granted summary judgment dismissing his guzman's complaint brown county is here before you today requesting that you  what is your position on what the verbal al cried to the supervisor about her condition was ms guzman's testimony during her deposition was that on march eighth she had a conversation with her supervisor mr printer and asked about a pin in a note from her doctor to excuse her for her tardiness that day march eighth on march eighth so anything before that no minute what it says you know it's a little bit quizzical but anyway she gets that note but mr pugh nortel server that she doesn't have to actually tender it to them until she comes back which winds up being the fifteenth by which time they've already decided to fire her so why wouldn't the tenor of that first conversation make her think that the that brown county is going to be willing at least to carry her until she's had it rechecked recall the use of the of the term sleep apnea so what we have to go on and obviously what you have to go on and the appropriate way you view the cases is from the standpoint of the nonmoving because we're at the summary judgment stage who did not have any information with respect to sleep apnea with respect to leave with respect to disability all mr peltier knew was that he had a problem employee who was consistently violating the same policy in terms of attendance and tardiness and and you all have read the briefs so you understand the factual history that i'm on february twenty fifth  she was three day suspension was imposed for this series very same violation she had served the first day of the three day suspension when she was late again and it's important that at that last meeting in february she was told that if this happens again you can you may be terminated so she was clearly on notice that term nation was the next step and keep in mind that the county did not simply just rush determination it in it employed its progressive discipline policy with with the counseling with the warnings with the was made the decision on his own to terminate on the eighth now that decision was not communicated to his goods meant until all of them could get together on the fifteenth but it's important in terms of what was his state of mind on the eighth and what he knew and it's undisputed in terms of the basis for his opinion or excuse me for his decision was the repeated and as a matter of fact it's under speeded at this point that that information was not passed along by mr printer or from mr producer to mr keelty and that was that was a important fact that the district court relied on in its determination and  point but if we go back to the two thousand and six it's undisputed in terms of the diagnosis of the sleep pattern in two thousand and six and the treatment we during the course of discovery i paint certified record so we know that that none of those f m i always leaves in the past were for sleep apnea so even in two thousand and six when she was diagnosed and treated for sleep apnea she did not use that emeli at that time th county's knowledge with respect to that so so none of the prior f m l a was for the sleep apnea could i just ask you though is what mr peltier of had some kind of file on her in front of him when he made the decision to terminate it wouldn't be county keep records along the lines of what you've set forth on pages were seven and eight judge again my understanding is that that information would have been seen by human resources and not by the department head and so mr peltier would just fire somebody without looking at the human resources file mr peltier made his decision based upon his knowledge of the policy violations and and had no reason in terms of the information that he had for him when i made his decision to inquire any further or to have that type of discussion was i'm just very surprised just as a matter of management if you're about to fire an employee wouldn't call up the human resources file and just browse through it in your honor and i'm not suggesting that human resources was not involved in this  am that record is not before you and so i certainly want to be careful in terms of my statements to you i know that there was a process i mean that human resources would have been involved in terms of notif well as the county executives and any terminations has to ultimately go through the county executive but as to exactly what that process was i don't want to misstate term as at the time and certainly from the county standpoint in terms of why that particular information wasn't contained in the affidavit or supplemental affidavit excuse me of mr peltier is because it wasn't material to the counties arguments and it wasn't something that was identified as needing to be addressed in response to the to the plaintiff's brief employments followed repeated violations of an attendance policy over a period we're talking about nineteen months and as i pointed out during which the progressive discipline of policy was i understand there are different elements but some common ones that are important number one is the county's position and the record is undisputed that she did not establish having a medical condition or a disability at the time the termination decision was made so i take it as the county's position that if somebody comes in with a doctor's note that says i think x condition is likely please test which is more or less what dr stam said and he doesn't firmly say i agree with you doesn't firmly say she has to sleep apnea again but he thinks it's the most likely he wants to be tested but you don't think that triggers any duties under the age of the f m l a i don't judge if we look at the four corners of that as as we know ms goodman actually didn't over sleep that day if you want to if you want to get hyper technical she actually woke up and then went back to sleep but all the the sole purpose of that excuse was to provide an excuse for her for the tardiness that day this particular note from dr standard not speak to leave did not speak to to time off it did not speak to a disability it simply just said please excuse her for having been light on the eighth and that's it it's my understanding also that she did not present that note to her supervisor until march fifteenth and by then the decision had already been made that she would be fired yes yes your honor that that is correct so in terms of notice it came far too late in the day it did and so so we've got the no no proof a medical condition no evidence of actual or constructive notice and so for those reasons and also the absence of causation all of the points the judge agrees bach hit on in his decision but counsel you do have the history back in two thousand and six of her ha has the february she's late has a february discipline is laid again on the eighth she her testimony was that she didn't even know whether she in fact had sleep apnea this was something that she was simply speculating or guessing about what and keep in mind the this you know only came about by way of a telephone call that she made to him at the conclusion of her shift before dr stammer wrote this note he did not he did not examine her he did not see her it was simply go to the weight surely absolutely but in terms of placing the place in the context so we've got that history the only guy who got almost a seven year gap in ter isn't there because there was no medical treatment there's no knowledge on that no demonstrated knowledge on the part of the county but more importantly judge the plaintiff herself did not even know if in fact she had sleep apnea in february and march she was guessing she was speculating and did nothing about it but she herself did not know if sleep apnea was the reason was the explanation for why she was tardy this was this was simply speculation and guessing on her part and i can tell you that as of the time for a deposition because it was addressed in the briefs and certainly judge response mentioned as well that even at the time of her deposition in january two thousand and sixteen she still didn't know the answer to that question because she had never been retested right she says she had no money no insurance policy lots of other things so i guess that's an understandable reason with respect to eighth that that any request for leave or any mention of that on march first fifteenth was not a cause of the termination decision and that with respect to the issue of similarly situated people i think that the record is clear there is just nothing there to support that finding unless you have any more questions i will go to thank you very much for your time this morning thank you as well anything further  addressing further the lack of information passed on from ms guzman's supervisor producer to the ultimate decision maker peltier two points one it was his legal duty to pass it on he as a supervisor a duty to pass them yet and even if even if the court disagrees with me on that point i have one other point to make about the march fifteenth meeting determination meaning even if we set aside what happened on march eighth completely there's evidence in the record which is disputed but the plaintiff did present evidence that in the termination meeting there were present her supervisor mr peltier air and human resources and that during the course of that meeting she verbally again requested f m l a and she requested time off from work to get retested for sleep at me now if we allow an employer to say oh well before we heard all this information we already decided to terminate you does that mean that once the employers are aware that their decision may be illegal that they have no obligation to go back and rethink it before it's executed i don't think that should be the policy that this court should give lower courts the authority to do one other quick point about the prior f mily leaves if you look back at the prior use of f l a by ms guzman all of those were continuous and it appears from the facts here that an intermittent f mily we have would have been more appropriate for her but it's possible that she may not even have known that such an option was possible and that's where the employer's affirmative duty to advise her of that comes in and as to attorney nelson's point about only speaking to dr sam on the phone on march eighth to get her note she ignores the evidence in the record that we presented below that two weeks prior to that she had gone to see dr stone in person and that he had said the same thing at that time and the county had that medical record acknowledges that the record says that we think a court should consider that as well all right thank you very much thank you thanks to both counsel take the case