it's number sixteen one seven eight two john levy inverses tower automotive operations his not argument not to exceed fifteen minutes per side mr mccarthy you may proceed the upon it please the court my name is d main thrust of our claim your honor is that we believe that summary judgment was and properly granted in this case that the record revealed a number of fat questions that if all of the facts of the record was construed in the light most favorable to mr libby mr levine summary judgment should have been denied and he should be permitted to have his day in court to explain why he believes that his f m l a rights were violated and we've briefed the notice issues i believe that mr it was james submitted sufficient evidence to show unusual circumstances that when he arrived one or two minutes late he notified the only supervisor on duty mr witt ridge and mr witt which was mr levine supervisor at least one of them anyway mr  mr levine is very low in terms of establishing a notice in the district court i believe focus just entire analysis based on the fact that it believed that mr levine gave insufficient notice and then from that made a determination determine that the remainder of his claims did not have legal merit well i mean if he was having the anxiety attack where for began at home which i believe was his testimony why i mean why shouldn't a company be able to say he should have called and per the company's procedures rather than risk being late well four months after the july twenty ninth two thousand and fourteen incident in other words he was asked that question for the very first time in his deposition if the employer had a question regarding the sufficiency of his notice the onus is on the employer to ask questions i believe he testified when he was asked that question for the very first time a year almost a year and a half after he was put on the spot and was trying to recollect as to what had happened also the record doesn't show that even if he did call in that somebody would have been there to answer the phone one of the reasons why he went to mr wet ridge is because the normal protocol wasn't available yet he of this he was shifted to the very early morning shift and so i don't believe that the record shows that even if he made that call or if he believed that he was going to be late before he got on his motorcycle that that would've been practical so to speak but what exactly was the putative interference with his attempt to his time card and the supervisor accepts mr live ains explanation and he goes on to do his work approximately two days later just two days later his immediate supervisor mr kreider who we pointed out in the record had apparently an axe to grind with mr levain hands on the tardy notice saying we're issuing you a disciplinary notice for your two minute late arrival two days earlier and it's my position that that in and of itself is interference because it was an i think under the shop them to the labor agreement if he had just one or two more tardy or absent with tardy notices he would have been terminated disciplining him after he invokes half a mile away to the person he saw link him and that's the interference correct ok but now go ahead you know that it doesn't appear from the record if that resolution and matters was really final and any why i mean what happened was  correct and you know that this was an inconsistent resolution of it there is a read only if i will means i'm getting it resides in seeing if the tardy was going to stay and or not but before they get to the plant superintendent's office mr lvalue blows up that's what other witnesses they didn't say he blew up but that i mean that's mad a scripture novick but i mean i could write for you what you know what the what the record shows about the testimony about what you call your client did i believe your honor the record shows the way i read the testimony of the and by the way mr witt rich's deposition for whatever reason was not taken but the way i read the testimony from weston ridge and i reported to mr weber ridge they then went to mr west ridge just to confirm that that's i think they went to mr weber just to confirm the truth of what mr levine had said and on page i think one thirty three of mr levine's deposition he testified and again considering the facts in the light most favorable to mr levine mr witt rich confirmed yup that was a family leave it was noted on his time card and i believe that's when which leads into the other issue this alleged threat i understand that mr kreider use words like he was yelling and screaming inside of a shop that was extremely noisy you had to sometimes wear headsets you couldn't hear very well my client held up this tardy notice and said i'm going to get you on this now reading the record coldly like i'm charged to do that doesn't events a threat he was threatening to actually file a complaint mr levey had a history of filing complaints when he felt his his rights were not they're not nice but i think i'm going to get you on this and i think he even explained that what he meant because mr kreider apparently didn't hear him the first time he said it he was away some ways he turned around and asked him to repeat it and john tester mr levine testified in his deposition i explained i'm going to get you on this meaning i'm filing a department of labor complete he cannot be explained because that's pretty described the incident and again i point it's that same is just to get instant sound when you read the whole story it sounds quite different well whatever was happening situation again we pointed evidence of other witnesses where i would argue that other more direct threats of physical harm were made in this in this facility and no disciplinary action was taken i believe mr levain had an unwarranted target on his back primarily because he filed complaints against the very people that are now accusing him of making a threat and i'm going to get you on this was meant exactly that i want to file a complaint and i want to point out in mr levine's deposition if you might want to do that or above i did not really address two points here on the first point the interference claim as the court is aware under an interference theory the primary issue is whether the tower failed to give mr levine a subset right under the family medical leave act either perhaps not giving him twelve weeks of leave or perhaps not reinstating him upon at the end of the the time that he comes back from leave here that never happened there was specifically but what i meant was prior when mr levine first sought leave back in two thousand and six for his wife and then took us and twelve and thirteen that we was always approved he was approved for i don't think anybody's really argue about that stuff and so the issue on july the edgar versus de jackies if you want it to the court specifically said interference with f m l a rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of  compliance with the company's usual notice procedures sure and the companies you know are most usual customary procedures in this case as the trial court proper found was that the labor contract required mr levine to notify the h r department and i want to speak up just a little bit sure either notify the h r department prior to the shift start or if that was not possible within one hour after his shift started ok so the to i mean this so he gets written up for that but the focus of the case in the determination and this the ultimate resolution of the case had nothing to do whether or not mr levine was was granted f in on that particular occasion or not if they never got therefore they were trying to investigate and if mr levine rightly had a if he had a position say hey i did tell mr wood tridge they would have reconsidered if they never got that far so is it your position that this episode that does result in his terminations where he says i'm going to get you and that cetera that that that was meant to address the the late arrival that day and absolutely that out i guess that that then gets truncated because what happened happened and so we ought not to say it was interference because you're in the process of trying to figure it out that's correct ok well what i understand you you know really the more easily determined a causation and pretext on the retaliation yes your honor and so i want to address that second point on the retaliation piece in that the there's no real propositional difference but all the witnesses who testified said he was irate he was yelling he looked they were apprehensive of fear that was based on mr levine's conduct now there is no evidence of a direct retaliation and they did try to point out that miss rest all the h r manager made some mission that mr levine was terminated for exercising a family that's simply not the case so then you're into the pre  first there's a basis in fact for believing that the threat that the threat let me back up there is no basis for a pretext first there is not a basis in fact for believing that mr levine did not threaten kreider that based on mr levine's testimony and the witness testimony his own his own testimony it's clear that his conduct was what it was on that morning in the brief mr levine argues that he never acted like this before and he wants to create some pretext to say that he had never he had been a model employee before which was not the case mr lee had been written up prior to him taking a family leave back in two thousand and six and the record reflects a lot of discipline throughout the  from the time he started with the company up until the time he was terminated but more importantly there was a document and one of the documents that i submitted it's document eighteen page twenty four that is a counseling from a different time when mr levine also engaged in the same kind of behavior getting in someone's face when he didn't believe he was being properly handled the right way so there number one there is a basis in fact for believing that he threatened prior to their the threat was sufficient to warrant terminations here you know when it comes forth just now mark you telling our viewers that other people had not been terminated for making similar threats first off that's simply not the fact in the record mr murtha testified in his deposition that others had been terminated for threats but as this court is aware from the  toledo hospital versus mitchell case when you're looking at compare ors you know he hasn't presented any evidence that there are any similarly situated employees that had the that were treated to similarly because they hadn't taken a family leave and then the final point on a pretext is that the plaintiff the pretext claim fails because the threat was sufficient to warrant terminations here you know when you have somebody making a threat that's serious it's serious misconduct if an employer has an honest belief that somebody could come back and be violent and they have to deal with it and that's why they have policies that are intended to prevent employee conduct like that and that's what happened here the only subjective belief by a coworker that he put in that mr levine was was subjected to unfair treatment has is not based on any admissible evidence that was that's in the record that to show that he was treated any differently or let alone because he wanted to take it from illegally so for those reasons your honor i feel that judge ludington issued the the summary judgment order should be affirmed and he was right on the on his analysis on the retaliation piece of  you i'm a mr davis there's one question i want to ask you is minders my understanding is that really the only evidence you have a pretext here is the temporal proximity between his  not a threat not if an actionable threat that would warrant a terminations under well i mean that ok the company's policy is pretty broad it doesn't say you have to physically threatened anyone or beat them  says you have to treat everyone dignity and respect that's true and i mean is that really an argument that you're you're making here and that it's on this record it would be pretextual for them to concluded that he did not behave in that manner yes in the reason why i want to make that point is that under the the the culture of this shop if i can call it that no one speaks with perfect link which no one speaks dignified all the time there was revenants on the record that there is other types of  alleged shenanigans and threats and so on and so forth but in this case my client stated he believed his rights were violated he said i'm going to get you on this meeting i'm going to file a complaint and i think it's wrong and i the this is where the district court erred in saying well we're now going to turn your state in that i'm going to file a complaint and we're going to characterize it now as a rat and sure horn  or or put this into the category of of an actionable terminations reason and that's why i think let a jury decide whether this was truly pretextual or not and i just want to point out exhibit  one of the exhibits that was introduced at mr with ains deposition exhibit number ten this was an email written by christine could vino who was the designated human resources  person to do it to interview mr lehane and even on july thirty first at three fifty three she writes an e mail to  in and some others that said john said he told al meaning al where ridge that he was going to get the department of labor involved because this is a violation of f m l a that was his intent that was what he was saying that's what was what he meant i do believe that the record creates enough of a fact question the fact that we differ as to whether this is a threat or not goes to the jury and i cited in my reply brief the case of boating versus anaconda minerals which was another employment discharge case involving an alleged threat and admittedly this is from the south southern district of southern district of ohio seven fifty seven f eight eight four i said it on page fourteen of my reply brief the credibility and factual dispute surrounding the scope and meaning of the conversation between plaintiff and carol sagan remains a genuine issue for trial cannot be resolved by summary judgment and this response this pertains to an alleged personal threat made by plaintiff to others within the company as a so basis for this action and i think the record in this case presents enough differing accounts and testimony that survives summary judgment that this goes to the jury the standards are low for notice i do believe that it's just bad policy for an employee to say of my butt rights were violated and i'm going to get you on this granted it wasn't the best way to explain it but he meant i'm filing a complaint and then they fire him because he said those words i think that's wrong and that's interference in retaliation thank you