two minutes for a bottle you know you have a bad day as a plaintiff's attorney when you lose a summary judgment motion for reasons not raised by the defendant in their briefs on the defendant it happens i argued in my reply that the hours of service requirement based on controlling case law should have been applied at the beginning of the new term of endearment leave which you requested in july of twenty fourteen when he did have the requisite hours of service requirement over one thousand two hundred fifty hours now the court in its opinion stated well i played it hadn't proven that the condition that he requested the grounds for summary judgment which it's required to do under rule fifty six so i could not possibly than to spaded that issue is something i should have addressed had it been briefed early october two thousand and fourteen a supervisor tells your client that he's been absent without leave for a total of one hundred ten hours and that if he gets i think even one more hour he's going to be in violation of wal mart's attendance policy absent without leave i mean you know without getting permission and then i think it's on october twenty first he leaves work early without telling anybody doesn't get permissions not authorized at all and he's he seems to have been fired for that reason so if he could've restarted his period for f m l a leave  i'm struggling to see how that helps his failure to get permission to to leave work i guess on the twenty first and twenty second ok well that's not my understand of why he was fired you're all right my understand of why would you agree that he violated wal mart's attendance policy for the amount of time he was absolutely i don't think that the record reflects that the court i mean what we're what creates a genuine issue as to whether he violated the policy well i don't think that he did violate the policy based on the record that again that wasn't that was another issue not address an address you know looking at the record it seems and i think a big part of the reason we're here is for you to say your honor look at record you know page two hundred eighty and it's going to show that this isn't true but it seems that he did in fact exceed the maximum hours that one can be absent without permission from work he tripped that wire on october twenty first as you know as a present just as a factual premise here if there's evidence that shows that's not true now is your chance to tell this well first of all had he been given leave before it what i have any record evidence i'm hung up on a factual premise and where that goes is another question but do you have any record evidence that you can point us to that would create a genuine issue as to whether he in fact had violated wal mart's attendance policy by october twenty one as you change off the top of my head i can't address that your honor but that's not why he was terminated and that's not why i am here  issues i'm here to address he was terminated because according to such way he did not have the requisite number of hours on tour to be eligible for family medical leave he had he had family medical leave left that he could have used and what if he's not be able to use it after the twenty first and he didn't ask for the leave and he just leaves work i mean you could have a you like this is another issue i didn't get a chance to address i thought he was terminated for quote excessive absences isn't that a fair shorthand he was terminated from my understanding because he didn't have the requisite number of hours it would have covered his absence of this and what when he requested a murder would you point us in the record for that somewhat different understanding of why he was terminated i don't have the record in front of me it's in it whatever it is in my brief but my with the period after october twenty first yes that's right the twenty third through the thirtieth and he third through the third so i take such catholics question to be how is whether he gets f m l a leave on the twenty second to the thirtieth japan has anything to do with whether he was properly terminated before that i've been with his case for a long time i don't believe the record shows he was terminated because of the that anyone who terminated him cited it like that he had exceeded the number of hours and i would also they didn't terminate him for not coming in in the future though had to be for something in the  terminated him on the twenty eighth after he had been absent for begin on the twenty third for reasons which you know as a nation was based on this this period of seven days or so yes yes yes that's my understanding well but i mean the record said he was fired for excessive absences i'm trying to find the piece of paper and the record as i understand it yes it's the twenty eighth but it's because of events that have happened by the twenty first and twenty second they didn't fire him on the spot an escort a man a building and i mean really it really is your obligation to point us to not just your understanding that's not we can't say the district court was wrong because plaintiffs councils understanding is x we have to point to evidence in the record that creates a genuine issue you know for something the court did not base its deci of this case doesn't it doesn't matter we can affirm for any basis supported by the record and so at least in the points in the argument we're focused on is there record support for an element of your your claim that's that's when you have to point to the record and not tell us the district court didn't do so i can't address that specific issue i can address in a member if that's not what i thought any of the issues were addressed the errors in the court's  ruling you know ruling applies in district court is right for the wrong reason i'm not saying this is one of those cases but we're not going to reverse typically the district court if there's another reason that i understand i  get what i can say is he should have received leave under the family medical leave for times that he did not and that would cover the hours that you say got him over the top of his mission you know i mean that's a thing you can be eligible but you you can't just not show up you can't just leave work you know that that is an issue i didn't address i didn't think it was an issue in the lower court i didn't think it was an  but the reason i understand that they dismissed him and what the reason he was told is that he didn't have the hours of service requirement in october client's deposition question were you told that it had been terminated his employment because you had reached a step for in attendance answer correct is step four in attendances you have been absent without authorization more than maximum permissible hours right right your client admits that's why he was fired that's what he was told mike he was tall ok that ok well if that would be some evidence that that's the real reason well so and then it's like is there anything else i would tell us that actually that was just a fraud it his claim was is that he should have been granted  and he wasn't because of the hours of service requirement which is i thought that's what i was addressing in the fact that the court ruled on other reasons that were addressed in well i mean there could be more than one problem with the cl  threshold level anyway i do have obviously some mediate claims here where he requested extended leave the court ruled that he did he only asked for extended leave under the f m l a which isn't true the defendant told him that you don't have a family so after he was told that if he's asking for extended leave he's asking for obvious way that there was also an error in the application of the hundred percent rule back in i think it was august of two thousand and thirteen he was told that one of the reasons he wasn't getting light duty was because you have to be one hundred percent so i think that's also an error that's in the record regarding his eighty eight claim he also ruled that he wasn't qualified to do the job which is also contrary to the record because he was qualified the only time he wasn't qualified was one he would have these flare ups and he was not able to do the job which is an issue related to the f in the lady and his leaves  my understanding was he was terminated because he didn't have the hours of service requirement when he asked for the leave to cover his time off this by i'm sorry that that's what  recited the deposition testimony in page three sixty two of the record or three sixty one exit interview terminations reason excessive absences and or tardiness correct and again my response to that was the issue was he was told that in the then he attempted to use f in a way to cover that period would you agree that you can't retroactively get authorization for days that you've already messed or days where you left early without telling telling i don't think that's true at all of let's not true let's assume let me give you a hypothetical let's assume really quick because you're right it's so thirty second let's assume that you begin an absence two days before you would have gone over the top five absences but you actually have a condition that lasts for two weeks that would call five you for having a way and you could be able to  vary then you and issue that that sort of thing happened on the twenty first here and twenty second one but i think i think again the other evidence in this case he went over the top sometime in that period that i'm claiming is covered the twenty third through the thirtieth and so he was i was going over the top of the twenty first i mean that just seems pretty clear cut but i'll tell you what you can respond to that in rebuttal you're still having two minutes and we'll hear from those accounts you place a car my name is susan zoller and i represent the apple a wal mart stores inc the district court properly granted summary judgment on opponents claims under the family medical leave act and the americans with disabilities act appellant claims that thousand two hundred fifty hours in the twelve months immediately preceding the commencement of the leave the records undisputed that at the time of the requested leave in october that appellant had worked one thousand two hundred seventeen hours and therefore didn't qualify for a family and that's disputed and my understanding is that's not what we've been talking about so far is your understanding that's what we've been talking about so far well what i think happens here is we're getting to what you were talking about that's really where i think the inquiry ends because the point of view but the argument that goodman i want to hear your answer but i don't want to be confused about what we've been talking about so far which sort of assumed a way that issue and said regardless of whether he was entitled to f m l a leave he wasn't qualified because he was fired not for failing to get m l a leave that he was fired for that twelve month measurement period should start for the as to the first argument whether he worked the sufficient time in twelve months is to piper's saying that it's a different twelve months in the twelve months you're saying and that creates a genuine issue but the record i think is very clear that as this court knows and opinion that you issued in the davis case we talked about what when an employee has to establish family leave in terms of the hours requirement and in that case the court stated that when an employee has a chronic health condition for which they qualify for intimate nuffin lie with you that has been approved commence with the occurrence of the first absence for that a condition for which the employee is receiving intermittently and then any other absences for that same condition within the twelve month f a malayali of period will be included as part of one leave now the issue that we have here is appellant is claiming well we should look at the july time period as the time period in which we should determine my client's eligibility because the july time period when he asked for leave in october it was for the same reason list two reasons that that argument fails the first reason is there is no evidence in the record that this is for the same medical reason that what he was requesting leave for to cover the time period of october twenty third through october thirtieth of two thousand and fourteen was in fact for the same medical reason that he took leave from july eighth to july tenth of two thousand and fourteen and genuine issue no it really there's nothing there is nothing in the record at all to indicate why he was requesting leave from the two words that are thirty years later in october october to october is that what you're saying no so the first reason this is not for the same intermittently is there's no evidence that it's a medical reason but even assume it is for the same medical reason the other problem is it's not in the same twelve month period so that him pointing to july is not appropriate the first time that appellant ever was absent for intermittent f m elaine leave relating to this condition to which he pointed to a hernia is september seventeenth of two thousand and thirteen so under this court's decision in davis that's the first absence the twelve month period from that point forward means that the twelve month i'm alive period and september seventeenth of two thousand and fourteen thus even then he's requesting leave on october twenty third through the thirtieth of two thousand and fourteen for the same exact same condition that he was requesting leave for in july and i don't believe that the record bears that out but even if you were it doesn't matter because in davis the court was very clear that one qualification for eligibility cannot sustain you indefinitely you were fired two i understand your argument correctly you're saying that we can't start the period in july of thirteen which is what the plaintiffs want to do right because there is no evidence in the record that the july absence was a result of the hernia for which starting june second for harney a repair surgery to have his writing repaired prior to that time period starting back in september and september seventeenth of two thousand and thirteen he was missing work  at times and had requested intermittently for hernia he had talked about getting surgery but as burning at why and why don't we start this what weiss why is there no evidence this should start in july you talking july thirteenth of july fourteenth is what they want because there's record evidence that the first absence that the appellant ever had for this condition this condition being what exactly ok or his honea was september seventeenth of two thousand and thirteen so that's why i was saying therefore and he asked the twelve month clock starts right up to understand that part but i thought you know probably didn't say very well but i thought i thought your argument is turning around earning a hernia so i is related to the same condition potentially as september ok we have no evidence of what he's produced no record evidence as to why he needed this leave on october twenty third through the thirtieth there's nothing in the record that shows what the basis for that request was there's no medical test wash their calculators of twelve hundred some hours from july to july right but he can't because he's claiming it's for hernia and the first absence for the hernia was in september so he can come in july absence but he can't come to my getting wrong because we just said june was for her you know repair or whatever too it's all hernia so starting in september of two thousand and thirteen but we just said june was her new hernia too right i mean you know getting working ok i'm talking to you again he's playing upon some measure from june two thousand and thirteen fourteen correct july july thirteen i'm just going to have to look at this argument that deals with september until i got to that argument in your brief having read the the opinion below i thought the two options we're told were july but you come up theory that's really  employee i would say and it is a little bit complicated because i think there's multiple grounds why the july date doesn't work but but when you were when he requests leave in october yes one reason that i think that the appropriate time to calculate that time is it's a new period and you have to recalculate his eligibility is i don't think there's any evidence in the record that shows do period it isn't even look to whether it's july or september this is a new or answer it i think the district or probably thought it was july but you're saying go to be accurate it was september that's correct it's a new period for two reasons one i don't think there's any the case to win because i think at the end of the day what's an interesting argument i think at the end of the day defendant wins because there's no evidence under ragsdale that there was any harm or that this had any impact or any want to this is that argument before you get into it where does that argument didn't cause any harm where does that first arise do you make that argument when to us or to the district court or another district corners well we've made the argument that essentially when i say there was no harm from it it's because because he was eligible for terminations on the twenty first that's the question that's you know i understood and no harm or whatever you want to call it argument is that on the twenty first he was subject to being terminated and when he was terminated it was because on the twenty first he was subject to being terminated that is nature of the argument and if that's true whether he's in title two if m l a for the twenty second through over farther into the future is neither there whether he's entitled to a family of four october twenty third through the thirtieth which is the date he requested for it because by the twenty first so that the whole exceeds his after he's anyway the issue he's raising as i understand it is the twenty third through the thirtieth does he get an l a leave and that depends on what we've been talking about issue one ball but the argument that it doesn't matter is that assuming hypothetically that he was now that we look at it in title to the for that week he still had the same basis for being fired and therefore he was in now and then what in order to come to that conclusion first of all i'm asking when was that raised this there it made no difference in they don't know where was that raised it was the district court relied on it or not we raised it with the district court or not this relied on it or not district court i don't believe it talks about the fact that he wasn't eligible but that's all based on whether he would rather he needed to lift heavy equipment or not he was ineligible because of absentee or or not hours i think is what they were fine dining you argue to your summary judgment proof yes you're on we don't you are you this it doesn't matter where you start the hundred where you start that year period because regardless of whether where you started he's not eligible for can we can rely on it as long as you raise it in your brief and you raise it in your brief to us yes you're on the right so if we assume that it's properly raised then my question is this is supported by the record your opposing counsel says no he has i understand his argument he says you were fired because at some time during the twenty third through the thirtieth you ran out of time you ran out and you had too many x x not that you had too many absences on the twenty first but that sometime during the next week you were and you had too many absences because you weren't there during the next week and if he's right about that then the fact that you were or four forty three and forty four hundred and three and four hundred four and the page we can look at that and we'll find what ms bachmann testified that as of his step three coaching he one hundred ten hours so going into the week of october twenty first appellant had already reached one hundred ten hours it takes one hundred eleven hours and you're fired a step for me and termination and so when mr beck then testifies that he was given the reason he was given for his terminations was that he reached step four attendance policy how do we know that they're talking about reaching step four in the first rather than a week later ms bachmann declaration addresses when he reaches that threshold and i think to put it in context he worked a four day ten hour schedule and so that week appellant was scheduled to work twenty first twenty second twenty third twenty fourth he left early on the twenty first he left which at that point another seven and a half hours of unauthorized i was step for that is eligible for termination and he didn't ask for the twenty first he just asked for the oh yes for the twenty four you know he did not he was not asked to include the twenty first or the twenty second is definitely the time and attendance records showing that he left early on both the twenty first and the twenty second ok and that that would have then taken him to the appropriate level for termination i think you honestly look at those and we find  doesn't say exactly that or we have puzzled by it and you sort of have to go back to your other argument if if you don't find that he was eligible for termination regardless on the twenty first or twenty second and we have to go back to our human number one the whole issue is on october twenty eighth he was told he had exceeded the number of hours ok then mr beck can ask and i use often the way to cover some of the hours the case keeps moving on and moving out and  t and then we get this opinion from such work that as of you know october twenty eighth he didn't have the requisite number of hours so he wasn't eligible for a from the way and then not until sometime in mid november is he terminated so i would suggest that the reason for determination was because he did ultimately didn't meet that eligibility requirement for maximum ours which i say is obviously not true because it should should the doctor said february was the end date which could have gone for a year but the doctor said february and it i think probably the employer realise that it actually goes for a year in april they asked for research  for service serve occasion after six months they can ask to have it recertified in connection with an absence that's under the regulations it was denied then in april it so th family so that's when it should begin because it had expired because he didn't recertify in april so that's why the new period begins in july and again the judge the district court did not rule that he was terminated