others this this case presents a relatively narrow issue namely what is the proper interpretation of the term equivalent position for  matter in this case if the evidence shows that even if she had never taken f n l a leave this new supervisor mr seabird was going to stop the arrangements that had been in place before for the these ts as c work releases and get his field engineers back out into the field what seems to me that breaks the causal link altogether between the f m l a leave and what happened couple of things there one is as this court's decision and believe the word is brenna some of the the occasion for the restructuring can't be the mere fact of the care who's up you know in chicago and he restructures the the work assignments so why what does that have to do with his sampras f m l a leave well what what happened was that he assigned miss sampras work to himself right somebody had to do it right someone had to do it and that job existed and that there was no indication that that job was wiped out it's just  siebert decided well i'm going to be doing it he says and he says he can do it in an hour a week right it's remarkable and i don't i don't know what emphasis you want to place on or not but  something that my client had been doing for three and a half years for forty hours a week he could do in an hour and i find that just on its face incredible but regardless the m l a leave was taken or not then the bad consequences is not because of the f m l a leave and in this case the as i read the department's brief they concede that siebert is requiring her to perform different day to day responsibilities but they're saying that that is is not because of the f m l a leave everybody who worked for siebert was out in the field working as a field engineer exactly everyone was out doing and julie hadn't been and so he said but he says well your job classification is field engineer and so i'm going to change the day to day work and put you back in the field where's far as he was concerned everybody had to be not because she'd been gone but because the defense and fighting well against this that what happened here was that she left that job had to be done he decided to do it himself that's because she was gone everyone else was in the field this is something she had been doing for three and a half years if she hadn't been gone she would have been doing idea what explains you know the thirty nine hour discrepancy between what he thought needed to be done and what she was doing but an employee returning you only  testimony directly and say that and i have discussed in my brief where that is a post hoc self serving statement which i don't believe is appropriate in a summary judgment of the cases that allow self serving statements uncorroborated self serving statements or cases in which the ny movement ok makes it make some kind of a statement and you want to use it to thwart the the summary judgment and i haven't encountered a case where you can actually produce a post hoc rationalization for something and introduce it as evidence of exactly what would happened that that's what happened here he already knew that and that my client had filed a lawsuit and that was complaining about the fact that that that there were different duties and so forth and so i'm not suggesting necessarily that there was you know that there's some kind of untruth i'm just smear like suggesting that that's not an appropriate piece of evidence to consider in a summary judgment and going to be kept out  how would you keep it up well in the in the i suppose on a motion for summary judgment day you could've moved to strike it but i didn't know i don't believe  and you know what i just i don't recall wonder that under the cold decision as i understand it the burden of persuasion is on you you and your client on this issue so what evidence is there undermining  well the fact that i mean the very fact that someone mr ross had allowed my client to do this work for three and a half years it just so vies credulity that so i ask you to address the issue of the statue of final decision maker in this instance and he says i did i ask him well the even you know here's somebody coming back from a family leave did what did you do to consult the regulations or talk to somebody what i didn't think was necessary i don't  definition for those purposes is i as i understand it also includes reckless disregard it seems to me that when you're a manager and you simply don't even look at the regulations in a situation ok that's what super tells us was his state of mind i understand you don't want to accept that as credible for purposes summary judgment  but yet is your burden to come up with something else and given that a u s district judge said no violation here how do we say this was would you agree that six months before her leave ms ross could have reassigned her to just exactly the same duties i'm assuming that she could have i although again the term field engineer is nowhere in any regulation or any statute or any any anything that i can see for that you need she was hired as an electrical engineer and electrical engineers just like attorneys do different things electrical engineers do different things some of them are in the field so believe i'm going to ask the defense the same thing you know and i think i'm suspecting that my opponent actually knows a little better than i do but i believe that it's approving the work that's been done or the schedules or whatever by the people who are actually see work releases me please the court counsel i will start by answering the question about the work release is that the work releases are contracts between the f a a and contractors who actually go out and do some of these  work in the field and so managing those worker leases is essentially keeping a running list of where things are are things on track with a given contract you know it is michael i didn't solve going out to see you know is somebody really you know fixing this thing or repaving this area or doing whatever it is they do it could involve a trip to the airport in a rare circumstance but it is not checking the contractors work to ensure it's being done properly that i'm trying to get at is whether testified that he required all of his field engineers to go into the field and perform engineering work in the field as they were hired to do he what about this argument that there is no such job description is field engineer  versus office engineer sure i mean it's true that there is no document that we found in discovery that specifically lays out the duties of a field engineer versus an office engineer however ms sampras repeatedly in her deposition admitted that she had applied for a field engineering job she knew that that required one hundred percent travel to an airport that that was the job that she was hired to perform that she stayed in that classification she had she submitted an affidavit in the administrative proceeding admitting that thought she started out in the field and then ross transfers are to this desk job that's correct when when she first started as a fuel engineer she was working in the field she then managed to get the job just overseeing that the work releases in the office  and as the court is pointed out at the mr siebert it's not a post hoc rationalization for mr siebert that he would have required her to go to the field anyway he does the record show whether mr siebert changed anybody else's  correct he was managing both the kansas city office and the chicago displays office you know the record doesn't reflect that but the record does reflect that all of the other field engineers were out in the field and so they might have been at a project and minneapolis say and that project concludes and you would have to assign them to a new project and nashville or wherever so there's just natural movement that way there's nothing in the record about him specifically reassigning anyone else started wrestling just didn't tell you what concerns me about your argument you 're relying pretty heavily it seems on this this field engineer concept but we know that come the concept of least whatever we call it was flexible enough to include a missing amp or is office space to work for several years before the pregnancy and birth there are a lot of parts of federal employment law where we basically say we're not messes we're not going to take job descriptions and job categories at face value we're going to look at how jobs were actually done d n a that comes up all the time for example and so i guess i'm i'm troubled by resolving this sort of issue on summary judgment given particularly the even the lack of even the formal to the sick patients sure is what i was asking about the willfulness issue i think she shouldn't have been assigned to do this one hour a week job in the office and her supervisor supervisor was not aware and this isn't the record was not aware that that's what was was being done and what she was really asking for is for you to freeze the employer in time for an employee to somehow manage to avoid performing a certain job duty that they don't want to perform or that's difficult then go out on f m l a leave and when they return the employer simply can't require them to do that job judy that's that's what misandry is asking the court to rule and that's not what the return to stanford to the field for that that's not and that's not evidence of willfulness it's because he thought he was doing the right thing and he understood that he needed to return her to the same position that she was and previously you understand is a fair amount of interpretation and we know he didn't look at it right why he didn't look at it i guess maybe we have his testimony that he didn't think there was an issue that's correct maybe he was negligent in not thinking that i mean they have to get all the way over the bar reckless or or worse before you have the three years statute that's correct he testified that he believed that he was well he was the complying with yefim ali by requiring her to go work in the field and as such hamilton noted  done anywhere but mr seabirds mr seaver believe that there was actual engineering work and there work there were projects that were in the field that needed to be performed and that's why he assigned misandry to perform one of those  some point that had he not been able to assign one of the f a a engineers he would have had to go out get a contract person that's correct that was his understanding that there's a certain amount of you know literal actual construction that needs to be done and if an  employees engineer is not doing it the federal government will have to hire someone else to do that job and to hire a contractor to do the field work that the employee is meant to be doing unless you have any further questions i would ask that you affirm the judgment of the district court all right thank you very much i told you i'd give you one minute mr grossman so let me just that left point first they would have also had to have my opinion gone out and found someone to do my client's job i mean as as has been noted mr siebert had a huge area that he was covering from i think it goes from north dakota to texas right so here's someone who's got that much responsibility and he's going to undertake my client's job with that she'd been doing for her for three and a half years she claims you know forty hours a week and was paid to do so the question being what that job still needed to be done somebody that there's been no denial that somebody had to do that job and a few look at br system that that just the fact that she was gone and gave him the opportunity to absorb that job if she had been there she maybe would have said ok i'll let you do office work for four hours a month and you have to