as director of health and human services after being forced into early retirement december two thousand and sixteen she brought claims against both her former employer as well as neighboring mill x county this appeal of course follows th issues merits the court's attention however well i intend to focus my argument this morning on why the court must reverse the district court's dismissal of thompson's claims under the federal family and medical leave act now plaintiff must do is show that she was entitled to a benefit under which under that f m l a and that benefit was denied here the district court's decision to not turn on whether there was interfering there was  advise me your client was already on leave in my understanding is the benefit she would have been allowed is to take immediate leave and exhaust that prior to f m l a benefit so i'm i'm struggling a little bit with one of the prejudice participate in a mandatory investigation that's required wench at a time when she was medicated and at times could not walk that's required her to train a cane about issues that involve both both intensely personal and intensely professional matters it's the argument that the company for the county was obligated to freeze its investigation until the term nation of  herself in front of the board before the board would consider terminations its unanimous testimony of all that witnesses for can a big county that that is what they were going to do before they considered termination testifies repeatedly that he intended to have her testify or not testify excuse me have a present in front of the board before they were going to do make any decisions regarding what wendy thompson's employment christopherson testified similarly taking time to respond to multiple requests from five to patrick kristofferson to put together and prepared for a presentation to make very important decisions about the fate of eligible employee twelve work weeks per year for twelve months and an employer from interfering with that there are no exceptions to that in the statute now there is  an employer being prohibited from interfering with leave that there is a medically necessary return to work in a part time position and that contacting them point for the status and intention of the employer to return to work great pains not to inform the board of this fact he was definitely not checking in on thompson to see if she could return to work like rice there was no discussion of a light duty assignment her doctor's note said she needed four weeks leave and never she was never authorized to return to part time work or light duty work now the district court relies on a couple of regulations but these regulations don't were to the investigation that was being conducted well i considering me what to do with thompson's employment as that as its director of health and human services would you agree that an f m l e claim can be used as a shield against otherwise lawful employment actions conducting an investigation into an otherwise legitimate employment investigation even assuming if they were investigating into a legitimate employment investigation they not permit interference with a family does not require the employer to make requirements of the employee while they're on leave that's the whole point of protecting your judge cosas question about whether the employer would be required to basically put their thompson present in front of the board and they were going out delay a decision about her employment until she presented on the board the only reason the exact time that changed was on december th when patrick christofferson received in thompson's medical notes stating that reiterating that she had to take four weeks leave she wrote that that was the last straw that was the last straw that would force him to that would that w december st board meeting he was angling to become the ultimate decision maker regarding thompson's employment but that's neither here nor there because it's clear under united states supreme court precedent that he does not need to be the ultimate decision maker he can have retaliatory animists and proximately caused the adverse employment action without being the ultimate decision maker and employer can still be held liable under the stop supreme court case and i'm right and understand that what your decision maker argument is essentially that he played a gatekeeping function not her ability to present to the county board she did do that your honor any also a requests and that started on october th when she was put on leave because she was under investigation with child protection and lax argument that if a mentally issues changed the course of the investigation that the county even if someone would be i have family i'll leave you so i can address conduct that would entitle the employer to discharge that employee if we look at the exact timeline of events you'll see that can a by county did not change course at all because she was prevented in any way not related to a f m l a request but that she was limited in how she could present she would have to present in an open meeting and that was something maybe she did not want to do but if we look at the exact timeline on december th that's when mr thompson advised coordinator christofferson that she had received the maltreatment determination she didn't tell him exactly what was in that report but he understood she was appealing it so obviously it was not good for thompson recognized that the county board was the only people who could terminate her and what is really important and this goes to the retaliation claim is that there was no decision made on her employment on december st the county set to meet to discuss what to happen and terminations was an option there were also other options that were going to be considered but on december th mr thompson resigned or retired and that prevented the county  making a decision because of that there is no adverse employment action and that would be fatal to the retaliation claims because we have no adverse employment action i do want to go back even further to her to recognize that m thompson knew terminations was on the line well well well before any f m ellie leave requests i do i also want to note that the investigation interview occurred in october and so that was before work for the county and there is no work she did conduct for the county during any of the time she was on leave so i want to go back to on november th miss thompson said she discovered that she needed medical care and she spamalot she needed to have surgery and this is what she testified at the appendix of three thousand three hundred and ten my gosh i need to have surgery like right away and i don't even know if i'm going to have coverage next month because i don't know if i'm going to have  and i point that out because it is it is entirely inaccurate to say that suddenly the county had decided they were going to terminate her that was on that was on the table well before there's a family leave request and so it's her he didn't have the power to terminate her it required a majority vote of the county board and so for those reasons that would be she would not be able to establish her interference claim i want to address the coordinator christofferson to ask questions and provide updates on whether she had her child protection investigation report she voluntarily went to a commissioner's house on december th she voluntarily wrote a by county wasn't title to address the child protection reporter and its impact on mr thompson's work as the director of health and human services that maltreatment determination was particularly important to county and they were entitled to address that and the retaliation claim i do want to address as i mentioned before are there's no adverse employment action there's been a claim that they're somehow a cat's theory of liability that can be successful here given the fact that kristofferson was not a decision maker and the fact that no decision was made we don't get to that the same reasoning and start where there was actually it's a look at the just a little bit further l th that commissioner nelson testified he does that he didn't know how he was going to vote but that he would probably follow the attorney's recommendation which was for terminations so she knew she maybe had one vote in favor but there needed to be true are and she never kind of let that process play out and whether christofferson meant to terminate her or not that still would have to go to a vote to the county board in order to give him that authority in order to retirement would have the board was just kind of a rubber stamp for her his decisions well we don't have back kind about but it's in the record but you know he was the counsel to the county board but we don't have any evidence that he did in fact on november nd when back claimed that there were any intolerable work conditions that made her feel like she had to quit she certainly had other options she was told repeatedly that terminations was not her only option december th she submitted her letter to the county commissioners asking for a leave of absence if russia appealed the maltreatment determination and even the day before she submitted her resignation  before the november nd meeting constructive discharge would have occurred because it would have been intolerable for her to even have the consideration of termination hanging over her standard would basically result in every employee  result would have a constructive discharge claim there must be something actually intolerable about the working conditions otherwise just having an upcoming meeting where her employment will be discussed would be thank you for your honors and counsel may it please the court my name is kendra olson and i'm here today representing malaca county which has a very limited and clear position in this case that county is asking this court to affirm the district court's decision not to exercise supplemental jurisdiction over the remaining state law claims after it awarded summary judgment to canape at county it was not entirely clear from appellant statement of the issues to be dismissed claims that are offering original jurisdiction that the court may decline to exercise supplemental jurisdiction at that time and that is exactly what happened in this case i'd also like to very briefly address appellants request references to lax county's actions and participation in this case those details are appropriately considered by this court because they are pertinent to the state law claims which which the court declined to the court's decision thank you thank you to give up thompson opportunity to speak was in fact a board request slash directive that they had done them page thirty seven the evidence simply doesn't support the contention that these were voluntary activities thank you thank you matters been well briefed well argued i want to thank all of you for your time here today that matters taken under advisement you're free to leave the  next case great mass casualty company versus ruben decker one of the lawyers left there