honor in this case the defendant in and by virtue of the granting of the motion first for summary judgment down below the eastern district of michigan has actually expanded the application of the  expanded the requirements necessary in order to establish a claim under the family medical leave act yours the other there are a number of other facts that may be in the relevant and interesting i do believe that the analysis of this issue really relies on some rather simple and established facts and that is this the mr demi on a bench on february twenty third had time available to him under his under the clickable no fault attendance policy that was being utilized by the employer he had somewhere between a half a day a day and a half maybe two and a half days i had negated that there were some issues of miscalculation that i that i just cited in my in my factual statement but the fact of the matter is he was not at that time in violation of the attendance the no fault attendance policy it's the evidence in the case was that on that day he worked the entire day left work at three o'clock and went to an after after work doctor's appointment came back with his wife to the employer where he told mr ensign one of the appellant's my doctor says that my heart condition is going to require that i missed some additional time i uncontested and i've quoted mr ensign's language in my in my brief that he said if you take that time off you will be fired the the fact of the matter is that this is not a really interesting case with respect to whether or not that is in and of itself f m l a interference it is in this court as well recognize that in its cares opinion attendance policy so in that respect this is a very obvious case and i think part of where we things went a little amiss at the district court was that the that what would what gets a little interesting i think is that there is this issue about ability to return to work and where does that fit into this entire analysis some courts have said and i think the the district or down below said that whether someone can return to work is an issue of whether or not they're an eligible employee the defense has argued that whether or not someone can return to work is whether or not they've suffered a heart under the act in other cases of even said that has to do with  causation whether or not the the individual can return to work so that this return to work issue has hit each of the five different elements of what a prima facia case is what is your position in terms of the abilit an employer has an opportunity to request a certification generally speaking on those certifications there is a projected return to work date there was no request there was no i thought the paperwork mr demotivates will see you know if if you're going to be able to return to work there was nothing he was fired then and there there was no let's see what people are going to say let's let's take a look at how it's been in the past what so the assuming that you've met the pr case the employer then has to come up with a reason is that right and the reason is the no fault they're stuck they're stuck absence right there stuck because that that is the only reason that they have is why they fired him and if it was going to be a family leave that's not a valid excuse they're stuck so so aren't they asserting the honest belief that somehow that protects them  thought about this judge and i was trying to wonder if i was actually going to lead with this point we're we're does honestly believe take us i mean how reasonable does an honest belief need to be if i'm driving down the road and i say i think that person is going to get out of the way and i want him i really is is that an honest belief that the person is going to get out of the way i might really believe it but i still hit him or put it to the employment context a little bit more closer to closer to this issue let's say someone is experiencing subpar performance on the job they have to be a victim of the sexual harassment or some other form of discrimination but the employer has the honest belief that they are performing poorly and that's why we fired them it doesn't validate or or overcome the fact that they they were in that situation because they were being discriminated against so my point is the honest belief will has to be tempered in this situation if it applies at all which by the way it never has been applied to this projection if i could back up all of the cases that have been cited all of them all begin with the employee beginning their f m l a leave most of the cases actually got to the end of the f m of late protected period when the employer or the employee wasn't able to comply with the employer's requirements about getting released you know coming off of medication not having  there might sometimes have been a confusion about when the paperwork was doing when they were supposed to report back but in all of these cases there was this at least a a trial period of the f m a late protective period where the person actually went off for a while and then there was doctors who were treating and providing testimony the evidence that we have in this case that mr demjanjuk's would have returned to work is his track record now i'm not suggesting that mr bond to tell him not to return to work or to me doctor november two three months before he was terminated and was violently ill through throwing up and was taken to the hospital most hospitalized he was back working thirty days he's back work scribbled note one line in a medical record this doctor was not deposed this doctor did not review mr demjanjuk edges health condition throughout the the protective period say oh good news i was right he unable to return to work there is we are on a very slippery slope here i've fully support the idea that f e m a l a claimants be required to jump through the necessary hoops as an employer i know it's difficult to comply with with the employee's requirements as are required during f m l a but we have never not this court not any court has ever said we can sit here the day before an f m ole period is going to begin and just i don't think you're going to make it i don't think you're going to be back in time in this projection  anticipated not inabilities hypothetically that somebody has a family member asking for f m l a leave for them because they are in a coma and the doctors say it's unlikely that this person is going to get out of a coma ever should be under your view should the employer then have to grant f m l a leave and wait for it's the twelve week period to go by i think that if that information came was established maybe they wouldn't but i'd also suggest you would it be that big of a problem if they were i mean they're not because what your client was asking for was unpaid m l a leave is that right exactly so basically it's asking to keep the job opened for the twelve week period exactly and it's a menial job one that easily i mean that we're not talking about a key a key position here in our you know the the the fact that they've done without him for thirty days has been established i mean they use other people to do the sorting in the menial labor along the f m elaine was created for people like mr demi on a bitch he was clearly without a doubt right from the words of the supervisor fired because he needed to take more leave this is what the f m i leave is about but you don't concede that some element that absolutely judge thank you the and that it is troubling to me that you know all we have are doctors records which are basically hearsay but evidently all sides are using these medical records even though they're not under oath  they're and the critical the critical fact is what the doctor thinks and then we got to figure it out although we've never been asked questions we do know that mr demi out of it was looking for a job we do know that mr demi out of each quarter that hearsay document told his doctor i got to work i got a family to support we do not have you know when the supposed admissions  where he supposedly said i can't do this anymore he also he said was i need a less stressful job in this is this is like a year year and a half after during his deposition saying i just want to come back to a less stressful job not that i couldn't do the job were i don't think so what it what it what is the standard i think that would have been i think that would have had some evidentiary value i think it's a question of fact of whether or not the employee would have been able to return during the protected period  i can't see how that possibly could turn to his former job as opposed to any job or what are we looking at here right in the are we looking at any job it would be any job because that's what the f m l a requires is that he be placed in a in a  claim except that i think they're in a strictly bound because because whether or not he could have returned to the work would have required them to follow the a d f a and accommodate him to give him the proper schedule physically incapacitated and one that was unable to work or engage in any activity including work seeking to invoke the protections of both the family medical leave act or the americans with disabilities act in the michigan state law  y want to the a d n a for protection and those statutes were not designed to protect individuals who are not able to work and that's exactly the situation that problem who needs to recover hypothetically from a heart attack or something like that unable to work then but twelve weeks later they hope to be that and back and back to work if the medical condition itself allows that individual to return to work within the twelve week after millais granted period then the f m l a would provide them protection but in this particular two when you when do you test whether somebody can come back to work do you test it when they ask for the when they're in the throes of their serious illness or do you wait until the twelve weeks are up or however many days he had under his unique conditions for the f m l a well i submit that you would look at the time that the request was made because he couldn't return to work in that examination you're not the cases that we have cited in our brief say that you don't look at when the request was made you actually at the time you're doing the analysis you take in all of the medical information that was available to make the determination of whether that individual was able to turn return to work after the twelve week leave time and if you'd look at the employer denied a family leave here right away in february when the requests for f n l a leave was made so how does the employer know at that time that this person is not going to be able to return to work unless it's in my i don't even know that i agree with my hypo but in my hypo the person's in a coma and all the doctors in the world say this person is never going to recover obviously that's a bit of an extreme hypo but this is this guy's been repeatedly coming back to work even though he's had congestive heart failure for ten years and cardio my apathy or whatever it is for a long time well the decision that was made in this particular case by kate on not to allow the f m l a leave had nothing to do with it it's an alice system whether the individual could and so the question in this case isn't the judgment of the employer with respect to the ability to return to work at the twelve weeks that that issue is an analysis that is triggered once you look at whether the plaintiffs can establish a was the other reason his employment was terminated but so your opponent says with regards to attendance that there is at least a genuine issue of material fact as to whether he was in compliance with the attendance at the moment that he request septum l a we even your opponent says that f m l a leave cannot count against attendance so why doesn't that preclude summary judgment on your behalf because the issue that was raised by the plaintiff in and as the district court determined is that really what he was is trying to do is nit pick at the way that the employer had kept the attendance records the employer had an honest alif at the time that they made a calculation of the number attendance points that he didn't have any attendance points left and in fact the two points that was added by the employer for the good attendance was done after seven weeks which was more than what the policy allowed it said you got three points after eight weeks of perfect attendance and that type of mathematical mistake is not sufficient to rise to what the courts have determined is not an honest belief it wasn't so obvious that you can make an inference that they were taking that action as a way to intentionally interfere with his ability to take the f m l a a beautifully there's testimony the state was made if you take the time off you will be fired  go against the honest belief argument and the reason they made the statement if you take the time off you're going to lose your job is because you don't have any attendance points left guard wealth as opposed to exercising your rights under no it had nothing to do with exercising the rights under the f m i lay at that statement as an argument by counsel that is not reflected in the record the record is clear that there was the conversation was and the plaintiff concedes he was specifically told on february twenty third that f m light doesn't apply to you because we don't have the requisite number of employees and second because of your attendance if you since you're not entitled to f m l a leave if you take that additional time off you will be in violation of the attendance policy and we will have to let you go and in fact the decision contrary to the appellant argument today was not made on the case seems to rise and fall on the doctor here and the doctor's notes to me advise him not to return to work but they don't categorically say he's physically incapable of going back why why didn't you take the doctor's depositions since that's what the case is all about i mean why why do you rely totally on these scribbled notes that we've got to go through your honor out of this to get it down i would disagree that we totally rely on say when the plaintiff went to see him on the twenty third look you need to file you are really need to file for disability but our argument that the plaintiff was unable to unable to return to work  twelve weeks in addition to the fact he was a qualified individual relies on more than just dr nissen his handwritten notes it relies on the fact that in support of first of all in support of the planets claim for social security disability benefits he himself said that he was unable to war that's not conclusive i guess it is it is conclusive beat that bars as claim here the fact that he filed well factual admissions are conclusive right but the fact that he filed for social security disability itself and even that even if he was granted it is not conclusive us this case that's correct and that was the holding it holding in cleveland but the cases that we cite this isn't just plain of filing a claim and saying ok i want you to do is have a bit white why didn't you take the doctor's deposition this is a summary judgment motion you have the burden on it to establish it to establish there are no genuine issues could be very easy for you to have taken the doctor's deposition asked the questions why didn't you do that because your honor i don't think it was necessary in this case if you look at the plaintiff's own admission both when he filed for social security benefits he made specific overt statements that i am unable to work i'm unable to hold a job if i was offered a job i wouldn't take it i don't have the ability to walk or stand or rake or do you all of which were essential functions of the job as a machine operator he's working in a manufacturer facility in addition to the fact that in his deposition he was specifically ask questions about his medical condition and in his deposition he made it missions that he didn't have he had physical limitations that he couldn't walk he didn't have physical stamina wing w abilities at the time that we would have expired or his abilities at some other time but because the questions were related to his condition at the time the deposition was taken but he was also asked how his condition had changed and he said my condition is the same as it was there and is continuing to get worse and in fact had gotten worse after those are two different things to say the condition is the same and the condition continue to get worse things are different but i asked about his limitations and he said about he said the same and then i asked how it changed how his condition was changing and the condition was getting worse in other words the limitations were the same be it the symptoms may have been more aggravated and that existed at the time that he was taking in addition if you look at the statements that he's to making  to the social security administration literally within that twelve week window after he has assumed if you look at the twelve week window after february twenty third in that period of time he's telling the doctor that he is taking his examination i can't work if i were offered a job i wouldn't take it if and i can't walk and i can't stand and when he was specifically asked in his deposition he said he was looking for other work and that that colloquy is included in the opinion from the district court when he was specifically asked after february twenty third he started looking for jobs he started looking for jobs that were different from what he was doing at cade on and had different levels of physical exertion and different levels of stress because he wasn't able to do he wasn't able to maintain that to cater this sort of gets us into the potential intersection between why wouldn't that be factored in in terms of whether he can return to work under the way because the as the district court found there was no reason why a combination that was requested by the plaintiff and not on that were put forth in response to the motion for summary judgment the plaintiff opined that he could have been given a job on a different line he could have caught parts at the end of the line he says that these are less stressful but in order to establish that movement to another job would be a reasonable combination he has to establish number one that those positions were available and there's no evidence in the record in the plaintiff's burden to prove that those positions are available and did satisfy that burden of proof and second he has to establish that he's able to do those jobs and because moving from paint line one to say paint line three or paint line three to the end of a phosphate line job description for operating heavy machinery in a manufacturing facility is exactly the same no matter what line you're on if he's not able to physically do the job on one line he's not physically able to do the job on the other line but the right that's right and so if he's not able to do any work he's not able to do any of those other hypothetical jobs that he had posed in response to the summary judgment motion there is no evidence on the record that the plaintiff was able to return to work or would return to work there is nothing in his deposition there's no affidavit there is nothing the only evidence that they rely on for him to return to work is that historically he returned to work and that and sent had made the comment he was doing his job correctly but if you look at that only that two evidence in light of the overwhelming statements that were made not only to the so security the statement of the doctor the statements in admissions that he made in his deposition those two statements are not enough to create a genuine issue of material fact on the issues that are before this court and for that reason we ask that this court affirm the district court's decision  as to whether what whether mr demi on a beach was physically incapacitated whether he may have become that in the neck condition you're in have some time later i don't know and i'm not that's what about his statements to social security your opponent is saying that those are disability your honor that's the that's the code of that sheet on that application and that is the only statement that's made with respect that he they could be attributed to him as far as the extent of his disability he didn't make a statement to the source curity no he was interviewed by a psychologist about a year and a half after the terminations who said that he was depressed and the depression was what was keeping him from being able to work and the depression was because he had and he has a heart condition i mean he does it without any any evidence any testimony from your client that's correct the good were there any written statements of any kind one way or the other the the in with respect to the testimony of good faith and whether or not there was a good faith belief as to whether or not there were points left the testimony was extremely clear by mr ensign i had asked to strengthen about the twenty third he says i know i talked to him on his last day which was when the twenty third question what do you recall about that conversation answer i know he came to me and he was already at one and a half points so even at the time of his deposition some time after the thank you both the case of this amended with the court called the next case