behalf of the appellant to life the clements i've already indicated she your deputy that like to reserve two minutes for a bottle your honors there are three particular aspects of this case that came before the district court the first issue the district court found in my client's favor but i r i believe that that opinion should be carried throughout the rest of the opinion which is where the district court i think made material mistakes and that's why we're here today in the first issue the district court found that the defendant should be a stop from denying liability for her any potential noncompliance violations that my client may have had because of the fact that the defendant did not provide her proper notice of the f m l a when we go to the second issue which is on appeal before this court i believe that the district court was incorrect in asserting that plaintiff was not prejudiced by defendant when she was not returned to her prior position following her leave i believe that this issue is at the very heart of the f m l a and the federal requirements that employers have for employees not only do they have to give notice and provide the leave which the district court found she received but bring her back to work if she doesn't come back to work a family is essentially useless the time off is what employees get when they have no a family they simply quit or terminate it it's bring her back to work that is so important and that is what didn't happen here when she didn't come back to work she was prejudiced and shouldn't work should monetary losses monetary losses was going on is this one facility where she worked before if you believe the defense didn't need as many folks in this position but that didn't mean there were other facilities within the geographic area i'm just i'm just curious yes put the lawyer into the side of mean can you is there is anyone thought to just ask can she get a job at one of these other facilities today there has been discussion there settlement your honor and i feel that because those settlement discussions were essentially confidential i cannot discuss that ok ok well maybe keep this confidential settlement discussions going so that one day you can have a public with resolution of this lawsuit it i'm just puzzled why we can't solve the case that for sure or was it when did the lawyer her lawyer you or whatever she had first get into the case and why didn't somebody call the employer and so you know you're not following example agni neither one of them knew what the family medical you access to this truly are and what happened was the employer never gave her any notice so she didn't know about the ethanol and she knew that she was entitled to what she just called maternity leave and she expected that after maternity leave should be returned to work in july two thousand and nine she asked to be returned to work and lamont lively her supervisor told her that there are no jobs available after being turned down by one place but teller jobs available in any place he also did not tell her that there were any jobs available anywhere else and that's specific in the testimony that she testified he never told her if you go to the office the give you another job so she did not know at that fact question here because she testified that she was not told to go to the office to get a new job and mr lively did testify that he would have told her well i've got nothing you should go to the office on the first maternity leave when she came back available either but the at that point did mr lively offer her the guard position yes right so she can calls in and says i'm ready to come back and he says i'm sorry you can't have your old job back that's not available here's the here's another option base i'm trying to struggle with what she had what she knew from her last experience on the term yes and what had happened prior was she had maternity leave she arranged it all with mr lively never went to the office never knew it about the office she says i'm ready to come back and she had had what call it a nicer position at the front desk essentially when you go into a corporate building you see someone who checks you in the front desk well he had to put someone in that position while she was gone so he says well i'm going to keep that person there but i'll give you a guard position which is a roaming position but he maintained her same pay the problem being though that of course he wasn't aware of the family and was unaware that he had should have put her back at the front desk but because it was the same pay she doesn't appear that she doesn't want to go back to work the only reason she applied for unemployment is because they didn't put her back to work and as someone who makes about nine dollars an hour at the time she needed some income coming in and so it was pretty much just to feed her family is the real but you know i mean i'm for unemployment i except all that i will say if you win this case there's going to be a lot of people in your client's position that will be hurt by the outcome and i'll tell you why because what happened is your client came to them and was actually  seeking help from the employer saying ok listen i can't get the job in the news center now give me give me a piece of paper that shows i've been laid off ok that's and that's what she needed to then get unemployment oh i can't imagine a company doing that in the future without at that point saying ok listen first of all we're not sure we're really laid you off but if you really want this piece of paper will sign it but we want you at the same time to say you're not going to sue us using this piece of paper as the predicate for your claim because it becomes becomes highly relevant evidence for the f m l i clean the phrase laid off and so it's puts everybody in a bit of a bind in i realize i'm not i'm not saying this is what your client was trying to do i'm just telling the practical realities of what is now happened in the case it's exhibit a for why there's an f o have a claim i disagree and i understand the practical reality and i through is saying but first that often happens as a plaintiff's employment attorney often someone will be let go laid off need to apply for unemployment and in the negotiation they are determined to be laid off and consensually to upset except unemployment and they waive away their rights to a potential claim i see that happen very often whether it's negotiated by the employee or the employees attorney through what is basically a severance agreement that doesn't sound like a great thing it says and i think that's what you're saying and i i will come back that's not a bad thing here on earth no it's not going to maybe get that cold in the problem of the light off issue because in the future the employees will know what they're supposed to do the employer will give part of it but essentially the key is she wasn't brought back to work in july two thousand and nine she says i'm ready to come back the layoff doesn't occur until the end of august two thousand and nine when they're still haven't brought her back to work and at that point you know one of the questions was you know won't this prevent employers from you know would they not to hand out a letter like this in the future first of all she didn't request this letter she went and said you haven't brought me back to work and i would like you to fill out this form for my credit card which is similar to the forms that employers often fill out for disability she didn't ask for the employment form for unemployment she didn't want it she testified that she went and gave them the form for her credit card and at that time they came back with that form and they refused to fill out the new credit card form so as far as employers responding to unemployment they have a duty to respond unemployment claims she had already applied for unemployment that time and didn't even need that letter it's up to the up in michigan not employment determination is made by the unemployment insurance commission not you know the employer the employer doesn't decide whether you get unemployment i'm sure that's very similar in all the states of the circuit the prejudice is that she was never returned to work whether they called  terminated we just don't have a job for you although there was jobs the testimony i'm sure you'll agree was uncontroverted the mr key well said there was jobs and that they were continuously hiring at that time and there would have been jobs in another area but they never tell her go report to the building on jefferson in detroit michigan that's your new job and the evidence is clear that no one ever told her this is the position you report to because the district court found that there was no rules the first pregnancy the first pregnancy she calls him and he gets her back to work so at that point she didn't understand why anyone else was involved because he was her supervisor he scheduled her to be a that she thought she had a choice is consistent with to return her to work her choice was never lay off or work she wanted to work that's why she went to the office and the district court didn't find that from july two thousand and twelve because she asked for other jobs she didn't know that any were available your  honor she didn't understand that and you know as you can see i'm sure from the facts that this is a very loosely run company no policies no procedures no handbook mr key will clearly testify this if someone even asked about the f m a like he would just refer them to the statu essentially his testimony demonstrates their flagrant disregard you have just a few of judge judge rose and says hey you know you made mistakes on your notice they were clearly errors there but no prejudice because there's just testimony that welsh should have been laid off anyway because they had to cut all these jobs is your argument on this precious point well that's not quite right because the only evidence is they were going to cut jobs in this one facility it doesn't prove she going to have a job in one of these other places is that always had the opportunity to return or to any other facility she's prejudiced she's monetary losses she's unable to return to work she and at the same time they demonstrate that she was not laid off because they say that there were other jobs great thank you very much pretty hard to get a job back why not give it to her and my client has maintained the position from day one if she wants to be assigned she merely has to go to the office to be assigned you honor if i could get my client on the phone and find a job for her i would do it out in the hall right now if i thought that we that why don't we do that if the court would want to pass this matter to the end of the docket i will make the phone call i have no problem whatsoever making that phone call would agree to that then she want that she wants to work there please or good question good question can we get her a job with the same pay and benefits as before the discussions which have occurred previous i don't know and you're going i don't care about settlement discussions i'm just asking a present tense question can she get a job with the same and benefits as before i'm sure those jobs are absolutely available there are going to be a few slight issues that are not really i think going to be issues which would one would be  because of the length of time before she hasn't worked she's going to have to pass a security background with the state of michigan this fingerprinting and some other things which have to occur but my client has maintained from day one if she wants to go back to work they put her back to work with no change in pay or benefits or benefits their benefits you're honored she was not receiving medical insurance or any other benefits in that sense the word she was receiving paid time off  reinstatement is the issue i mean you're just making a point about attorney's fees and stuff and making a point is there going attorneys fees in the amount of damages which have been requested during discussions yeah geez how these cases get away from us i think in terms of damages from somebody who makes nine dollars an hour work versus the things that attorney it if needed then i think he's making the point he'll make the phone call now but if the phone call doesn't go so well he'd like eleven minutes of argument maybe i'm on the clock i'm on the clock my clients is maintaining the same position and that is they are ready willing and able to reinstate ms commands or reassigned her  as early as next week they are willing to assign her at a premium position i had a higher rate of pay than what she was even receiving the issue that comes up and i take the  judge's comments into light never really goes to my client comes through the amount of other damages which are being requested and what with life going to the other damages being requested in other words the the dispute now is about the damages and attorneys fees presumably to which miss comments entitled his clients willing to give her a new job apparently a higher paying job about god only knows what that means in relation of the damage are very on premium physicians just for purposes of clarity could be front desk jobs which typically typically usually pay fifty cents to a dollar more an hour armed guard positions can pay up to three or four dollars more per hour but i don't know whether she would qualify because michigan would require a c c w permit and i don't know if she has one but how does that work in this case i'm john i don't remember the complaint is the complaint quick point regarding a question which was raised by judge merit in the specifically whether or not i believe the question was whether or not  knew that she was had the opportunity to seek reassignment at the office there may be a question of fact regarding whether or not she was directed to go to the office mr lively testified numerous occasions t he directed her to go there but she did testify that she knew she could go there she also testified that she knew she wasn't employed for this particular job site but that she was employed for potential generally and could be reassigned at any particular time anyway it happened you take a position she wasn't laid off after the leave when your company wisely unwisely for better or worse signed something saying reassignment the result and the facts of the same that the new center buildings were suffering from significant loss there was some testimony a big i think create because one other employee in the office sent a letter to unemployment that said that the plaintiff would quit and she was going to be a stay at home mother there and again i don't think that difference particularly matters and if you look at all of lemont lively's testimony those two facts nurses are actually consistent with each other his testimony was that she had informed other employees there that she may not return to work and that she may be wanting her unemployment benefits to run out before she sought out reassign so it's quite probable that she plied for unemployment and that my client responded to say hey she told us she was going on employment that she may not be returning back to work and then she came in and said i want to be reassigned and there's nothing there those two facts in areas are not necessarily the point i guess i'm trying to make are not exist to sara lee in opposite to each other you can read those to all of them with your position that you never that by your own that of sending a letter that says no she quit we're done with i don't i don't believe so i think you can read those facts consistent with one another and still reach the same result which was that the new center one buildings weren't operating as they were the testimony is somewhere between a fifty five percent to a thirty three percent reduction in force and that he had quit there wouldn't be any reason for her why would it matter what happened at her own building i guess we could look at that we could play out to the extent to which we can if she is formed by how do you do you get to do that if the issue of whether you have to go to trial whether there is a disputed issue of material and if there's a disputed issue of material fa judgment doesn't work i understand your honor and i understand the burden and i understand that the evidence needs to be taken in her favor i understand that and i understand the reviews don't know vo the point that i'm making is i don't believe those two facts are  opposite you can believe that my client sent a letter we can take that fax mary was true that she informed a lot lively that she may or may not be returning to work and that she applied for unemployment while she was an  leave and still come to the same result which is no work at the new center building the result is the same and that's a nice because of the so just one thing i think i've asked this before is want to make sure i'm getting it to judge rosen's ki moon moving his analysis is hey there's no prejudice because the new center cut back there was a going to be a job anyway it's just bad luck but how does that work with the point that there were other places with other jobs and i guess that's the thing i'm not totally grasping why would you maintain no prejudice if there was the option of going to another location she was eligible for reassignment she knew that she was eligible for  there's conflicting testimony on whether she was directed to go and seek reassignment but she knew that she had the ability to go seek assignment at the new off at the office and she did so i believe the analysis judge rosen is doing is he's saying there's no prejudice because you're right where you were anyway eligible for a reassignment so which she knew she and she was in the office twice and never once asked to be reassigned instead she was having credit card forms filled out so she could do for payment and collecting unemployment ok i think we understand your position and sharp if you want to just come up for a min or two but what your answer to this last point their view is that you know she should you know there's no prejudice in one sense the new center was going to lose jobs anyway and she knew she could apply for other jobs and she didn't so how do you answer that i answer that by saying that the testimony is clear on or about august twenty fourth when she's at the office and she says i'm still on leave d l to doris says why are you on leave she says i haven't been given a new job and matthew keywell says and it's right in charge rosen's opinion when he heard that she wanted some forms filled out for leave he didn't tell her about any other positions so at that time she's saying i'm on leave they haven't returned me that's their opportunity to say oh we've got these other jobs here why don't you go work there until a new center becomes available again with all you've got to just so there's no other evidence because now is your time to deal with i have one other  evidence where she seems to be aware that she could apply for other locations you're saying there just isn't there is not sheet specifically testifies that she's never told to go to the office to get a new job and i think what's more important is prior to that happening you have to look at what the prejudices was there any evidence that she was aware of the possibility of applying to another location she knew throughout her employment that her job was not in the new center but that she could to go to other jobs she did not know about that upon her return from leave why how would that suddenly change if you always know that why would taking leave you could get information out of your head because that's the point of leave you you go on leave and you return to your prior position just like it happened her first pregnancy she returned from leave and she returned to the new senate she knew mr lively was her supervisor she looked to him for vacation she looked to him for all of these things he didn't say you said she knew her job wasn't just at the new center i mean that seems like a semantic game if you know your job can be new center in these other locations it seems very funny to say i'm coming back from leave the second time i'm not allowed to i don't why would my ask for a job in the other locations i just don't get it and i think that we're missing the point that even if she did know that there was other locations that she could work at because i had security guards on their location she didn't know those jobs were available when she returned from leave she goes to the office and says she has no duty to just ask and there is testimony that she asked mr key well did not tell her nor did mr misuse our way so where's the evidence that she said are there other jobs and someone said no there is there are not that question was not asked and her deposition your honor gave her the layoff letter at that time so you're saying there's i'm saying this is i'm a white guy doesn't she ask why doesn't she ask why doesn't she ask i can only represent that based on my conversations from her rather than the testimony at this time and based on the information she's provided throughout this case is she doesn't know that there's that she needs to ask and frankly all right well thanks to both of you finding out for the first time according to your submission that she could go to work get another due in two thousand and eleven your honor and that goes to your point prior is when did the attorneys get involved and about the damages and i would beg the court for a moment to just address that issue decision and potentially a jury so the first time was when she found a lawyer or talk to a lawyer is that right yes she did and did the lawyer i have doubt for her that she could statute of limitations that was shortly upon us it was within thirty days after the complaint was filed there was some initial discussions about returning to work but again we had some it wasn't clear intil a settlement conference after discovery that she could go back to work at that time and then there was also if in all these offers to go back to work or contingent on dropping claims yes you know otherwise no other she can't just go back because i mean sometimes people take people back to no to get damages yes that's clear there's no both it and just to put it into some really good nine dollars an hour it's about thirty thousand dollars a year temps two years one time she found us times four and a half years now were you would have tried when you subtract from that the unemployment she got do not subtract unemployment or case law in michigan your honor you get figuring out your own interest i will tell you if it goes to a jury trial you may have a you may be able to get over judge rosen's ruling there's a lot of equities in both directions i would say to a jury trial but that's one thing that seems clear very to me there's a lot of facts that would be presented to the jury and i'd like directions on or both directions ok thanks to both of you keep talking it's a good idea always to let you control the outcome rather than us control the outcome or for that matter a jury all right the case will be submitted the clerk ma