allegation against me so he saw for part of the police and one polygraphs went through a whole rigmarole and he was he was cleared but it turned out to be a she had her own mental issues and that was kind of what fed into her making these allegations but you know it  representative but really she's the one that kind of look you know i'm having mental issues i have to talk to my psychologist i'm probably going to take some leave she doesn't that's fine you know you've got some we've left despite this fact and he has a similar conversation with his manager tad cassidy on this point well april leave and i think you know it very least that gets us to a question of fact as to whether there's a interference just by the writing these these these occurrences and what really really irks me about this is that we have the one of the dates to relying on is january twenty second they didn't rely on that at the time they were they came up with that mitigation basically what happened is and i think what happened is at the time between said well he had this level back in april which turned out to be in the middle of his off in the way we've in which the violation so we can type only terminate him and by the way when you have you can't look at the termination event in a vacuum as this is going on not five days before he's had an aunt he's went to julie donovan and said look i feel like you guys are targeting me because  have a problem here because you know can we get in for something to the effect of can we get in trouble because he's made requests for accommodation we should discuss because security offers express concerns about him before his first leave and then they terminate him under this comes up and says technically we can fire him because of his absences on the twentieth twenty first the twenty third in the twenty fourth a meeting the twenty second you know so we in litigation we get into this and i think sparrow realized oh well you know to get to those twe what you're saying and understand the case don't you on your side of the key she have a problem as i understand it if in fact he got all the news that all of them was only fired after more absences and i read about that ok so where i i came i come to argument thinking they have documented they've made mistakes but they have documented that he got all the leave to which he was entitled thing that shows there's a mistake about that well the only time i really was and i had when he couldn't be fired the only time they've identified this january twenty second as an occurrence but then they was after when a geisha was filed ok i mean that's a mistake point you're  allowed to make mistakes and then you can they come forward with their explanation for the mistake and then you're allowed to say they've miscounted and he they couldn't fire him at this point because he he had used all his leave well no what i'm saying that well what i'm saying that one is if you you can't look at that in a vacuum you also have to look at it with the fact that he is looking at it i'm sorry i guess i am looking at it in a vacuum right  in a row that's a big question of fact that this thing number two you know it's very evident because the only documentation they have of the generally second date was counted happened after litigation i look at that as a as a post litigation rationalization which brings it in line with mccann and versus national banner publishing company where if a if you identify a unlawful termination is unlawful the time and then the employer comes for with a post litigation rationalization that would have justified the trauma nation it doesn't you know the employer has an interest in not having reinstatement against people that it was bad it finds during litigation they had a supper independent reason to terminate but also gets into their head at the time and says if at the time if they're  them have you know perspective damages we're not going to let them have reinstatement we're going to cap their damages to the day that the employer figures out that they have this alternate reason and you claim for damages for that period of time and i really think that that applies here because second twenty fourth and twenty fifth which implies that he was looking at one of the ethical way we've dates to get into that level and that's our contention is that you know he at the time would have the you know was in violation that they may he's looking for this technical reason to there's been some talk about december sixteenth but his testimony was that he called and called in an advanced got approval not to be not to be there the sparrows argument that december sixteenth not arguing that it should come because the court can even though they did not get at the time and the supervisor says ok fine you know they tried to say that under those circumstances you can call and get the leave excused i don't see the good distinction and i think he did call in advance for it so out so to answer your question directly i don't think the was because he reached twelve unexcused absences not counting any absences protected by the f them away with a yes thank you sir a little hoarse this morning he meets twelve are excused absences as of january twenty fourth two thousand and sixteen without counting any f in the way protected leaves they've never wavered from the reason why he was discharged it was because he violated that attendance policy about the january twenty second point yes that in that's what i want to address next year and thank you this is not a post litigation justification the general twenty second date appeared in the contemporaneous business records of sparrow hospital at the time that mr buttin was examining whether he had reached twelve and excused absences it was in the scheduling documents that we attached to our briefing that mr wallace was confronted with during his deposition and it simply is a matter of sloppy paperwork here sloppy paperwork confusing paperwork is not evidence of discrimination is not evidence of retaliation or interference or otherwise during the deposition we confronted mr wallace about the january twenty second date specifically and whether it was a scheduled work day for him but he wasn't sure when we pressed him and it's in our briefing and it's in the transcript he said it was a pop it's a possibility quote possible it was his word that it was a scheduled work date any doubt was then resolved by the affidavits that are unrebutted in in the record by mr between mr cassidy who looked at the contemporaneous business records and said yes indeed he was scheduled to work that day in an afternoon shift and was a no show it was an unexcused absence when we asked mr wallace about it during his deposition we said he admitted that if we count january twenty second as an excuse that since he hit twelve unexcused absences under the attendance policy and he was to be terminated one didn't try an attempt to test the veracity of what mr pitino would say or of the business records showing that he was absent in scheduled to work on the twenty second well you produce business record saying that he was scheduled that's right what was that there in our briefing as well there are business records that were screenshots of schedules for when he was scheduled to work that mr b team was looking at on january twenty fifth the day before he wrote the final discipline and generally twenty six terminating mr wallace and those were screen shots that show that he was scheduled to work on the twenty second and that he did not show up to work so what about this today three day i'm sorry i'm not sure if he was scheduled that is that when he said that he was and the other business records contradict that one of the  documents that we had attached to our briefing that is part of the record is a schedule from january of two thousand and sixteen indulge him for one minute and it shows that he was not scheduled on a three three on two off schedule and that his schedule was much more radical than that and it's part of the record your honor and and at the moment i'm having trouble placing my fingers on his wrist it's page id number three thirty which was part of exhibit g in the lower court proceedings that is a schedule that his supervisor mr cassidy is attested vi a contemporaneous schedule being kept of in an accurate schedule of his time during that period there are other months as that are part of the record as well and it does not show that there was a three three two off day schedule leave that's the way it works and then your second point would be to the extent he's arguing this is a post hoc rationalization one that's not true the underlying documentation showed it but i guess the real where the rubber meets the road is whether there's a material fact dispute about whether he was a no show and should have been there on the twenty second in the evidence on the other side is what is it he gets on his side is his testimony which he said it's a possibility i was scheduled to work on the twenty second if there is any doubt it's been since resolved by the affidavits and by the contemporaneous business records the veracity of which he never bothered to test just out of what happens if we decide that the possibility line is enough to make that a material fact doesn't punish employer for making a mistake certainly not a in the ministerial mistake by having sloppy paperwork they honestly believe that he hit twelve or was correct on correct on that document counting the twenty that counting the twenty second that is correct which he cannot show with except his speculation that it was a possibility that he was unscheduled that day that's the only evidence that's in the record that rebuts the affidavits in the contemporaneous documents he made a strategic decision during the litigation not to depose anybody and test the veracity of these documents and so it is refuted testimony via affidavit and evidence and there's no other questions about june twenty second i would like to address briefly the a family interference component of this case interference can math he exhausted his twelve weeks of leave news given a full twelve weeks of leave starting april fourteenth to give him the benefit of the doubt and say that he had a full twelve weeks as of april fourteenth two thousand and fifteen it would have expired and it did expire as he even admitted it would have expired no later than july seventh of two thousand and fifteen his job was not posted and filled until july tenth of two thousand and fifteen so even giving reading all those facts or giving him the benefit of the doubt as to all of those dates and repopulating is full twelve weeks as of april fourteenth which wasn't actually the case of the obligation of the sparrow twelve leagues but didn't your a violation of the f and the way to fill his position after his twelve weeks expired if you can't return to work at the end of his twelve weeks which was clear he could his doctor sent in a doctor's note june twenty seventh of two thousand and fifteen saying he's going to be out until july twelfth after the date long after his effort period would have expired giving him the benefit of the doubt then in july and july seventh dr emerson his physician submits another doctor's note saying actually it's going to extend to august sixteenth of two thousand and fifteen months after his death from the way we would explain it so when they filled his position he had no more  made it clear through these doctor's notes which he admits as during his deposition he was not capable of returning to work until august sixteenth of two thousand and fifteen he does not protect him anymore views of years reinstatement rates as a result august sixteenth in two thousand and fifteen as he admitted during his deposition was at least four or five days after the hundred twenty days expired under their policy the fact that a policy is if f m l a protected days are used against you under a no fault attendant policy as you see from our brief in the twelve days that of an excused absence is that we typed up in our brief identifying from the record those days that he was absent not one of those was an f m f m m a protected day not a single one twelve days meet the level four under the attendance policy this barrel implemented affidavits established in show that the decision makers were not considering any ethical a protective days in fact when we go back to his testimony when he was asked about the april eighteenth and nineteenth days where documents were generated to write him up under the under the attendance policy he admitted that his supervisor told him not to sign them and that is because those were never held against him because on april twenty eighth of two thousand and fifteen you submitted finally his paperwork in leave of absence request that under the policies farrow asked for his entitle to ask for once they received it without question they retroactively granted his leave and applied it to start as of april fourteenth two thousand and fifteen when i say leave i mean they retroactively granted him f m a lay protected leave that's why say you don't see in our chart of one excused absences in our brief any date being counted to that twelve number threshold post april fourteenth in in two thousand and fift let's talk for a minute about what that sloppy and confusing paperwork actually says we have the document th shown all has evidence that shows that the teen was aware that he wasn't present on january twenty second tells us that probably at the time he viewed that as a as a non occurrence as a excused  a three on two off status and also one of the generator the second was the day that what's your evidence that puts makes it a material fact dispute as to whether it was a no show on january twenty second the question is what not whether is a no show whether that was an count against him in january twenty second was one of them well that same document that is one of the base they did count against him was a prior level he had for april twenty third which was a cover to absence it at this point this is a rule fifty six  motion and we're spending all of our time talking about the facts and conflicting facts and what they show i certainly think that dismissal this point was really only testimony and this is that it was a possibility that he was supposed to be there yeah it's possible but he said i didn't you didn't think was likely because it was on a three on two off schedule and when you couple that with the fact that at the time when between was coming up with his residence contradict what they just said about the three to schedule that in fact he was supposed to be there what a contradiction is bad general twenty the four on the twenty fourth the difference that makes is to give him a level want to generate twentieth they have to look at dates that would have gone under this under is protected we because those looking at their own list of dates the only dates they could come up with include the general twenty second date and you know again i have to point out rule fifty six emotion this is a question of fact that should have been resolved by the jury certainly is not fodder for a directed verdict at this point