is what i believe is the most important passage of the pinion if it's right at the end page id number fourteen seventy six to fourteen seventy seven or in the court states plaintiff further claims the defendant blamed him for not contacting mr bartholomew during his time in the hospital and shortly thereafter and that and that this was a partial cause of his term nation while probably if it is correct that defendant cited his failure to communicate as a basis for his termination the alleged failure to contact the defendant was not a reason for the terminations and other reasons were but the court made if factual finding as i think makes sense from the record that it comes right from the termination letter that it was a reason for terminations i just like to get the on that first and that i would also submit is direct evidence of the terminations but i believe where the court error is in how it framed it what we are arguing is that the protected activity was the request for f in no way which occurred in early august of two thousand and eleven which i believe the sixth circuit in his first opinion indicated had been done  as well what about this way of thinking about the case i mean it is true that these three last projects things to finally get done and this was his last shot i think you would agree had a problem with getting things done and so he's kind of given his last chance and i guess one is to the twenty eighth one to the twenty ninth and once to august first all three are supposed to get finished it's that's it he's going be fired it's true the last one is due on a day that he sick so i get the point that it's perhaps unfair to hold that one against him but maybe that once irrelevant and other words what the player was saying is an office enough you're not getting things done on time this is your last chance please get these three things which we previously asked you to get done before dawn on these states and he doesn't get them done in the states in the most conspicuous is the one on the twenty eight where it's still incomplete again and so one could almost think about this case is who cares about the assignment that was due the twenty ninth or the one the first when he was sick because by the time the twenty eighth was done it was more of the same and so why can't one think about the case that way well that is factually inaccurate he did get the reprimands in before the twenty eight he did get them and the defendant i believe will see the whole his whole problem was not completing things so he turned something in on the twenty eighth but it's not complete so that it's the same problem i respectfully disagree on  reprimand and it had the information in it that was requested the information in it that he supplied was that the key was not in the shoes me it was in the ignition when i should have been withdrawn he had that in that reprimand what that reprimand also included however was some additional stuff is i would suggest purely informational that the disconnects which is has been a problem and that was what the other issues dealt with the other the other four individuals but the information that he was supposed to have regarding mr fitzsimmons was actually in that reprimand that he's minute which was that the disconnect your position on the one on the twenty eight was he got in on the right and it was complete we'll see right in this on the other side what about the twenty ninth where clearly the request was to give it to him not to somebody else and so of course that doesn't get where it's supposed to last third or so i why isn't that again you understand the point i understand the point you're making but my point and that was he gave it to an agent of the defendant he was a i can't remember the the exact title but a manager or area manager or something to that effect that person simply forgot to provide it to mr bartholomew so i would believe it to give him the work for the twenty ninth to bartholomew i don't recall specifically on the record i believe it probable it was that request was made however i believe given it to the guy to the area manager who you know it was one of the subordinates he should've delivered i believe it was substantially done i'm not getting the first person precise legal terminology about substantially you know there's a comply with the obligations but beyond that which is the first one he was attempting to make in the district court's opinion he indicated that the alleged failure to communicate regarding the pager was a reason for terminations and definitely you have to show there's a causal connection it's in the record so i don't think i have to even dispute the other points they have indicated there is an illegal reason in the terminations letter for termination isn't that part of the problem here we have the application of the incorrect standard but your argument is that this is a direct evidence case absolutely and and what the district court d you apply the burden shifting standards of mcdonnell douglas and tell us how why it would change the outcome if the proper test had been if there's direct evidence you don't even go into the pretax analysis which is what judge sutton started with when he began asking the question is that because the the other issue is remember too many claimants on your side they are insisting don't use mcdon douglas they're insisting on direct evidence but keep going all the x i haven't i have an argument for the pretext issue which is what i have no direct evidence yes the direct evidence is right in the opinion as i quoted attempting to make at first what the court i believe improperly framed the issue i'm not arguing that as a court stated i think rather a communication failure is a protected activity under the f m that way what i'm way is illegal that's what the interference is i'm not arguing that someone by asking mr till the while he was on leave to communicate regarding  pager is interference in and of itself i wouldn't bring a lawsuit as a result argument is that in my understanding it correctly your argument is that punishment for not responding is interference correct which is what the letter sales correct mr stone so i did cases in his brief i think to try to distinguish my argument that said well it's not interference for an employer  contact someone and say hey can you help you replace me answer a few question i agree with that principle howard this is not the case this case involves terminations for not responding to page requests that doesn't involve a simple you know we're asking you to respond to the pager requests and that's interference this is a lot more serious this is terminations for alleged failure to respond to you would say the same thing i would say it would be a violation to discipline to their communication is not a proper perspective on what you're saying you're saying you can contact them you can ask him questions about matters that they feel are urgent you just have no recourse if they don't respond that's your position well i'm not saying that that's the position if he if there's an all right if there is a now right insubordination ok maybe there's a recourse and i don't think that's what supposed to do beyond going back into work and looking for the pager if you says it's in the truck and it's not there in order for him to determine what happened to the pager he even gave his best explanation sure i understand what you say your direct evidence dearie don't say it in terms of what the district court did just say it in terms of what you think the law and the facts in this case require the direct evidence is that they terminated because of to look at the facts other than as evidence of discrimination of the f in a way since you're acknowledging they can one reach out that's not a problem and two in some settings discipline all you have is a of a jury must make that determination right because your position that isn't the reason is because the the the letter itself says the he shared the papers located in the k p c r c truck and it was not found travis said that wasn't made to my phone is made to the teamsters line but why would he say hey travis you know i was in the phone records confirm the call was made to travis's lie so there could have been on going back and forth at this point the defendant i think improperly in violation of facts or basically i mean he didn't communicate and that and that's a factual issue thank you for rebuttal let's hear from a friend on the other side good morning robert stone on behalf of the kalamazoo county road commission i think has been correctly pointed out and discussed in mr to least time the primary argument with side of your opponent your opponents position is that they can call anderson in that but they cannot interfere with my if him l a leave and it is the letter that says you didn't call back when i called you are you didn't respond or however the particular language is in the letter of discharge which seems to me to create a dispute of material fact that has to be determined by a jury well i think if you look at the cases that we cited note that in virtually all of those cases the employee failed to comply with some requirement that was sandwiched on top of the f m l a requirement their call in daily if you leave your house and some of those things and in those cases they were discharged for not complying with that requirement in the the ruling in those cases is that obligation to communicate or engage in as i think some court called it a professional courtesy with these de minimus types of interaction with the employer n f molay is so minimal that it does not interfere and it is a legitimate basis it's not protected activity so it doesn't yeah i'm struggling with with how you draw that from the case as you saw it because you cite alan but alan's stands for the proposition that relates to whether you are having additional recall in requirements for example because of the employer sickleave policy and i think we've said in in cabin versus condo  that that the f m l y does not permit an employer to limit x in their life rights by denying them whenever the employer fails to come the employee fails to comply with internal procedures are all requirements that are what we had here for failing to comply with a different procedural requirement so i don't see how i don't see how alan helps your case well i think the cases show that there are certain things that can be required during a leave and failure by the employee to comply with those requirements is a proper grounds for discipline or discharge and it does not interfere with her after my labor rights if it's a minimal sort of i think one of the phrases was wrap up a completed project or some of those kinds of things so i think i think this is analogous to those cases in that there are certain activities an employer required can require such as where's the pager you know call in if you're going to be leaving your house while you're on your half a mile a day or attendants additional attendance requirement but the problem is that's i think that comes in a different case that comes in the case of applying for a are calling procedures under sickly and if him l a u is the kevin versus honda k c o's is that you might not impose on someone who is only on f in malay lady so it seems to me where we are is we are here to dispute of material fact well i i don't i guess i would go back to the fundamental question her fundamental promise is that he was not discharged because of the third assignment issue yeah and your problem is that's in your discharge letter well it it says as it recites the facts he was given three assignments he was given a five day suspension for failing to complete those and he was given extensions to feel nish those three assignments under threat of if this is your last chance if you don't do this you're going to be fired and he failed to complete the first assignment on the twenty eighth which was a thursday from the other side says that's not accurate well it is accurate because they have made a big issue of the idea that he turned in something and i think has been correctly pointed out it's not that he didn't turn something in it's that he didn't turn in the corrected document that had the the offense matched with the the source of the offense there was a battery disconnect and there was a it was a my my osha or leaving the key was in my osha and he cited i'm not an insurance pool regulation but it was tied to the my osha offense so that grievance or that reprimand was never never corrected and his that is and if it isn't that argument problem problematic for you on your own argument because in your terminations letter you said you didn't respond to our calls it violates our procedures under this part of the employee manual so you know you want him to do they in his reconstruction of the or you've done it in your reprimand him tied it directly to a violation of the employee handbook so why isn't that a basis or a portion of the basis of your decision to terminate the well i guess our he get to does he get to call into question his own document that he has already cited in provided to this employee for the basis well i think you get to change your position by deposition testimony when you already have documentary evidence that takes the position well i think i can answer it on two levels and again i i don't think that the letter really says that that was a reason for the terminations of talks about the assignments this there'd been no assignment if we terminated him for not communicating with us about a pager that would be grounds for terminations that would not be protected by the after mile even if that's true we don't we don't believe that that was one of the reasons that was not one of the reasons it's in the record was not with the reasons for the terminations and that that information in the latter is purely background information at the tail end of i think a five page terminations letter but your position would be if you call somebody because you can't find something in there in the hospital or coming back from a heart attack and on if him they need to come into the office and assist you in finding th requested information he's told them here's where i left it i'm struggling you know you're opposing counsel would say there's only one thing left you come in and you help us find it and that would seem to need to be the very essence of interfering with an f m l a law i don't think anybody suggested that he needed to come in i think that the the issue was whether or not he communicated with his supervisor about the the where the pager was in in what i'm saying is a failure to do that is not protected activity under the cases we cited because it's a de minimus sort of professional courtesy as those cases talk about you i mean  explain where the facts don't apply but i mean it's true it's to everyone agrees the employer can communicate with the employee about where something is what type of this project but if they don't respond on the day they're having branches making the point he was in the hospital so what was it what was reasonable here in terms of the employer's expectation when it comes to returning his phone call i think there's no claim that he was supposed to respond that very day i think the claim he never did he basically went dark in terms of communication with the employer as far as his the pager almost the most pager requests made what date was that well i think there was a request made through the wife on the day he went to the hospital but then but there was a follow up i think the next day when he calls in on august eighth they take it you know when i asked him about that he doesn't volunteer any information on that he did he didn't compares wife was doing most of the communication i thought he called in one day maybe it was i'm wrong about that i thought i don't think he ever talk directly with m he said he had left the pager in the car in the truck at some point i think they got that message but it was sometime later they never did find a paper as i my understanding so how how should we think about this case do you think it's a mcdonnell douglas case do you think it's a direct evidence case what are we supposed to do with this i don't i don't think the communications issue is direct evidence of an awful lot of operation i think the court was correct in using mcdonnell douglas and i don't think there was a crime facia evidence of causation i know the courts have said that timing temporal proximity can be evidence of causation but just as the those cases say that  longer temporal proximity can be enhanced by other factors it's our position that a closer temporal proximity can mitigate that and eliminate the inference and i think if you look at the facts of this case in the cases say you look at the circumstances that the timing was dictated by the timing was dictated by the deadline set in the five day suspension so there's nothing to be  causation now you know our case law generally say is you may bring in other factors or you need other evidence if there is a long period a long causation time frame but where there is a very short period then we can we can say that that that short period itself is evidence of causality i don't see that the very short periods are the kind of thing that you know your argument is that it means we get to a at other explanations but i don't think that in the case law for days is for d think it from our perspective the timing if it goes both ways it can mitigate or it can enhance and in our position is if it mitigates the time in this case but judge bell did go on to say even assuming there is a prime  he still did not offer evidence of pretext and we go through in our brief about the various things in the good faith i think one of things that's critically important here is that with regard to what was who whether or not the third day was considered mr piper specifically asked travis bartholomew in the deposition he says are you saying that one of the reasons why you terminate mr tilley was that he didn't submit the job description and were ma before the end of the deadline answer no it's not so you're saying it's not the reason for terminations answer it's not the reason question is it one of the reasons for terminations answer no and he goes on to say that by the twentieth and twenty ninth which is thursday and friday it was over he hit you know the rule the reprimand ladder and the terminations letter said if there are any further violations  performance issues you will be terminated and on the twenty eight there was an additional violation in the twenty ninth there was an additional violation so as a judge sutton pointed out early on we don't think the third one even comes into play we don't think that pager comes into play he was terminated because of those first two because he had at that point had any violation of violation of his work rules or  performance issues and we think that is a legitimate nondiscriminatory reason for the terminations there is no evidence of a pretext it's clear that in good faith they have not filed a reply brief so there's no argument that there's any challenge to the good faith of the decision maker so we think that the decision of the lower court should be affirm false but rather only that some of the factors are false in a mere pretext for discrimination so even though i as i said in response to judge sutton squash and i think i have indicated that all of the reasons they  if i could just so she show some of them when the reasons advance or a collective reason which is what we have in this case that is enough to get the case to a jury again i want to emphasize that there was communication about the pager again page id number five e eight which is determination mother says you were on the duty rotation the week of august one and shared the pager was located in your k c r c truck and it was not found what else does he have to do the only other thing that he could possibly have done to help them would be actually to go in and look for the pager which would be improper there was additional communication judge sun pointed out wasn't there a call on august eighth or oh yes there was i mentioned earlier he left a message traverse this is respond as quick as well you know better yet she submitted medical paperwork that served as the basis for the often the way in the often way it was granted but again we you know this seems to me to be a very slippery and you make a call about a pager which he supplied information about all that it's in the truck and you're going to say that's a justification patient for terminating him under the f in a way that's terminal that would be terming him for exercise of his leave under the f in one i mean i would say it's a direct evidence case and it shouldn't go beyond that again but if you do go beyond that i have shown pretext or as i argued as no you don't have to rebut every reason i think i have  every reason no but under as more you know and we have the information right there in the terminations document in judge bell said that the defendant cited the communication failure as a basis for the terminations so he made that factual helpful briefs and oral arguments we appreciate it the case will be submitted in the court maybe this court thank you for your perspective question