summary judgment was proper and that was there sufficient factual dispute as to whether the appellant was returning to an equivalent position to survive summary judgment and the nd issue was the alternative of the district court which is did the record establish undisputed only under the rodriguez standard an unequivocal e under the turner standard of the th circuit that a pelleas would have made the decision to hire a chief nursing a position that has equivalent skill effort responsibility and authority did your client lose supervision over hiring of nurses absolutely and you can look at the record in multiple places and i would start out with there was a september st two thousand and sixteen raise that she received an accompanying memorandum from the c e o as to what her responsibilities war and one of them was including the hiring and firing of nursing now this practice had multiple facilities it had an ambulatory surgical center it had a main office busy building adjacent to the surgical center and it had two offsite facilities one in pensacola one in gulf breeze she was responsible for all the nursing management of the nurses and all those facilities prior to her taking f m l a leave and that's pursuant to that memorandum of september st tw sixteen which was discussed with the c e o in her deposition and at that time and if you look at particularly follows as i have to take my glasses off to read if you look at twenty seven dash four pages seventy eight through eighty one at the time of a raise we asked the c e o questions in those pages seventy eight through eighty one which came directly off this newly created chief nursing officers job description and we asked did the appellant do these jobs back in two thousand and sixteen and the answer was yes to ninety percent of the jobs that we lifted off the job descriptions he later created for the scieno and what's important about that is then you go to the evaluation at the end of december where the c admits that the valuation said that she exceeded all her expectations that were set for her back in september so yes she was doing all these then you look at missiles deposition she's the scieno that they hired to replace my client after she took half a mile a leave and i would invite the court to look at appendix four at taps twenty seven dash seven and specifically at page thirty five she goes through what her actual duties war so you take her deposition testimony at that page along with houses deposition that i cited too and then you look at what miss testified to is her actual job duties and those appear at appendix one at twenty seven dash one pages fifty five through seventy three and you can see that there were job dut book that my client did prior to her fm l a easy easy explanation of it is is when you look at all of the facilities everybody agreed that when she come came back from f m l a leave the only facilities my client would be responsible for where the ambulatory surgical center and possibly the m o be she was relieved completely of all her nursing responsibilities for the outlying facilities and that's something that  not referenced in the summary judgment order but that the specific citations i gave to you in the record will show that mrs salt took over my client's responsibilities the other main office building the m o b my client was regulated to the ambulatory surgical center so there is a substantial amount of duties that were taken away from her and up i'll get into it on the the alternative decision which is that they claim that this job was created independent of her taking f m l a because i think that argument defeats any argument that she was returning to an equivalent position upon her return from  f m l a leave council with with respect to the hiring and firing and i'm not sure i'm on the same page there i'm looking at the job description and i thought number eight says selects and hires employees according to establish guideline sierra right isn't this the one there where they say yeah you might have th was handling or that was her prior job description yes well but isn't that all that i said that this is your job description now it's just you report to the scieno instead of the thing now you're so you're saying don't look at this look at all these different things where people are talking none of which in effect we actually know what happened because she resigned twenty minutes later and i take it you're at one point in your brief it seems like you say at page twenty one as soon as they hired sol they had violated the f m l a page twenty one says this was an impossibility to go to the same duties once huss created the scieno position it because they were taking away her duties there was no way she could return to the position that she had before she took a family leave and if you look at those depositions sites where you see what was actually done versus what was said you will see that my client was stripped of substantial duties and responsibilities that she had prior to taking her f m l a leave regardless and the point of that and you see where it scratched out a a summary judgment is misplaced now i mean there is the problem i'm having and it may not be a real problem so i'm asking is there was certainly a lot of evidence that she was overloaded she was working you know many hours beyond forty hours and the management is not entitled to make any changes of that sort i mean this is not a case in some of them we change your duty used to be a vice president now you're making copies seoul would be doing some of the things that she had been doing but she would have been doing at least according as one can tell up to this point a large proportion of what she had been doing before and can you help me what did she want to keep doing that she wasn't going to be able to do what's the grab them and of the gripe here she wanted to return to the same position or substantially same position that she had before in the duties and thing that has absolutely end and understanding that this is at the summary judgment level and yes there was evidence which we dispute that she was overloaded and they needed other people and their substantial record support for a position to dispute it once she got a raise on september st two thousand and sixty two she got an evaluation where she scored out of sixty two categories a perfect ten and fifty five  categories two weeks before she was going out on f m l a leave and then they said that she exploded her expectations on that then if anyone say she was doing a bad job about it i agree with that but then you look at the record and there my client says breed on a schedule and what was that schedule she said the job didn't take forty hours and they agreed on a schedule where she would do clinical is on monday through thursday in the morning and she would do admin in the afternoon and that's in the record which is ignored by pelleas and and the district court in deciding the summary judgement even if some time for a battle so we'll hear from you again thank you thank you miss him and stated that they knew they were going to hire dr dent in the more and more two thousand and seventeen and incorporate his practices and maybe you can point me to where in the record it says this but i didn't see were missing men's agreed that she knew of the plan to hire an administrator before she went out she did not agree i'm not saying that she agreed that she knew they were going to hire the chief nursing officer what i am saying is that she agreed that the growth of the practice indeed did i guess i'm saying it's probably the practice to grow considerably during the timeframe that she was acting as the director of nursing and there were plans that she was aware of continued growth that would add additional responsibilities to what she already had importantly because the why isn't it a jury question though as to huss the c e o was that in the fall of two thousand and sixteen they made that very decision but doesn't it seem they also said they discussed it with her i thought and she says they didn't and so why doesn't that i mean why doesn't that create a material issue of fact on that issue well i believe the discussion isn't necessarily the creation of that position but the discussion was the miss symons job duties and how she wanted to maintain her job duties moving forward and one thing that the record is entirely clear about is that she wanted to maintain a clinical role where she participate in surgery she did not want to take on a fully administration let me what we were asked to decide here is whether there was sufficient completing accounts about what happened here to have a jury decide instead of a judge in one thing that you know cries out to me is that i mean you say the decision had already been made to hire a chief nursing officer but when they had the position evidence is and conflict to they had already decided to hire somebody in another position if they advertised the position in the in the title the miss him and held i believe they and you have to look at the overall timeline of ho to understand how the process what i know they did some things restaurant actively but you agree with me that when they advertise for the job they advertised it under the title that mr simmons held while he was out on f m l a law that right well they at the advertisement was you if your client hadn't called turn said we expect you back by such and such date which curt after all of this happened so clearly your client was expecting her to come back i mean well there was negotiations about a potential and when she said i'm not going to agree to it they said well if you're not going to agree to it and we expect you to come back to work that that has nothing to do with the finale issue is this enjoying the time she was on paid leave before the a familiarly is over for before practice on notice that she was suffering from what she said was a serious medical condition at the time that she says i can't return to work because i'm having to she was on she was on leave for a while because of other issues before the f m l a leave began is that fair that's correct or are in and so that's how you justify the fact that they advertised to replace her and that yes they advertised replacer and i believe it's either the very week or the following week after she goes out on this indefinite leave that has nothing to do with  a and there's a concern that she is not returning at all miss sold in a response that advertise isn't this always sought out directly by cindy haas because it worked together before and in the interview process while missile was told we have a director of nursing duties that need to be done right now because our director of nursing is not with us we intend to miss miss us specifically told her we intend to have this higher level ministry of the position of intially which is what we are looking to have you do  oversaw inventory and that became missiles responsibility and that mr ammons ensured that handhold p a was compliant with federal and state regulations and missile took over that responsibility is there any material issue of fact with respect to any of those three things well that you have to look at our site for things sure and i think it's important to look at what happened because the questions asked a missile or what are your job duties now several months later in a deposition what do you do now not what would have happened had miss symons return to work and that's a critical point here because what was occurring was missing his wanted to come back to work they told her same pay same responsibilities come back we'll talk about it she comes in for a twenty minute meeting decides unilaterally that i don't believe this is the same position goes and sees your lawyer and then via text message quits so we have no evidence there's no evidence in the responsibilities rather than giving them back to miss them and as you know some it's come back it's not right and if you look at that testimony i believe the testimony is occurs in the appendix around duties but if you go further into that testimony miss sol is asked directly with regards to the jobbies that she maintained beforehand which she had can you say that she wouldn't have done all these she says no i believe it's possible that we would have set it up where she would have  yeah i mean by the way but to get past summary judgement we credit her version but her version is based off of pure speculation and conjecture as to what she believes would have happened had she returned will  true in every summary judgment setting i mean what's micah's to a jury right so if there's a dispute of facts about what the plan was then a jury decides instead of a judge right well i disagree your honor i think i think looking at the job descriptions it reflects that and i mean again the case law is clear that virtually identical means substantially similar doesn't mean that a practice doesn't have the ability to adjust saying somewhat i believe if you look at it this sol who's talking about what her understanding of how they would have operated together a scenario which didn't happen ultimately you're left with a situation where the idea that she was not having the same job responsibilities is based off of speculation the what is in the district court's order judge roger says there's nothing in the record to suggest that the director of nursing in the chief nursing officer couldn't the substantially similar requirement doesn't is not it's not you have to come back to the duties are absolutely identical to what you had beforehand and if there's a reason for and it may mean share what share w actual evidence that her job duties changed when she what's the what's the way this emily cases would work in the sense that she returns to work and you know on day one she does certain things and on day two she says i want to do x and they say no missiles going to do that from now on would she then file an f m l a claim when she had enough of such things of duties that i wanted to do that they've taken away would that be the way from your point of view it should work but my position your daughter is that had she returned to work i don't think we'd be here because one of two things would have happened either she would have gone back and would have found out that indeed the job was substantially some are it's a cap most for duties which her job description that was given to her supports or she would have found out that no she thinks that is different duties but we're not in that well you might have been here but that's what i just write but i just ask counsel is that we'd be here if she claimed that ok i wanted to do this they wouldn't let me do it i want to do that they took it away from me isn't that i mean i'm i right about that's the way a family claims can work or am i wrong and you know practice your i believe you're correct in that had she returned to work and had in there was issues that she believed reentered the job not substantially similar that's not an impossible or an implausible way this work i mean there's tension in this room amongst all these people right and that's a fair re a reading of the record and so it's certainly conceivable that's what could have happened it's not you know we don't take it as as gospel that you guys are always going to satisfy her and understood it and i think the i think you're correct in that you know in that you know that is a possibility but again that's not the record of what actually in the same time i take it your argument on the other side would be you know if she managed eight facilities and they said well you're only going to manage seven you would you would say well that's a de minimus change yes correct your honor and as far as the idea of what missiles testified a to what duties she did i think looking at that testimony as to what she's being asked what is being asked is here we are seven months later in a deposition what are you doing right now and the practice after missing is refuses to return and resigns or p has to adjust a missile as a person that has the capability of taking on some of those duties at that point on they also brought in two additional people to manage the immobile in the a f c and the evidence there suggests that the practice indeed made efforts to to do the director of nursing responsibilities which are critically important to the practice are talking about accreditation issues licensing making sure that there are compliant with the state and federal regulations and so they had to do the sayings in this sole being in a position that was going to be that no doubt was going to be similar to at a higher more strategic planning level the director of nursing position it's not she's the obvious person to take that on what's miss simmons resigns or her on it but you can't say because she did those things after miss simmons quits that's evidence as to what would happen had missed simmons actually returned in this case turns entirely on the concept e was hired into the job in march and when she came to work her title was director of nursing then miss summons comes back on the th of march  to and she was a person that was brought in to cover that position and to potentially eleni to advertise for oil and we did advertise that position at the time that miss him and suggest that potentially was she wasn't going to return it all miss sol did not respond to that says they're working on the job description during the timeframe that it occurred that she that a new mistress was coming back and that they finished it on the day that that she was coming that she was supposed to come back to work but instead resigned that's helpful thank you thank you hours if if i may answer your question regarding what misspoke testified to it's at a four hundred and twenty seven fast seven at page fifty three and fifty four the question wasn't asked what her current duties was question was even though you did not discuss it is your understanding that she would have been your subordinate with respect to all these responsibilities answer my understanding is she would report to me and we would have gone through and decided what i was going to delegate or to direct report to me question correct orients or obviously i can't do all of that question and you would not have delegated all of that answer right some of it i would have kept myself and i would have delegated to her so that in itself creates an issue of fact and there's a reason why for you look at the pallies brief they cite in the stalls deposition only one time and it's four when she started which was  seventeen after they were on record that my client needed f m l a leave which is which is important the nd thing that i wanted to point out as an issue of fact is you can go look at mises  sixty eight she testifies sorry got the wrong cite she testifies as to the distinction between the scieno where the say no took over all the outlying offices and the m o b o office substantially reducing my client's testimony as to the issue of fact as to whether they made the decision before the court can look to the record at eight to again this is mrs haas this testimony the c e o twenty seven dash for it page fifty two when she asked about the job or or maybe hiring an additional  position with dr hank hold this is what she said his response was he said no i promised her she didn't have to leave the o r if she took this position so for them to say the decision was made when mrs haas in her deposition testimony says when we were discussing it dr hang hold who owns the practice said no we're not doing it then we go to it is taking her out of the r no taking that delegating or hiring a new person to do these administrative positions which gets to the earlier point that anything hold said we're not going to hire and you admit yeah no i mean that's the deposition testimony then you look at their argument and this gets back to what i was saying earlier they want to argue on the one hand that the reason for this new position had nothing to do with her f m elaine the decision was made before she went on f m l a says allegedly it was too much for one person to do that's the testimony yet you see that brazen september st two thousand and sixteen you see the evaluation on december seventeen the fact that there was no advertisement for the position after september st two thousand and seventeen all the way through and even after my client said hey i'm coming back from my f m l a leave  and the date she said that was on march can is that right no she indicated she was actually right i can give you the exact  which she does and then accept the she starts on the th which is a good point that a good question because even though they knew on march th she was returning they kept miss old in the same director of nursing position that she hired into for two weeks they didn't changed create the job description until the day my client was scheduled to come in on march th they then say come up with an excuse for retro actively calling it hey what job my coming back to i hear you hired a deal when which is my position what this must say she lies she says we didn't hire a deal when we hired a sienna which we know from the record is not true because mrs salt testified repeatedly when i got called it was for the dio and position when i interviewed it was for the dio and position there was no discussion about this higher level it ministre her there was no discussion  about strategic planning or budgeting or things and then when you look at her job offer which is her job offer her job offer her title is director of the inventory surgical center and nursing the job my client had there will dispute here that summary judgment should not have been granted and this should be allowed to be decided now by jury thank you so much we appreciate the presentation that does it for the some morning