to an employee definitely regulations say this says an employee shall provide sufficient information for an employer to reasonably determine whether the may have applied to the leave request depending on the situation such information may include that a condition renders the employee unable to perform the functions of the job now in this case it's undisputed that pamela merryweather miss miss from the supervisor was the highest level h h s official at the side medical center she's also the person they're charged with responsibility of implementing the company's f mily policies it's undisputed that merryweather was there at work d when miss ramsey fell and injured knee on the th of september it's undisputed that they both went together to the on site emergency room and merryweather was present when the doctor in the emergency room gave miss raanjhanaa note that she was to be removed and not go to work through september the th so three days later i think fourteen years for at least twelve years she worked for the company for twelve years doing this job and never before been required to do it did me squat to perform that function we've that's something that we've argued in our brief so even if we get to that point well you know has she been given leave and actually been given the twelve weeks of leave and come back that that that still is not there is at least a question of fact as to whether a detainee squatter your ability to do ten of them has an essential function of the position and i would submit that there that there is evidence here that ms ramsey would have been able to return to work within the twelve week period and most importantly judge anderson is there not only is there evidence because the question here is not can she prove it but there's at the very least a dispute of material fact about whether she would have been able to return to work within that twelve week period because what what she testified to is and here and that's why we're arguing the initial violation is that they never gave her notice so she fired she loses her job a job this is a sixty year old woman she's fired after twelve years on this job she has no clue what her financial future is you know she's not a wealthy person this is a job i think two thousand and twelve dollars an hour she loses her job she's no longer able to get worker's comp treatment because the doctor it really started to full duty and so she's not able to see the treatment that she would  that's one way she was prejudice but the big point here is that this case was decided on a motion for summary judgment that was granted so miss robbie doesn't in order for this case to reverse we want to show that she definitely would have been able to return to work we have to show that there were there were material does there were disputed material facts as to whether she would be able to return to work and she's testified i mean you look at the timeline that we've set out in our brief she's worth she was once she started receiving physical therapy the doctor cleared to return to work in six weeks now so they they then cut off that physical therapy and she didn't fully recover but after she did start getting physical therapy she testified that she would she would have been able to come back to the job within that twelve week period but the big point here is that she was never even permitted to try this i would i will submit this would be a different case had they given her notice and had she taken a leave twelve weeks and had she then come back and bit was subjected to this essential functions test at that point in time that you know at that point in time maybe we have a different a different outcome but here she was never even given the opportunity to but i'll briefly conclude i would point out that under the th circuit's opinion and in the noise that that case they wrote that prejudice can be gleaned from evidence that had the plaintiff received the require notice she would structurally differently and in this case there's at the very least a question of fact whether mrs ramsey would have requested leave and taken leave and how long that leave would be and there's at the very least a question of material fact a what your client did decided to do your honor in this case we have to look at the actual facts of what happened and in the context of when they were happening and how they're happening so  her doctor at the time actually the worker's compensation doctor that she would need to be out for at least the next three day and that physical therapy was prescribed for the next several week so why wasn't that enough at that time to trigger the notice requirement you're out of the notice is due five business days from when that notice requirement would be triggered so if you even assuming that it was triggered on that day and rd so when she went for the fall of visit it was determined that she could return to work like you did with restrictions and then she was described with physical therapy to follow up so yes my my my problem is is that you want to make a you want to affirm on a matter of law that that seems to me that there's genuine material dispensation here as to what's reasonable or not usable well the the crux of ten the knee bends as being part of the essential functions it seems to me the may well be issue fact as to whether that really is  required and if she is actually challenging that idea that her evidence was rather speculate that she could with ten weeks of because you didn't give the notice he didn't have the essential functions in front of him and so he when he said she could go back to where he didn't know about the ten deep in the band but if the ten if issue in this health condition or an injury or illness also covered by worker's compensation the employee has no right to restoration to another physician on a definite way the employer's obligations may however be governed by the americans with disabilities that the americans with disabilities  essential function tests required before certifying the person as ready to go back to full duty and here the doctor was never advised of it and miss mary was there also admitted that the essential function test checklist was not posted anywhere at the workplace and she couldn't recall having given it to the plaintiffs or to dr harkin so doesn't that present a problem for your client respectfully no your honor i don't believe it does for a butt but that doesn't answer the question because if a doctor does not know that the employer is requiring something as an essential function of the job and that employee cannot perform that essential regulation that deals with the situation that if there's an essential functions of the job issue the a b a governs and again dr harkins no he says that mr ramsey tells him she is ready to return to work she tells him i know this job i'm the problem is that neither ron she nor heart can do that in order for her to be able to go back to jobs she would have to pass this essential function at least specifically well on it which included a bunch of things that at least according to ms romsey were never actually required for her to do when she did her actual job so i'm not sure how that gets passed the problem your honor if that does not and i don't think there's any record evidence that actually establishes that she could have killed herself in time to return in twelve weeks specifically you know the appellant's argument is based on when she began physical therapy on april th and then they kind of they go through and say that she was cleared to work on may th two thousand and seventeen so she would have been able to return twelve weeks but this is erroneous because she actually started her treatment in february again in february and then all of a sudden she's cleared to work in a less significantly more than twelve weeks at least fourteen weeks which also doesn't take into account the several months between her injury in september and february of  deep need squats or deep knee bends whatever they may be called before she had gone through her full regimen of physical therapy so there's no way to know whether you know whether is she would have been able to do it at the end of it had that had her course of rehabilitation not been interrupted and in fact perhaps had she not really enjoyed herself in trying to do these essential functions t interruption to a recovery she hasn't been able to receive the physical therapy that she was supposed to get to fully recover so so i mean it seems to me like there's prejudice to her and we certainly have to make all of the reasonable inferences from the evidence that there is we have to draw them against the move and party here so why is that not the case that  that she didn't start treatment until april two thousand and seventeen when she actually started treatment in february of two thousand and seventeen so again i believe he is actually fourteen weeks rather than twelve so either way she would be prejudiced by that because she would not have been able to return within was this is right and keep all my up again i was able to hear you yes ok i'll begin by by correcting something that appellate counsel and represent of this court he stated that her treatment began in february of two thousand and seventeen and that she you know that was fourteen weeks from when she was cleared in may that's actually incorrect in february of two thousand and seventeen she was given an unloader knee unloader which is a brace for her knee she then was sent home for six weeks and came back was still having issues and she came back in april she was still having issues and that's in april of two thousand and seventeen is when the doctor gave her a prescription the nd time for more physical therapy so she started physical therapy in april of two thousand and seventeen and then she was cleared to return to work the following month in may of two thousand and seventeen so that timeline shows that she certainly would have been able to be cleared to return to work within twelve weeks  had she taken the somalis and again judge anderson correctly points out that mitt romney has testified also that after receiving a full twelve weeks of physical therapy that she's able to perform the duties of the job point out that you know miss romsey again she's a sixty year old woman she's been diagnosed with rheumatoid arthritis in her knees you know even before she started working for this company she had rheumatoid arthritis in her knees she takes prescription strength pain medicine for that condition ok when she was st hired by h h s she didn't they didn't make her do dini squats so she never did that before she's testified she's never done it before the job yet she's worked this job fine merryweather said she was an average employee so we absolutely do to question whether the detainee squat requirement one even one much less ten in a row is accurately represents the the essential functions this job i don't think it does you know certainly and on top of that it wasn't just me squats it was lunging to the ground touch each needed to ground ten times each leg and then stand on your toes for thirty seconds why that's not just leaning down to the ground that's where you you kneel down until you're five touches your path and she was had to do that ten times over so there's at the very least a question of material fact asked whether  happened because she was never given the opportunity to take even a single day of leave as a result of the company's failure to give her a proper f millennia so she's put into a position where she's got to speculate about what would have happened had they given her notice and it's not hard to believe that miss romsey would have preferred to take f m lightly instead of being subjected to this essential functions test and being fired for failing at so i think certainly a jury would believe that  looking at the the time timeline after she left after she was terminated she has multiple recommendations about good physical therapy from different physical therapists and she's put into a position you know because they fired  mr she was no longer able to get worker's comp treatments until she actually filed the workers comp claim and she had wages from a job so she's put in this position where she asked for a lawyer on worker's compensation in order to get the treatment she needs and they didn't approve her to start physical therapy until the next year in april you know so this delay is by no means mr romney's fault it's the simple fact that she can't afford these treatments you know this is a job that she had for twelve years she wasn't working at the time she's completely reliant on workers compensation to get the treatment and she she's having to get whatever they'll dole out there or whatever that whatever they'll prove and she did her best to get better and she policy that policy states when the leave was due to a team member's health condition of fitness for duty certification from the team members health care provider will be required to verify his her ability to return had the here there's prejudiced stroman throughout this whole scenario and for the if this court worked up hold the district court's ruling you would essentially be saying that an employer can blatantly violate the f mily notice regulations blatantly violated they've got clear evidence that this person is on leave and on leave due to this year's health condition they can deny this person notice they can thereby make it so that they're not they're denied the opportunity to make informed