leave act that's simply false one doesn't need to have protected leave in order to be entitled to protection from adverse employment actions being taken on account of a failing that leaves invok provisions of we're taking family leave that's simply not a requirement that's expressly stated in the eager case and it only makes perfect sense because without that general principle the minute somebody ran out of leave discovered that she didn't have enough hours in for the prior year there was a significant question around that when she st availed herself of that weave she was under the impression because of the work that she had done over her lunch breaks coming in early staying late on other days that she had made up that time as it turned out the way her manager reported time to this standard minister just put o'clock hour on it hours in or she was a so those additional hours that she made up were never recorded that was the central there's a dispute about that whether she could have done that but let me ask you this you know they understand under  that to the extent leave under the yeah that is a factor in one's adverse in an adverse action against an employee and here is determination well there's some evidence here but it is you know it's extremely minor and what what what evidence is it that show that there's a genuine factual dispute over whether or not ever us took in the can you know it was a that her taking a family leave specific so going back to the statement by the by the coworker when when was that statement made in relation to the terminations there are those statements were made prior written while to that background that are just going going going to the mat how it was handled by the employer who was there ever any did they accommodate her request i mean i know mr woodward i think is it was his right that is that your honor but what i want to point out there is what mr hooter and upper level management shows is the disjunct going to corporate headquarters in chicago and the people on the ground in or and the problem was that with what was or our request was well was it leave was it that she asked for leave was she on top protectively when that statement was made or was it after she had exhausted her protectively that was after she had president so you're not answering my question you don't know what it was reeve throwing to you but there were unprotected absences by the time that comment was made is that right that's correct your honor but the thing  failure to follow its own policy in regard to how to handle determination that policy is critical to this case because it's an e r one hundred and thirty and it provides for st an oral she had pretty much left the job she stopped calling in that's not true your honor what happened was she called in and said i'm going to be absent for a number of days and the employer simply said well let's wait they ignored that they destroyed the voicemail message where ms reman called in and said i'm not going to be there and then they terminated her saying it was a no well they did not i wanted to then what what is there in the record the prompter heard a call in and say i want to come want to talk to you about my determination because she saw the writing on the wall your honor she understood where this was going she knew exactly what ever is wanted to do and where things were headed just because she recognized that in real time doesn't make their actions any less any any law more lawful it's still it illegal terminations given that the motive for it was her significant use of protected  and those are the two individuals that spoke with ms reno on the phone those are the individuals who were involved in the final area and allison hicks was behind not only failing to follow the on the employer and employer that decides no we're not going to tolerate that under the law can certainly not tolerate that employer that says well we can tolerate some of this but not alive and they're free to do so an employer that's willing to indulge that kind of leave is likewise free to do so problem is here this was a permissive policy that could have been followed in order to get to the point where they found out a look with and all we have to do is a comedy and some meetings here letter we're good little bit ship different shifts here let this be different which was fully within its own policy and they did not do so instead they just fired her they let me ask you that we have one other kind of technical question so you know they gave her she asked for permission to start her work day an hour earlier and ended an hour earlier is that considered family time of or is that just an accommodation you know just an employer saying well you are we're getting these are generally nine to five but we're going to we're gay to four or seven to three or whatever it might be done it's just a different time and typically leave my understanding is if somebody needed two hours off at the beginning of the day and just took that time off certainly that would be a move to schedule that's just flexible schedul artie's is in the state in that case it should be obvious that the f m l a is not implicated and does not protect an employee against disciplinary action based on absences if those absences are not taken for one for plaintiffs especially when there is no dispute as to whether the absences being disciplined your protection there is no dispute here she was being disciplined for unprotected absences this court has recognized in several cases including does very little work it doesn't help plaintiffs and these kinds of attendance policy cases because of course the minute that employee exhausts their protected leave the employer has the right to then apply the attendance policy treated more favorably than for example the employer but absences lied for a place you did not take leave and only discipline employees you did take leave or is her alternative theory in this case or a disciplined women it wouldn't i don't mean to suggest is the only evidence or that required but without comparing her evidence you would need some other type of evidence to show that kind of has put forward some of that evidence which i will turn nine terminated there's no suggestion that they were disproportionately women are disproportionately people who aren't protected but that doesn't mean that in her case it could it could have been you know she took extensive family leave act on him over a period of understand your argument or your stating your honor but you would still have to understand you still have to know what there have to be some evidence that the way in which they acquired their attendance policy deviated for the norm to regardless of whether they were tired of it  at circumstantial evidence of intent just as it would in any discrimination so the kinds of negative comments that plaintiff has alluded to in his effort to show that there was a culture of hostility like to address that argument specifically so that's one of the two arguments remaining is there is a page two of the reply brief and you heard him say it in an oral argument to the fact that after a long series of protected absences i'm reading from the brief and schedule accommodations to allow mr iemma to care for herself and her family every management in the portland regional office grew to resent ms reminds us protectively and had in management's words grown quote tired of dealing with it there's no context to that statement remains as i say who said it or who said it or when it was  page two aloud it turns out that i am tired of dealing with it is a statement made by scott hawkins with respect at the end of two thousand and fifteen with respect to very specific in august that were protected he's tired of dealing with unprotected absences there were five and those are referenced on executive cirebon two thousand and twelve and then those the insensitive remarks about her family members which were attributed to unnamed coworkers in management it were five years old there's no maxes and your honor to answer your question and i guess this is judge whether it has to be you have to show comparative evidence well no not strictly speaking but if you're going to try to bring in comments showing a culture of hostility there has to be under this court ruled you know there's a comment by lance richards saying oh that's right you need to leave but mr richards was never supervisor not involved in the application of the intended policy in two thousand and fifteen really need to come up with a bird the solution to adequately cover the desk as he mentions below she meaning the point of as a variance to work performance  today makes the th day that jennifer has been absent so scott hawkins is working for a solution to this problem of her pattern of absences these absences  combine it with later and get rolled up into a counseling session on august on october th where there are i believe somewhere in the order of fourteen absence don't know that's in the record your honor is to what they believe one way or the other but by the time they got to the october th sit down h r was involved i mean this was a process and she was counsel and she wasn't given points for all of those absences she's only given points for some of them and she was told very clearly you need to start coming to work on time and when you get to work  evidence in the record whatsoever zero evidence that ever has was not following its policy the way followed it with everybody else gets back to the comparative problem it's not required but without it how do you sit here and say that ever has wasn't following its policy where is the person who is allowed eight absences in a row who called in on monday and told their supervisor i'm going to call you later and talk to you about my terminations and then didn't call and then didn't call for the next forty eight days whereas the individual who ever has allowed that to happen and they didn't term it i mean that's the critical question here you have a neutral policy no evidence that it's being applied in a neutral way it's very before your time expires i want to ask one more question just trying to get the sequence of events straight in my mind there was a complaint or complaints made by customers about the plaintiff not being available right correct when when were those complaints made in but i believe it's yours in other words so she had a five year but a six year employment history and they moved a kuster her from her she wasn't adversely affected in terms of her position or pay but because of the hour she was keeping it was frustrating to the client so they moved that client to someone else and have been approximately two years before the application of the tenets policy and again anything surrounding that if there had been a negative comment around that like geez you should have your customers moved whatever what's the next between it's application of the time is ours and i see my time is expiring if there are any questions you but i'd like to just address a couple quick ones one is the idea that somehow the one hundred other employees that were designed the nine that were terminated show that it wasn't being their policy wasn't being improperly or not followed in this instance that's simply there's no way to determine that there's no evidence about any of the details regarding those other employees so that's off the table if they wanted to have that kind of comparative evidence they could fully have presented they didn't they simply put some numbers of the tell you nothing about the circumstances the other thing is you can just look at the policy there were two steps that we choose and title to and even i really would urge t of review that policy closely even at the final stage when somebody has had a last chance agreement and failed to comply with it terminations is not mandated it's a possibility and before that happens w happen is that offsite management feel the folks in chicago who are overseeing this who are already corrected portland once when it was violating is right it's down to meet with the employee to determine what's going on what is the why are you missing these days what's happening here what can we do to make it so that you can be there that's on its terms not been followed in this case and if what they're saying is this alternative theory well they have this catch all below if that was the case why didn't they just use that to begin with the begs the question why did they use does no call no show provision at all ok it was just about the absences and they believe that this catch all policy covers everything we argue that it doesn't but if that was the case why wouldn't they just go out that door all of that