this case presents two critical issues the first issue is an evidence question and that is whether the trial court improperly excluded critical relevant evidence that supported  claim that he was the victim of disability discrimination in f m l a retaliation and the second issue is one of interpretation of family medical leave act and that issue is whether the trial court improperly granted summary judgment on appellants claim that the appellee interfered with his right to return to work after his doctor released him to return to work on may twenty ninth two thousand nine and we believe that this is the answer this question is controlled by six circuit precedent of hoge versus on the of america in her this court affirmed summary judgment in favor of the employee on very similar facts before you get into the merits of it if you preserve the issue we have your honor we raised it in the court below  precedent i'm going to have a precedent for that but he did he did address the again as a matter of fact he gave a jury instruction that at least related to the issue and any heard or human on our motion for a directed verdict after loud present evidence on the issue that we did not submit the issue to the jury i mean if a judge denies something two or three times does that somehow undo the first denial or something i don't quite understand it i mean the more he denies it does that say  evidentiary issue and you you can see that we were due for an abuse of discretion yes you're here claiming that the judge abused its discretion in regard to the scope of the testimony of the allowed mr rhodes to g yes he gave he gave some women to testimony he was permitted to give someone with the testimony and then we proffer the remainder of the testimony weighing the danger of unfair prejudice be zavvi relevance you should give maximum probative value to the proponent and weigh that against the minimum reasonable prejudicial value to the opponent the testimony from mr rhodes that was proper he was a senior director of human resources at the time of mr chirac extermination he testified on five basic things that i believe are relevant to mr chirac six claims and relevant to the atmosphere of the corporation number one mr rhodes testified that the company had a contempt for individuals with health issues those his health issues related directly to him lowering the the age of the workforce because of health concerns and not returning people from f m outw as was the case was mr mr schrock number two the h r staff that reported to mr rhodes complained about the company's refusal to allow people to return from a leave number three the vice president human resources mr copsey told scott armor not to return people to work after their f m l a leave number for the defendants general counsel when confronted by mr rhodes in his role in human resources said we we don't care about complying with the state or federal employment laws because we've never had to write a check large enough and number five mr rhodes testified that the company's attitude went so far that ms curl karen curl who was a manager in human resources was told to alter or destroy documents to help them in litigation now that's obviously it's relevant to mr shrek's claims for really three  reasons number one that testimony is circumstantial evidence that goes to intent and motive and intent was critical on mr shrek's disability discrimination claim its intent and motive or at the heart of every employment discrimination case and this evidence tended to prove that they intentionally ignored federal and state employment discrimination laws because they had never had the right check large enough they had a distain for federal and state employment laws mr rhodes we also proffered testimony from mr rhodes about their disdain for age discrimination laws think you're saying even though there's no it's not directly applicable that it's tangentially about their motives as to other types of federal laws right and i think if if i'm if an employer or corporation shows that this day in for several of the employment discrimination laws that supports an inference that perhaps they had the stain for the other employment discrimination laws and in this case you also testified on those five items i just talked about they related to the f m l a was disability law etc it's the it's the background evidence that's critical for a jury to understand just like the robinson case where what was excluded was a application for employment that was posted on the law wall that had nothing specifically  it was not specifically applicable to the plaintive but it showed the atmosphere of the employer when they condone that and they reversed that verdict on the basis that two exhibits were excluded that show a approval of the scrim authority eight years for a one judgment call of whether the danger of unfair prejudice outweighs whatever relevant value here and that's that's usually up to the trial judges and it's usually up to the trial judge and that's why it's an abuse of discretion standard now when one judge when the trial judge gave his reasoning at page twenty six of document one fourteen in the record he stated something that didn't quite make sense to me at the time he said the prejudicial effect is beyond belief as far as m concerned quote unquote i think the unfair prejudice is looking at the unfair prejudice to the defendant and obviously this testimony so much revealed their attitude toward federal employment discrimination laws of course it was prejudicial the question is whether it's unfairly prejudicial this was very good evidence in support of mr shrek's claims obviously and so it's  prejudicial but the question is whether the relevance is outweighed by the prejudice and i'm not so sure they've ever articulated the prejudice to them other than they say it's hearsay or these are statements by party opponents this is the associate general counsel of the corporation this is the vice president of human resources what hearsay is hearsay isn't this individual who is at issue here that's clear and wasn't himself laid off and he was laid off and wasn't he just expressing an opinion based on excuse me i'm sorry wasn't he expressing an opinion based upon what he had heard in the general area no he testified he directly heard this from the associate general counsel that's what i just said what he heard in the general vicinity and timeframe that this was going on right but and he was not a person who had some authority over who was terminated who wasn't who was laid off that was another individual so i'm looking at griffin versus finkbeiner and i'm looking at mendelssohn sprin versus mendelson where they they don't let this broad net be cast and find somebody that can come in here and tell us what his opinion is and what he's heard they may narrow it down to a temporal and geographic whether the organization knew the decisions of others and they and you have you seem to be taking a position that that there is no limitation on you can bring in and that's what troubles me ok i'm sorry if and didn't that judge let in some of the testimony from this witness be allowed in some testimony yes yes just say yes he did but he kept out some testimony because he felt the prejudicial value outweighed the probative value isn't that a judgement call it's a judgment call subject the abuse of discretion standard where was his discretion abused then put yourself in the judges because of these for a second because that the evidence that we proffered was temporal temporally related it was at the same time as mr shrek's employment decisions it was from the same individuals that had control over the terminations decision of mr chirac it was the associate general counsel it was the vice president of human resources mr fischbacher it was mr armor and it was ms curled so it's tempora related it involves the same people that are familiar with the employment the decisions mr armor was in charge of the f m l a leave and he repeated this comment and it's it's admis anything here i guess is hearsay but it's admissible when it's made by party opponent and these are statements by a party opponent at the same time as they are considering the term ation mr track and the trial judge was very careful to make sure that we had the time frame correctly that each time mr rhodes testified and provide his answers he was asked when was that statement made and he said march april may june of two thousand and nine it's a twenty six or twenty seven page transcript of the proffer testimony it's temporarily temporarily related it's directly relevant to the state of mind of the corporation with respect to the circumstantial evidence that we need in all employment discrimination cases  and i think with that my time is up subject to rebuttal thank you very much thank you counsel deliberation that even the appellant on this appeal does not challenge is being unsupported by the record what appellant does challenge is the trial court's decision to not entertain further the mily interference claim that had been dismissed in summary judgment first by the magistrate through her report recommendation and second by the trial judge in the trial judge adopted that report a recommendation that the summary summary judgment level the measure judge do not consider it for that for that purpose for that reason and when the measure judges reported recommendation was adopted by the district judge that the argument sort of by the appellant here in this court was not considered at that point either in fact you know the appellant as the court has noted did not object to the magistrate judge's report recommendation dismissing the f m l interference claim which he concedes before this court and that is fatal as well serious theory new theory that the appellate would assert that you may find in this record that that argument has been either forfeited or waived based upon the failure to raise it in summary judgment when that claim was challenged not have been terminated in the reduction in force which the jury here conclusively found on the facts took place in the reduction in force had he not been on f m l a leave at the core of the jury's findings in this case however is that mr chirac was in fact terminated in a reduction in force and that he was selected for terminations a reduction in force because he was the least senior member of his department now because of that  that had mr schrag been at the job in may of two thousand and nine when the input when the rif the reduction in force impacted his department he would have been fact been terminated then but for the fact that he was reduction in force which it did now turning to the evidentiary question that has been asserted also in this case the court is as properly noted in the bill and has conceded this is an abuse of discretion standard i think it's important to remember at the outset that there the evidence established and the jury was necessarily concluded that there is only one decision maker here one person decided that mr schrag was to was to be terminated in this reduction in force as least senior member and that person was deliberate his supervisor his immediate supervisor none of the instances that mr rhodes was proffering to the court that the court ultimately rejected had anything to do with mr aylmore not one of the things that mr rhodes sought to offer to this jury that the trial court used his discretion to say we're not going to present that to the jury had anything to do with the person the only person who chose to terminate mr chirac in this reduction in force that was a very important part of the trial court's determination and exercise of discretion to craft a solution to what mr rhodes could or could not testify to and that is exactly what the truck or to craft a delicate and i think properly drawn conclusion that that allowed mr rhodes to testify to certain things but excluded his testimony as to other things and that was the exercise of discretion that we believe was appropriate certainly mr rhodes came into this litigation as someone who had his own axe to and this was all these are all things of the truck or properly could consider as it evaluated and weighed which yes which evidence mr roti testified to and which evidence he could not testify to mr rhodes came in with his own lawsuit against arno pending for wrongful termination the exact same reduction in force that caused mr chirac terminations for mario so mr rhodes says well ation ship or lack of same with the company really go to the question of the relevance of this testimony or is that something for the jury to weigh in deciding whether to believe him or how much weight to give his testimony ultimately your honor should mr rhodes been mr rhodes testimony was allowed before the jury in some ultimately the jury makes that determination on the subjects by which mr rhodes was allowed to testify but also the trial court has to consider that issue under rule for a for b in the making a determination about if we consider this for what what we believe it is which is essentially prior bad act testimony by arnelle sorting that because arnold has done these amorphous generalized unspecified unproven things according to the former senior director of human resources it all make a determination of credibility with respect to the witness in deciding what portion of the two witnesses testimony should be allowed in the truck or really go at it from a for a for b perspective i don't believe that there is sufficient evidence in the record to establish explicitly that the trial court went at it for a for b analysis but i would suggest to your honor's that if there is a proper a way to interpret the trial court's the ultimate decision under the federal rules in an abuse of discretion standard not interpret this this testimony in this potential evidence under rule for a for b and to my memory or out of there is certainly nothing in the record that said to the trial court said i am not considering this evidence on the question of reform for b but certainly there's nothing that says that he in fact affirmatively is making the determination on that particular rule of evidence so when we do consider mr rhodes his credibility i think is important to keep that in mind and understand that he did have a bit of an ax to grind here and he was he was in a situation that did advance his own self serving interest or considers credibility we are supposed to assess the witnesses credibility in this court is that what you're saying no your honor what i'm suggesting is that it's appropriate for this court to grant the truck or  they administered i mean usually for a for b act that act evidences totally unrelated bad acts that have occurred and there is no relations other than this person has done bad things that have nothing to do with the case here or at least they make an argument that it has something to do with their motives they don't like federal workplace laws period and you know if a is one of them but they don't like the other laws either and that's their motive i mean at least leave they come up with a theory as to how they have relevance here yes your honor the does have a theory however that theory is as broad as you could possibly create to allow evidence such as this to be pretty coming from the jury i would suggest respectfully suggest to the court that the appellants theory in practice essentially makes no rule because it would be hard pressed for good counsel like the  appellant counsel here in other cases to to not be able to come up with such a broad theory that would allow that testimony therefore under this court's decision should that be the way the court rules to bring that evidence before the court before the jury and allow such prior unrelated bad act or you know in other instance testimony to to impact the jury in substantial ways that don't really have any impact i don't really have any relevance to the actual decisions that were made here by one individual who is not the subject of any of the alleged conduct that the witness wants to testify regarding is there any was there any evidence either in this proffer or otherwise that would have demonstrated that the individual who was in charge of making the rif decision knew any of these various things that mr rhodes wanted to testify to your honor and my my belief is there is no such testimony regarding that the person who made the only person who made the decision to terminate mr chirac in this reduction in force was the director of telecommunications in his department his job was limited to running that department i believe ten to twelve people involved involved installing security systems and burglar alarms and fire alarms throughout our nels various sillies around the country i guess what bothers me a little bit is if if if in fact just let's assume for the moment the truth of the of the testimony that was proffered if in fact there was an atmosphere in this company of getting rid of anybody who might be  a drag on the company's health benefits getting rid of people who are and over whatever that cutoff was thirty five years thirty two years or whatever those kinds of things if in fact that were pervasive in the company  wouldn't it be reasonable to think that perhaps the person in charge of making this employment decision would have it influenced by that your honor i think you just outlined what is the danger of the appellant's request here to allow such evidence before the jury because the actual evidence in the case the hard direct evidence in this case was that the only decision mr maker mr ellenberger had no knowledge of any quote unquote pervasive  atmosphere at the company regarding anything regarding anyone any characteristic anything he testified in the jury ultimately accepted that he made this decision be grudgingly over a period of months doing everything he could to prevent mr schrag from losing his job in this tour in this reduction in force because he was a member of his team he worked hard and diligently to find ways to keep him from losing his job and he only made the decision because he had force and he had to implement and nobody told him who tipped who to choose that it was totally and completely left up to him and his criteria was solely seniority and that mr chirac was a lee senior that was the only testimony allowing this testimony before the jury would allow them to disregard all of this direct evidence and direct testimony from the only person who made the decision and make some leap of unspecified faith and illogical conclusion based upon what they heard arnelle does in its normal level of evilness in the back laboratory thinking about how it's going to stick it to its employees who don't meet certain criteria that is the exact danger your honor that this that this trial judge faced and he crafted a solution that allowed mr rhodes to testify about the thing his direct knowledge as to the talent his direct knowledge as the reduction in force and even allowed mr rhodes to testify about his general experience with respect to reductions in force arguably beyond the scope of what he should have should have been testified to but i think the judge they're using his discretion to allow more testimony to give the appellant some way to establish mr rose's relevance to this jury when you look at the difficult decision this trial judge had to face in trying to craft a solution to the rhodes testimony i think it is fair to say the trial judge did an excellent job in exercising discretion and provide mr rove to testify about things that directly impacted mr chirac and the case the riff and his terminations and no more and i would respectfully suggest that that was not an abuse of discretion thank you counsel thank you oh let me address what's been characterized as a broad theory of our case our case not based on some broad theory that they had some anti employment discrimination law bias specifically their bias was against people that had health problems that took f m ole leave now we buttress that with corroborating evidence that they also had a bias against almost every other employment discrimination law which would make that testimony about the health condition in the f m l a much more believable now the interesting fact in this case and why mr rhodes does money was critical it would explain to the jury what happened here because if you accept what the company just told you we made the decision in may of two thousand and nine to layoff chirac presented his return to work slip on may twenty ninth if you had been laid off in the middle of may as they contended why didn't the manager of employee benefits why didn't the vice president human resources say sorry mr chirac we'd love to return you pursuant to the f m l a but you were laid off two weeks ago no they did not do that they waited three and a half weeks after he gave a return work slip on may twenty ninth they asked for clarification his dr clarified on june twelfth and there was a radio silence for eleven days then mr chirac sends them an e mail that says i've been returned to work where is my job and that's where mr ellenberger services and says sorry i laid you off back in the way mr rhodes testimony would help explain credibility on that very issue it would  explain is the company's motives their intent it's hard to believe that when of course they want to run the mr ellenberger because everybody else according to mr rhodes knew mr r actually spoke to everybody else in human resources that was relevant to this mr armor mr copsey ms curl and the associate general counsel now they say he was laid off a may there was no documentation of that layoff mr rhodes testified that ms currie was instructed to alter or destroy relevant documents part of the record is a june second believable that they knew about this reduction in force and yet it took them a month to tell mr schrock after they have told him about his f m l a leave as a matter of law they should have reinstated him on june first and if they to reinstate him on june first because he was laid off in the middle of may they would have simply told him that and that testimony goes to the heart of the case mr rhodes testimony was very very prejudicial to their defense very prejudicial it was not unfairly prejudicial because it went to the heart of the matter did they have a distain for people with health problems did they have a distain for people that exercise their rights under the f m l s e mr rhodes was a senior director of human resources and they were permitted in part of the testimony that was allowed in in from the jury they were permitted to ask m rhodes have you also sued the company so they were that's that's what robinson is all about is if this testimony is prejudicial to them any unfairness can be cured by effective cross examination of mr rhodes bringing out these points etc and so this this testimony is so much more then the evidence that was excluded in the robinson case which resulted in a it's so much more than the rich case judge griffin you're on the rich case and what you found to be a problem in the risch case was that the alleged comments were remote in time three four years earlier and the plaintiff could not identify who made the statements that was your criticism and your dissent in that case here we have the senior director of human resources saying i heard this out of the mouth of the associate general counsel of the mouth of the vice president human resources out of the mouth of the manager in charge of f e m a lately there can be no greater relevant evidence when you're looking at the mo intent and particularly this unexplained silence between the middle of may when they waiter claimed they made their decision to lay him off they didn't tell him that when he submitted the return to work slip on may twenty ninth they didn't tell him that when he came into the office on june first they didn't tell him that when they asked for clarification they didn't tell him that when his doctor gave the clarification on i believe it was june twelfth saying yes i'll tell you again he can safely perform is job they did not tell him that between june thirteenth and june twenty first or twenty second it took mr schrock to say why haven't you returned me to work now mr rhodes testimony should be given some weight by the jury fundamentally it's a credibility issue in deciding credibility you can look at whether or not this company had the case will be submitted look we call the next case