appeal because the district court wrongly denied her a jury trial where stealing enterprises interfered with her rights under the family medical leave act retaliated against her for exercising her rights under the up m l a and failed to accommodate her disability under the americans with disabilities act we respectfully request that the court reversed the lower court and remand this action for a jury trial on the merits in two thousand and eleven miss new nose began treatment for serious health conditions that were later diagnosed as year in fibroids ovarian cysts and dimitrios us was very open with her supervisors can't walker and jim saying about her conditions her serious health conditions and the symptoms of those various health conditions her symptoms included extreme pain exhaustion sleep interruption and lack of body funk bodily function control and ultimately for termination thirty seven days later after she told them about her doesn't the record indicate that there were a lot of other things going on with her that they were having a great deal of difficulty with her her defensiveness her attitude there's this e mail chain which i would think any boss would find disturbing where she didn't do it she was supposed to do and was kind of truculent about the whole thing so would you concede there are other things going on in terms of her performance your honor we would concede that there were issues with her performance however miss me you know it hadn't been disciplined since january two thousand and ten all of a sudden on and the next thing you know thirty seven days later she's terminated and she was not terminated for the performance issues she was terminated because she would not sign the performance improvement plan because she believed that she could not sign the performance  ment plan because they told her if she didn't correct the issues raised in the meeting she would be terminated and a large portion of the meeting was spent discussing her tardiness her absences and the fact that she had to leave early for doctor's appointment sometimes on very little notice because she would get squeezed in to see her doctor standing was i simply wanted her that i asked her to sign and then just to acknowledge they talked over these issues one of was which was her attendance problem but others were the record indicates they had found she was helping her husband write a screenplay or some she was doing all sorts of things not her job and was having trouble with her job and when  her not to do that i thought she acknowledges that she her explanation was not i'll stop doing that but that she was a really good multitasker so when i asked her to sign this memo tell me if i'm wrong they're asking or simply to the knowledge that that they've had this conversation is is that not accurate that is not accurate your honor that was the case in the with the january two thousand and ten memo but that was not the case here mr saying mr walker and my client with me knows all testified that nobody said they were asking her to just acknowledge that she received that nobody told her that she could wish and they were asking her to do what she said her signature was was was  committing her to do she believed then she told them that she believes that her signature committed her to not being tardy anymore despite the fact that she had just gotten the endometriosis diagnosis she didn't believe she could comply with the memo for that reason and she told them that repeatedly they dispute that she told them that of course but that's a standard summary judgment issue that's a standard issue of fact that should be left to the jury to which there is evidence of an impact beyond the diagnosis itself yes thought that that evidence would have been pretty easy to put on but i'm not aware that it's been it's before well your honor she suffered chronic pain that interfered with her sleep and her ability to get to work on time because of the interference with the sleep in the interference with pain on my client testified that she was in excruciating pain that she had difficulty at times leaving her house she lost bodily function control of which her bosses were aware i mean ultimately she had a hysterectomy that of course after her termination so i mean i guess i would have thought that you might have been traveling down one of two roads either a major life it to be of work or the major life activity of reproduction but at least has to work i mean didn't she acknowledge  that despite the impairment she could continue to perform her duties and the doctor said there was nothing that she needed to do to alter her work i'm not really sure that the work path works and then i'm not really sure that there is evidence on the reproduction side well the evidence on the reproduction side your honor and i guess i need to answer both questions but the evidence on that is she ultimately ended up having a hysterectomy so it did affect her reproduction she became gravely illness was progressing over time and became substantially worse after she was terminated because she lost her health insurance and couldn't get treatment however there's no way to tell when she would have had a hysterectomy otherwise now with respect to the work issue my client testified that she was capable of performing her job but she needed the accommodation in order to perform perform her job she needed a flexible schedule and she does not believe and frankly there's some evidence in the record from the other side too from the defendants too that her performance was the actual technical performance of her job w shows that her disability did affect her ability to work because she was being disciplined for being tardy because of her disability except that she was tardy on a lot of time for many years while before illness and she acknowledges a lot of her tardies have nothing to do with being ill i just pulled up the memorandum and i read that it it indicated that they have serious concerns about her attitude and work performance they want to make improvements talk about her defensive questioned about excessive tardiness failure to get consent before she changes her working hours failing to give notice for lee spending excessive amount of the day working on personal matters and an a difficult work environment has negatively affected the apartment at the end it says she was told the failure to make these changes will lead to further discipline and it says the below parties acknowledge receipt of the memorandum i see nothing in there that indicates that by signing this she would indicate that suddenly she could no longer take leave or anything like that i don't read this as anything but a normal for an employee who's met with her employer just say yeah i read it not necessarily agree with it but i read it you disagree with that interpretation you're right to disagree with that interpretation they're telling her failure to comply with this memo can lead to discipline up to terminations all they're telling us just sign this if that's what we tells you not that you agree with that interpretation well there are also telling her you will be fired if you don't comply a in any event  extensive testimony about why she refused to sign it she made that statement or she gave that testimony relating to the meeting and the fact that she was very clear with mr sane and mr walker that the only reason she would sign it i because she did not believe she could comply because of her serious health conditions and her disability and mr saying he responded to sick that long you've been sick for over a year you sick that long which you  know st of all i think that's evidence of discriminatory and retaliatory intent but nd of all that's also evidence that he had noticed that my client was suffering from serious health condition a disability you know that's an admission by him that he knew how sick she had been and the district court and the magistrate judge both that time has expired i think you will hear from you on the battle yes thank you is that better much better ok i apologize for that i certainly will talk about the law but i do want to say that there i think there are some facts that are quite central to the multiple years that she's been with the company the only thing that they asked her to do was to provide some notice that she was going to be out and to work with them to make sure that the work that she was doing their work that they needed from her was getting done and that is the core of that june th memo with them and the june th meeting with  early leaving or a full day absence she was never she received bonuses and raises every year which she admitted she admitted that her tardiness was never a credit against her p t o bank she admitted that there have been no deductions from her pay so long as she came to work at least five hours a day and so the notion that she was not provided three does require some sort of notice to the employer it may not be the thirty days that are required under three o two but three does say that you know you need to provide and and the judge ruled that if she she did not engage in protected activity because she she hadn't determined or as had not proven that she was entitled to an estimate only right as of determination and even even if the judge may have gotten that part wrong it still doesn't change the fact that we're still going through the burden shifting analysis even if we have presumed that she had engaged in protected activity it doesn't change the fact that there were still legitimate reasons for why her employment ultimately was terminated during that meeting as you all have noted she was asked to sign a document very similar to a document that she had signed in two thousand and ten and we had a meeting with you we they signed the document that they had prepared to outline what they discussed they all signed that she came back with her own version of it they all signed that there was certainly some precedent for the the difference is that over the time she continued or became increasingly combative increasingly defensive one of her bosses jim saying testified that he didn't give her work anymore because he wasn't getting it done her other supervisor can't walk or testified that he was he didn't want to have her do work for him often as well because he didn't know what he was going to get he didn't want the pushback all he wanted her to do was to complete the work that the change was justice and let me ask just a quick question so even if we even if we pierce through to the rd stage of the burden shifting and we get of pretext i mean isn't the same statement to her just before firing her you know no one is sick that long in effect like i don't believe you mean isn't that pretty damning now not not when we look at the history between these acts that statement was borne of frustration it was i can't believe that you are trying to lump everything in to and i think he testifies to this you're trying to lump everything  of these years and it was long pattern and history of tardiness into i've been sick and you know it it is and well so i mean i guess my question if he says it was born  frustration she says it's born of animists so why why isn't that a jury question well the record doesn't support that it was born of animus that what the record supports is has had eight years of tardiness extensive tardiness and she never then asked to suffer any consequences for that she doesn't want to be held accountable and she made it  as she's although she's now saying that this was all because of her because of her or her illness there's there's there's nothing in the record to demonstrate that there were any other circumstances to suggest that her illness had anything to do with them asking her to do be less defensive or less combative or to get the work that they're asking her to get done those those reasons are undisputed here and there are reasons that a reasonable employer would have for deciding that that her that they have an opportunity or should have an opportunity to sit down with her that was the same thing that they had done in two thousand and ten when they had gotten to the point of having these concerns with what was going on with their working relationship they sat down with her and then they were able to prove progress and then these concerns continue or came up again this is no different than what happened then  it increased over time to the point where they weren't getting the work done i mean ultimately her job was to be the administrative assistant that they hired her and asked her to be when that became an issue w became an issue we can't even talk to you about the work that needs to be done we can't give you the work and rely on you to get it done because you're doing your own personal things or we can't have a discussion with you or you're not doing the things that we're asking you to do that with the change that happened over time that was what was going on and jim sane said immediately after that april exchange mannion the client i'm really disturbed by this i'm really disturbed by this and that's when he did what a good employer would do which is to sit down with her and say you know we need to we need to talk about th ultimately whether she was disabled frankly from from our standpoint does not even even if she were determined by the district court to be disabled or not disabled the ultimate question was did my client fail to accommodate her and if you don't mind this is judge news and i would appreciate you answering judge martin's question because you could probably tell in my questioning no evidence of a of her being disabled she produced hundreds of pages of medical records and there was nothing in those records and she testified that her doctors had not said that there that doctors did not require requests that she you know have a flexible work schedule or anything along those lines counsel talked about having the the inability to a disability what she talked about were she didn't provide any sort of parameters or any sort of examples of how long she was having the issues that she fact of where she looks back now considering that she's now had a hysterectomy but at the time there was not that information there and there was not she did not even allege in her complaint that she had that there was a major life hitting that had been impacted by her illness felix position is well she got all the leaves to which she was entitled but that's simply not true because she had a chronic health condition under which she would need additional leave that she would have been entitled to under the f mily and under the idea of an accommodation and knows herself testified well it seems that i was being provided accommodation for the parties in the late sick days but at the end of the day i really wasn't because i was fired and that's on page seventy eight of her deposition  not the art of her own destiny had she simply signed this form testimony as they weren't going to far and of course why would they have the form she signed it she could at that point we would then i it would have polite out and we would have things there people aren't giving her work she's difficult all she had to do with the form is she not responsible for the terminations that occurred after that your daughter no she is not responsible to pull them exactly why she wasn't signing the form she didn't feel like she could she felt like she was being set up for terminations based on her tardiness and i think it's really important to point out i heard what opposing counsel said about her performance but her boss mr saying testified that between the st and only other time that she was written up in january two thousand and ten and her terminations on june th her performance improved she was never written up or disciplined and that's in mr same stuff position talking fifty three she had endometriosis von versus world changers as the case most on point about this issue she told them on april th that she was diagnosed with endometriosis and would be seeking further treatment immediately following that mr walker started spying on her computer he had never done it before that he asked for her attendance from jody johnson the person in charge of attendance and that attendance list that he asked for included parties that were related to her health issues and we also had an incident in sixteen just before that where we have this email chain where she had had not done what he had asked her to do in the client was getting quite upset all happening around the same time ms knew knows this testimony about that e mail is that she didn't recall it at all it was not out of the ordinary it was the kind of e mail they normally had that she normally shrugged her duties and they were always there always having to tell her to do things and she refused to  do that and not at all your honor that's not what she said she said this was the way that they communicated they discussed back and forth they were like a family is the way that she testified about it they had been working together since two thousand and five and he never raised the issue with her at the time he did not really do apologize if you might have explained this already and i was taking notes and missed it but so in the they would have understood the material but yes your munoz the myth that at no time during her employment was he ever denied or refused th and saw that she was being written up for things that she thought she was being accommodated but more importantly that issue is this when they terminated her point she no longer got the leave to which she was entitled and the ca was very clear that if you have a continuing entitlement to leave a terminations is that an interference with that continuing entitlement to believe as dr martin said you've got to kind of like s claims on your claim so i'm not really so much thinking about the firing of the discrimination but you do have a failure to accommodate claim right correct and so does that admission in the statement under the material facts not sort of  that when they decided to terminate her the accommodation went away ok all right i'll figure it out thank your honor i appreciate the time today we appreciate