on this appeal concerning the family medical leave act the district court had dismissed on a summary judgment motion however there were remaining claims under the rehabilitation of the proceeded because the court had denied summ judgment on that count therefore the summary judgment werder which is found it a joint appendix to the document one twenty five had entered a judgment water however it was not final because there were remaining claims it actually been i mean that the order the order is without prejudice and that means that it can be reinstated and i think we need it at this missile with prejudice in order to have then this hiring or fire anything else however the statutory language of the f m away is not required that high of a burden set forth in twenty no u s aid twenty six eleven which defines an employer to be anyone who acts in the interest of an employer directly or indirectly talks about the acts of employment the act being and you know there are there are circuits that say it is not with respect to the ultimate cause of action against an individual passages in the public entity or with respect to the definition of respected to supervisors within the public entity and their actions right that i think that if you of course we think that the district court properly found that there can be individual liability recognizing there was a state of authority in the courts however that issue we didn't appeal i don't think there was a cross appeal anyway filed why i think that the district courts that have spoken to it certainly up or in our circuit uphold the possibility of individual liability i don't think that that issue really was brief because i don't think it was the civic i taken up on appeal that is correct there are there are certain splits in authority however  individual liability looking at the facts and in this case all of them suggest in our favor which is mr mintz you know had signed the termination what you are presupposing we have made the initial decision not to follow the fix that issue it does is that an issue that they would like to take up an hour or more of the number one mr mintz you know that sign the terminations letter and it's in the joint appendix at ninety nine so that's certainly a fact that is persuasive second at joint appendix ninety five which is a memorandum that was prepared by mr mintz you know to the director of human resources after the term a nation decision he writes as per your request i will he says briefly outline a summary of the events that led up to my decision to terminate and this is very insightful because this is mr mann senos decision to terminate it's not just the formality of citing a determination letter it was upon his input his recommendation and as outlined in this memorandum it was his decision the fact that it was upheld by judge motto is does not defeat our argument there can be individual liability of the cases that are discussed the ability to hire and fire they discuss whether there was involvement in the decision that we know the facts of this case that there were three individuals  who were involved in the discussion but it was all based upon this demand see no as the supervisor to make the decision to terminate his performance evaluations are very insightful and this miss a partner was excellent all scores with the exception of her attendance due to health issues very insightful into the very heart of why the f m away is necessary and why it provides protections to just see doctors to you know reasonable absences from employment so that she can get the treatment that she needed during the proposition that subordinate decision makers cannot insulate themselves just by the higher up the rubber stamps a decision i believe so you are but i was not involved in those negotiations as a matter of fact i didn't know about those negotiations until i saw the order come from from judge lanka brief to judge lang castor the the concept that he should not be held up based point six circuit rule however what judge lancaster found in this case was was fairly s or mr paul's position is that because mr means you know acting as he did within the court system which was as her supervisor went up the chain of command did a did a analysis did his job as a supervisor and then went to his supervisors in other words as the court knows miss a bargain all the employees with probation apartment are in effect state employees although paid by the county and in that the final decision maker is the president judge of the court who is a state employee a member employed by a o p c in this particular case the facts are that was put on probation that according to mr mann seen no she did not improve to the extent that he believed necessary but there is another piece of this which was  included during the course of the suit a geisha and discovering that being that there had also been investigations done by two other supervisors in the probation department that had to do with issues involving the management inappropriate and you are you are presenting the position of the appellate but if one looks at this from the viewpoint of the appellant which he is led doesn't he say that she he was hospitalized for an extended period of time and then she was fired for taking this extended leave which qualified under the f m that way what i believe she does your honor suggests that she had been hospitalized and had been fired and alleges that it was because she took leave she never did the facts are that that in the record will show during the course of discovery that miss haye barger did not apply for f m l e that ms hey barger was aware as the office manager who was responsible for passing out all of the documentation in terms of warrants county's f m l a policy i never once requested of mr mann  a that she need to time as a matter of fact historically because she had been hospitalized out for diabetes and heart related issues she had taken her paid leave which was vacation time there was never any the allegation is that she did that however this isn't a situation in which the facts of the case in from ms hey barger herself is that she never gave notice to her employer that she wished to take resources department as to whether or not she was intitled f m l a or how she would go about even making that determination so if your position that the f m l a issue is an afterthought that he never asked for it beforehand absolutely wrong because the the suit against the court system was based upon the rehabilitation and that she was sable person needing a combination and the question in that part of the case nor did he tell her she couldn't hope for i don't you want to think nor did she ask if she could think nor did she ask if she could tell she never gave appropriate notice of something new i guess is the way that i want to put it she had gone in the past had been granted extended leave she had taken her time there was evidence that they had worked with her in the past over this and that she never came to them and change i believe it has your honor i believe it was in in my not not before this court not before this court and if i don't think it was raised by the before i think this that what was focused here on was th i believe you do your honor and i think that that's part of this is well is is the issue of cases that judge motto he indeed he did your honor and also indicated that he had personal knowledge of other issues specifically one that had to do with her failure to comply with billing cycles properly that at no point in time was there ever any discussion of absenteeism due to health issues judge moto suggested as stated in his affidavit that he did not know about those and also stated that had he known about those that he would have his view she should be terminated and made that recommendation as he had to do to judge moto judge mottos position was that based on his own knowledge of things that were going on in that office that terminations was warr employer who cannot be subject to f n l a retaliation is now being subject to that and we raise that issue below under eleventh amendment argu knowing not your honor what i'm suggesting in response to judgment i ask this question is that there was in order to hold mr mann seen no libel one has to then presume and prove that he had a discriminatory animists towards miss haye barker based upon a protected class issue in this case there has been no evidence produced by and a motion to dismiss in both of those cases the motion to dismiss were denied because the court indicated that further discovery was needed to make a determination as to whether or not the supervisor of been sued was an employer in this case we have a summary judgment motion where there had been discovery where there was an affidavit that was submitted them about the terms and conditions in effect of employment which is what judge lancaster ruled upon which stated that judge moto had personal knowledge and made a decision and there was nothing indicated to counteract that so the idea of whether and part of that was that you pal i in her argument to the lower court suggested a and used to stop argument and the court then differentiated by suggesting you needed some evidence to show similar circumstances as in stop in this particular case we raised the issue because we found it's thought was there and asked for our state but not based because we did not know at that point what the staub issues were here we know it and there have been cases since then in which the courts have determined that you need to show some some more evidence  ms hey barger as the office manager was the person responsible for taking the requests and those requests then went to the human resources or so his position was no i'm not supposed to monitor what she does and that if i don't know the answer to the question she's to go to the human resources department to do that you haven't insists that from this quimby who was human resources director that indeed that was the case and this hey barger never went off on it would fit under the definition of a lawyer in the f m l a i would your honor if those were the facts yeah but i think in this particular case there were differences in in the haydock case which was cited you had a city manager who had the ability to make a hiring and firing decision without any input from anyone else in this particular case a o p c and the court system vests that responsibility in the present judge barker well i don't think that there isn't an initial material fact there was never anything raised in the lower court as to whether or not mr mann seen ohad what his authority was what was raised was what did he do and what what was his role as a supervisor but it always came back down in terms of factual issues to the fact that it was not mr mann seen zero who had authority to do anything other than recommend if you so chose this plan or reaction to the president judging it was president judge who made the judgment not to sign off that affidavit which is what judge lang castor suggested was that he knew personally other things that were going on there that were involving this a barger and he felt that that terminations was warranted based upon the totality of the circumstance thank you i'm not sure how much you want me to get into some of the facts that were mentioned here but briefly i'll just respond on the issue of notice under the f and the lay is clearly a factual dispute i can see it in the jury's structure right now in the facts are that  husband when she after she was hospitalized had talked to mr archibald and advised him of the need for leave but what we're really getting into here is at that time the county's policy which is in violation of the f m l a as we argued below to judgment or he didn't have to get to that because he had found that mr mintz you know didn't have the hire and fire authority but these are all issues that are hotly disputed below similarly with respect to who is responsible for administering the f in a way as as mr joy had mention the h r director mr quinn he had said that it was you know mr mintz you know responsibility mr mintz you know said it was miss haye barges responsibility and there was an awful lot of pointing fingers and again i think that because of that policy that they had in place at that family medical leave she never used the magical words family medical leave act but she certainly advised of her need for medical leave of absence particularly when she was hospitalized when she when she knew that she was going to be out for several weeks so absolutely yes to that question without using the magic like so and that's perfectly permissible under the  employer be terminated i mean this i think it's very clear today that and based on the record that all of this generated from mr mann ciena dating back to the the very original performance evaluations and they are particularly insightful because mister miss you know had written that she met or exceeded all performance evaluations you know three except for attendance and specifically says due to her she needs to improve her health issues i mean this is particularly insightful into his state of mind in his decision making process that led to the probationary period that led to his decision really to terminate i only go back to that memo in zero five where he writes to miss quincey my decision to term