and at this time of here year in versus capital district transportation good morning the morning your honour's my name is ronald don i represent margaret yet meant she was a bus driver for the capital district transportation authority because this is a motion for summ judgment case facts are everything the i can briefly summarize them the margaret yet man is a pretty sympathetic pla she had a very difficult and challenging task ahead of her as a single parent who had a son with severe autism and a lot of medical conditions associated with that she had a daughter with a high risk pregnancy she had she had a right to seek family medical leave and he and she did and she did with granted and capital district transportation authority granted in the application of that authority and because there was a quite a bit of intermittent leave here and i would submit some confusion on that the authorities part as to what you can and can't ask somebody when they put in for leave in what you can and can't require over the course of several years it was probably eighty instances which the record reflects that there's eighty instances of family medical leave act qualified events which she gave notice to the employer on which she was denied that he denies that it's fine but on this record these facts there's about eighty little what what that is so she was under a great deal of pressure she was being pressured because of her attendance and in the face of it pressure she resigned there were some up there was that's that's correct late june and then she resigned in really july and he said you know if you if you call you know she just missed work and they said well you know you know you can call in see if you have a problem she said she did and turned out she didn't do shoes and willing and able to prove that you yes but it's not like she's being confronted with you're fired and then she wasn't fired she was  understand she resigned in the face of all of this which which presents you know lots of context your factual questions there's no doubt about that there's not he's a very mature i mean he can text you a question to pretend she resigned she resigned there's no doubt about that so then there's some intervening events her son is placed in a an appropriate residential treatment an educational facility so she no longer is going to have these kinds of intermittent leaves her daughter gives birth to a healthy child thank goodness and moves out of the house so she's never no longer going to have to have those intermittent leaves connected with available series of jobs there were several auto open in there available she's denied and and this record oh when confronted with the reasons why she was denied the person who way to defend his conduct later it's not like there's a piece of paper or a record of him parsing that out previous so we have a make records of every time they don't hire somebody if you hire somebody or have a record but if you don't hire somebody where it's what we're going to document you produce we hire someone we hire someone with an extensive record of family medical leave a applications that's the distinction this is not this is not a hiring case this is who we are you in case a many times did she receive criticisms for absence that were not family  there there was on these facts and this record the way that you call a and as you call into the dispatcher and i don't think you're being responsive i asked how many times was she did she receive criticism more than once more than once and there was a constant debate between her and her criticisms and did she object to any of those she did and she provided  with evidence of look i these were family medical leave act absences and he denies it he received them that's fine and this these facts and this record there's a question of fact as to whether or not she had that back and forth with him that's and in each case sorry but i understood judge here's his question to be whether they were non family and medical leave act this is for that there were but there were some absences were not justified absolutely and in she agree with those some of them yes some of them no and that's the nature of the discussion with her with her the person who was the deciding official that some of them i agree with some of them i do not the authority has a policy it's a rolling year policy of the called mrs or events and you get twelve any year if i'm ten minutes late that's considered a miss it's just it's the same whether it's ten minutes later i never show up at all and i'm not arguing you know for the purposes of this motion are you saying that the progressive discipline starts after twelve any year or more than two in a month yes so if in a single month there were three misses you would have a counseling you'd be called in and you would be counseled and there was some of this going on there's no doubt about that but the question to the to my mind the the mistake the easiest mistake to find is that we hire a case because there is no discovery so right yes and just to go back to my initial question the person who you claim was responsible all this at the front and for refusing to rehire her well that's incredible but were there any documents that undermined that plane a direct smoking gun document no anything yes i think the level the number of f of legitimate her daughter who is now delivered a baby and was living somewhere else yes so what reason is there to think that she was denied rehired because they thought you would take family and medical leave ac because leave because family and medical leave act is inconvenient for employers there's no doubt about it but you just said in response to your cures of question the cheat explained that the circumstances that had  precipitated such leave are no longer existed correct and and and but for the invidious nyssa of some perceptions that give rise to do retail ation discrimination mike lee video but i don't and the reason i don't is because that's just the nature of the context of these these are very difficult cases and because of that the the problem is that this got to a jury as i understand what you're saying unless some something else came up you'd be asking them to speculate about a number of different things relating to the decision not to rehire well not really because if he if he's articulating what what's the  there was a prior discipline in your record where the discipline was grieved and you what we instated that was three years prior to her resignation and plus attendance and i just and some incident on the that she failed to report three years prior to the resignation there was a there was a woman who who knocked her leg and there was a determination that she was fine and then there was an f a event at the end of route for a tour and she did not report that but that was three years prior to the resignation so i find it in credible and i think a jew i can find incredible that that's part of the rationale palmer i guess i guess i would like to start where mr dunn left off on the last issue in response to your question your honor if i could there was plenty of discovery here and there was ten depositions that the plainest took of other individuals including union representatives and no one came forward either way the smoking gun that mr palmer real reason for not rehiring was that he didn't want to have someone who used a lot of f emily if there's no smoking gun there was no there's not a scintilla of circumstantial evidence that he was if this was a pretext what he said is that position as a pretext or the reasons for putting on the rehire form no i mean as you point out your honor he had stated super superintendent palmer stated that after  resigned he completed a form that c t a provides on a terminations or resignation that form has a box that says is this person subject to rehire and he check so then months later when yet reapply for several different positions on human resources looked at the form and saw that there was a check mark for you know they the deposition testimony of those individuals were up was that they called palmer and they asked them simply are you sure is there still unknown he said yes it's and he's the ultimate says you make you in that in that regard i don't dispute that your honor because well everyone there were three people in the human resources department who we rely on the superintendent so that's not an issue that's not on the radar right so i mean if you're honest the question really is  the question and a summary judgment cases is either a material and genuine facts it seems to me that what the plaintiff is trying to do here is is simply expand summary judgment  to the proposition that well it is a question of fact for a jury to decide about credibility and although we don't have any evidence not circumstantial or direct or otherwise that mr palmer i is that it would be natural and even if it was just for an employer to refuse to rehire somebody who had had extensive  absences notwithstanding that they were privileged under the family medical leave act but he had said the only evidence in the case and the record is that palmer said he didn't even consider any of the absolutes absences that were due to the family medical leave time and every time that request was made she was given proper documentation proper paperwork to fill out and she was granted a leave if i'm i believe there are four different  requests your honor she was granted leave for her own condition in november of two thousand and seven she was granted leave her own condition in april of two thousand and eight she's granted leave for her a one time where she wasn't granted leave and the evidence is clear that all she needed to do with respect to implementing the days that she needed to take that take under the green and leave all she needed to do was call in and say in after your deposition and put a deposition and put in a declaration after the fact well this is what i really did i really came in afterwards and told them you know we need to go back and change some of these states then every single pla f after that deposition can defeat a motion for summary judgment after the papers are filed by person together a good story in a fact without anything in the record evidence with respect  to the claims for individual liability of mr palmer that requires well two things that requires an employer and the and the court below made a determination which i would assert is really  in order to be an aider and abettor you need to have a claim that as a stablished against the employer itself and c d t since they're all dismissed you can't have liability here from from mr palmer unless the court has any other questions on completed with my you know are you on that bench i can't use the standard summary judgment i can't say it better than you said it in that case in these kinds of cases it's very rare that somebody admits i didn't  discrimination context all across the board the courts say that the plaintiff is given wide latitude and you can prove a case by attacking the incredible mess of the stated reason it's just that simple one last point on the individual liability i think that the cases are pretty clear it's economic realities testimony v f l us say that's also in this case and so what law was simply wrong thank you thank you both we will reserve decision