claim should be rewards for about five to six compelling reasons force bursaries and involves the medical sort of occasion on the plane to submitted her medical sort of vacation on march twenty six there is there are extenuating circumstances in this case and the doctor himself said that she should have the next treatment within a week which is seven days she couldn't see the doctor because he wasn't available and said considering the difficulty in getting a doctor so for example let's say it's seven days or some big natural disaster or something you going to bring the plaintiffs are not meeting the seven days when the doctor himself the whole purpose and seven days was to ensure th she presented that medical sort of education she was entitled to leave at that point protection applied here is the here's the and this court's decision in grows the audio just recently said that when the plaintiff presents a complete medical sort of occasion she is then entitled to leave the benefits of the act the seventh circuit and that's consistent with other cases and the regulation the regulation says when you submit a complete this sort of occasion pending she states very clearly that she was in pain she couldn't continue working and therefore she had to go get treatment so she states as ourself the medical evidence also backs it up said it was not an emergency something that could have been pushed off by over thirty five days so how does that square with the idea that this was a serious medical condition all very different you don't have to have serious you know dysfunction and balmy harm of course no we don't need that that's a distraction from the rule so here in this case the plaintiff states clearly look at the condition started one or two months before it got progressively worse it was growing it was getting more painful she was a medical clerk she walked all day and it was affecting her ability to walk wear shoes and be late on someone so she said look i can't take this pain anymore and they might fire me but i i just can't work anymore i have to go get treatment so she went she got the treatment the doctor said yes you need to take care of this immediately or soon as you can it's urgent and she got the medical treatment and it fits the definition there were multiple treatments the treatment on motion by the defendant for summary judge the defendant and the obligation to prove that he did not come within that dish what evidence  several things on the record makes clear that the plaintiff was not at any point in pass at it so whether or not this would likely the doctor dr said heinie specifically said that there was no condition that was an emergency there was nothing that put her medical care in danger i also think it's important not to look at  subsection two isolated from the beginning of the provision of twenty nine c f r a twenty five one fifteen we the statute that interpretation would do away with the very purpose of the statute the statute specifically says and does as does the congressional history and the legislative intent that surgical procedures that are typically performed outside a hospital which this was right outpatient procedures are not generally covered by the statute it is not to say that if god forbid something went terribly or right that which was not a serious health condition at the beginning what i would say is that because of the statutory scheme that this is a case which was perfectly suited for summary judgment that it is for a district judge to read through this difficult statute and look to see whether or not a plaintiff can make out the prime aphasia elements it can be very compelling that somebody was uncomfortable or impeded and therefore they didn't come to work the purpose of the f honor what i would say is that the plain reading in the plain language of the statute makes clear that this shouldn't go to the jury with we're still talking about one fifty and it is incredibly important for the court to focus on the language it talks about continuing treatment to receive multiple treatments multiple treatments or recognized in the statute to be things like god forbid cancer somebody needs radiation they need chemotherapy we absolutely do she didn't receive anything but monna she went in for a elective procedure where the doctor told her he could take more conservative means that would not require her absence from work and she chose not to pursue those  so i don't believe they were treatments for the condition as required so so the first time was when she presented on the nineteenth that wasn't for treatment she went tell him that she was uncomfortable he looked at it and he had offered the conservative a non surgical things that he could have done right there in the office she then proceeded on the twenty eighth to walk into the outpatient facility and have the elective procedure where they  are not treatment no i wouldn't say that your honor in fact if those were the facts of this case we wouldn't be here today given i'm not talking about i'm talking just about the aspect of whether when one has surgery to treat a condition and one hypothetical that you gave is absolutely f m l a a a rupture or of appendicitis requires an overnight stay in the hospital so what we're talking about are the types of things which were not in my opinion meant to be covered by the statute it is clear that the f m alay is not meant to cover every type of leave every type of physical or mental condition you may be right but but i'm just talking about i'm just asking you about your argument that when one returns for supervision and monitoring of the recovery from surgery that's not treatment i don't think you could find a doctor in the world who would agree that the treatment if the treatment begins with surgery to remove something that that arguably is appropriate to remove or whether it's appropriate or not that the follow ups are part of the treatment i mean if you ask a doctor at the outset tell me everything that will be involved in the treatment in the garci well the first day is the surgical removal the second stage is you come back to see me to see if the surgery is healing properly once twice three times whatever  it is men who want to argue that those are all part of the treat i would absolutely agree that any doctor would tell you that a but that's not what the statute says because if that were that he says treatment well but the statute also says issues whether you have proved that she was not entitled that's the issue with the you on your motion to summary judgment proved it and if you're banking yourself on the fact that she didn't have multiple multiple episodes of treatment i don't think that's a what you're on i wouldn't say that we're banking on it what i would say is that when this case started the complaint alleged incapacity in treatment if you look at it the case was litigated under the first provision under a and the section of the about having multiple treatments for restorative surgery or a condition that would likely result in one was never part of this litigation so the question is think is important to understand is again you look at the complaint and this is a case where the plaintiffs said that she had an emergency situation she had it in under you want is there any before the leave on one of the things as it was found to be harmful it was benign and the doctor said that she could have lived with it for ever in it never done anything and that it was purely an elective surgery that from a medical perspective there was absolutely nothing that one required it and no less required it to be done right there in an important way i think was that the doctor told her that it had and she knew that it had not been approved and that the doctor had time he said don't go back to work for this period you can go back later on in april and right it would if you actually tested so i just slightly differently i believe his testimony was that his general practice is just for purposes of protect that he tells people probably wise not to go out he didn't tell her she absolutely couldn't walk and in fact he said he has patients that do go back to work including he said lawyers and other people right away so it wasn't he couldn't go towards the beginning of the nothing to do with the current situation about whether it's covered the condition this is a woman who had a history of of problems with it hearing to the rules and the policies in the procedures had been granted multiple  a leaves during her employment with you know and didn't get terminated or anything like that that is not the hospital's policy what happened here is she came in like she had had before she was on the last chance agreement interesting late and that said if she did this again and went ahead with scheduled surgeries which interestingly assuming her you went to that this fit into a a serious health condition there is a provision within the regulations that say for scheduled medical procedures like outpatient procedures those always require thirty days those are the emergent type i don't believe we need to get to the newest provision because of this but to specifically answer your question about what's going on the reality of the f m l a in today's workplace is that most employers do not question do you have a serious they don't look to have something it they want people to take europe what they need to take care of but they want to do it in a balanced way a way that allows business to be run that in a situation like this that it when it is in can be planned whether or not it's technically a serious health condition to let people take the time but if everybody came to work and said i'm not coming testimony which is provided in the records specifically says that he did not provide any additional treatments and did not do anything to treat the neo plasm and we believe that a doctor's testimony about  that's the only answer well no your honor i would say it's the only one i would also say again that the rest of the such it is the force of first you have to have a period of absence to receive the multiple treatments and then the rest of the statute says and those treatments how to be for restored of surgery yes and then to write it is so we redid it together it's any period of absence to receive multiple treatments for going to to a condition that would likely result in a period of incapacity or more than three consecutive days in the absence of medical intervention or treatment such as cancer open friend chemotherapy is because your in your honor it is that she did not receive any multiple treatments and there is the doctor has made clear that there was no reason to think that this would ever result in any type of in in any capacity if not the recommended two forms of treatment right either conservative treatment or surgery that yes what this statute says with these regulations is is whether she would and three consecutive days of absence in the absence of any medical truth so weird you find anything that the doctor says that if this is untreated if you don't have either conservative or surgery nothing will happen it won't matter you won't have three days where the city said your honor i'm i believe that the record says and i would be happy after you know we finished today to to supplement to the court i believe that there was testimony from dr sutton nonny that said that she could have lived with us for the rest of her life and not required anything but that it was purely optional again that this was not a medical up oh i'm kinda it wasn't a condition that had any impact on the plaintiff and i would be terminated her previously for not providing you know and then they told her if you get leave again you have to give thirty days notice but but you can't do that you have to follow the statute of course you can't waive the rights of the statute and you can't change the take it over because of his pride in his feeling and they were correct way when they saw the condition they had approved similar conditions in a pass on any of the nine and you correctly concluded here again that this condition one this is why the never saw the one you want to need to know if that's the incapacity to be referring to and that's very typical in fact surgery causes incapacity of norton supposing you have completely elective frolicsome surgery i just would like to look better and so i go and have this surgery and surgery called causes me incapacity does that qualify it funny fines or incapacity body of might be another issue raised whether or not you can do it within a week you summary judgment where it's not met or it's to sort that it's better there's a genuine dispute that should be resolved in trial and at minimum there are numerous disputes in material back in the in the record and in the case you just need one  declaration i told him it was painful and many took off to show he said oh he touched it and i meant i went out oh like she was actually describing something she was feeling he said oh you have a painful lesion up in ferment and he went on to describe home was