always and so that's one question but i'm asking a broader question is it the district's position that only a statement to the effect of i am now requesting notice sorry i am now requesting leave under the f m l a because i have x condition wrong with me is that the only thing that will do or is something less than that i think it is something less than that based upon the a what i'm trying to get at here earth thinking about with this case is the idea that notice actual notice not constructive notice constructive notice says to me that you didn't really have noticed that you should have but actual notice can be given by conduct as well as by words and when somebody is falling apart in your office why isn't that noticed by conduct well i think st of all when you look  crying she testifies that she's crying uncontrollably in the principal's office in this office and weirdly enough missy testifies in the jury may have thought this was a little peculiar that  down her face but she somehow doesn't consider that to be crying well the jury might have thought tears coming down your face is the same thing as crying and there's testimony in front of the jury that she is emotionally falling apart in front of the principals so why isn't the right way to look at that especially in a case where mental illness is issue why isn't that actual notice by conduct well i think that in certain circumstances it could be and if we look at actual notice what we have here is that the only thing she ever said regarding it was one line in the transcript was i'm thinking i'm i might have to leave for medical reasons but asks in a sense for an accommodation she asked can i go to a ten month job that would be an accommodation for a family purposes radiate purposes but she said she's not using lawyer language for sure but she is kind and she's leaving early and she's coming out and she's crying why can't a jury take this as a situation in which notice has been given to the district well i think certainly the jury based on this ruling did find that there was some notice but i think when we look at the why is the jury so mistaken fifty b requires us to throw their verdict out because well st of all we don't even have to get to notice because there was no serious health condition that rendered her on able to perform the functions of her job while she listened to the evidence that was before the jury she's displaying emotional difficulties and then there's have a day from immediately after her time at the district to fourteen that the various people indicate can be extrapolated backwards two weeks no one's asking to go back seven years a brief period of time to say this condition didn't just spring up the day she walked into my office it's been there but when we look at the idea of a serious health condition and put put no work restrictions on her whatsoever and knew all the reasons she came in and she said i'm switching jobs i'm starting a new job tomorrow and i'm nervous about it and the doctor didn't say oh my gosh you're not able to go work at  job or you're not going to be able to perform the functions of that job the doctor put in all work restrictions on and she did in fact go to work at her new school district four days and then one thousand and ten days after the dr gloss and visit she's in the e r correct but when we think about when plaintiff was employed now the synthes a jury question mean that's what i'm i'm trying to could the jury have ruled in the district's favor absolutely i don't have any question about that but did they have to i think when you look at the standards for the under the thumb l a for a serious medical condition no doubt about it in certain circumstances depression and a issues are hard to detect and in certain cases it's just not this case because there's no medical testimony whatsoever that ties in to the medical treatment that she was having before to that issue persisted even if they had persisted with you is that correct yes they did they didn't talk about the that the onset of those symptoms mainly based on her report to them about when those things had be because of that if that was the case certainly dr glisten the very st time she went to the doctor would have said you have a work restriction you can't go to this new job tomorrow in fact i don't know how you are working at your prior job but you're not able to go and start that brand new job with all the stressors involved in that but yet she did and she didn't ask the doctor for a note that i can take back to district to fourteen if you want to just quickly summarize you're running out of time jury there's no argument as to that particular journey instruction being improper so what's your strongest evidence that as of the time she was working at district two hundred and fourteen she was already suffering in order to reach that diagnosis you can't walk in one day and say you know i'm feeling down i'm crying a lot tighter seal come back to me in a couple weeks and if you're still feeling that way then we may have a problem but more significantly all of the symptoms that she when she breaks down and says don't do this to me in other words i can't do this assignment she can't you know just because somebody is present i had to say if there are a lot of employees around the world who show up and go to work and can't really do their job but for whatever reason the employer chooses not to fire them and for whatever reason mysie chose not to fire her i believe the other and showed in the jury believe this because the last thing missy she could afford is to be without an assistant at the beginning of the school or sell ok it looks like misspelled there is kind of off her rocker but let's just get through this opening day because i need somebody there to be my assistant when clearly the symptoms that are manifesting showed that she had really lost all control so my biggest problem  points out the doctor doesn't say don't go to work go ahead the next day here's some pills go to work you your case seems to impose on an employer a level of medical sophistication and surveillance that it's beyond what even a doctor was asked to provide but i actually that that's not quite correct  we believe the f e m a requires and what this court has held is that an employer isn't required to diagnose a patient an employer only has to know under the notice requirements when something is happening  that the doctor hasn't been asked for fitness to work evaluation there is one later there is no later right that there's a question as to whether that even went into the issues of mental health which i don't it was a work physical or not an evaluation by is what the employee takes to the doctor and ask specific questions about the diagnosis the prognosis is the employee able or not able to work and what this case is about is that they never provided her with that form so right now we're just speculating as to  and your point about the regulation and again we i'll get to the way rishon a minute but your point about the regulation is correct constructive notices still notice much like in the title seven  construct of terminations as still a trauma nation it's still an adverse action and the elimination of that language so why are we calling it constructive now does constructive notice mean to you that the employer knows that something is wrong but hasn't quite figured out what it is or is constructive notice notice it doesn't somehow reach the employer but it should have because the employer like wasn't reading their emails for a week or something well it could it could be any of of those things where the language that was deleted from the department of labor to regulation was that no notice is required under certain circumstances what i'm saying is that there's a difference between constructive notice and no notice so clearly before with the old regulation an employee could provide observed under the new language construct of notice just like a constructive discharge in the title seven contacts is completely consistent with providing some type of notice that triggers the employer's obligation to say ok something's going on here w is designed to protect people who are ill and particularly in the case of mental illness where they may not know what's going on on to protect them if they're acting out of sorts to the degree that was acting at least as far as the evidence came out in this case to trigger the employer's obligation to advise the employee that they may be qualified for leave give them the form and then the ball is in the employee's hands and that's just not you know that's that's what i think you know we have a constructive notice with the behavior if you want to call it constructive notice but then i think it also depp's into the realm of direct notice because in the context of this job which is  school job asking for a ten month position is de facto asking for time off because all of this was taking place over the summer so she saying to miss a c can i switch to a ten month in other words can i take the next month and a half off before school starts and so that looks like i'm nearing the end of my time i did briefly want to touch on the waiver issue i just wanted to point out that for purposes of the instruction as written number one this is the seven circuits instruction in the draft pattern instructions that i use drafted by this quarter a relevant right regulation both parties relied on this instruction now an object was nobody objected to it and frankly just to clarify i've got ten seconds here at no time that the defendants ever bring up the argument that there is no constructive notice because the regulation has changed not the motion to dismiss motion for summary judgment pretrial conference jury instructions rule fifty a motion rule fifty b motion there's not a single sentence from the dependence saying that this regulation happening in her life me and said the court is right in the record i'm nervous about starting my new job tomorrow and the doctor did not print put any work restrictions on or it's also important to note that in that week between the submitting matter  not tie that back to district to eleven he didn't or to fourteen you didn't provide that opinion in the week between when she submitted her resignation out rule that district to fourteen had cause her mental illness just had happened none whatsoever but she not only did she w she doing her job at district two hundred and fourteen in that time period she applied for accepted and went through the medical portions for two other jobs which was a little extraordinary ok well i think we have your point