their not being a serious health condition because my client had not seen a physician within seven days we have three points for appeal one is that there was an air france with his f and ally rice during the certification process when he was entitled to provisionally from the lave the next was that regardless of whether or not he had a serious health condition there was a retaliation claim that was viable third were arguing that he did have serious health condition now mr gillum you are counsel of record and johnson person squealing machine proud i was in our court our opinion to a great made some effort to standardize the labeling of f m l a claims and then you walk in in this case and do the wheeling interference is not a lie is not one of the claims we recognize we've spent a lot of time wrestling with how you lay believes f m l a claims well i believe if you don't know you just don't pay attention and it's frustrating well believe you call it an entitlement coins are is what we call it claim the two arguments would be that the the first one i mentioned would be the violations during the certification process that would be violations of three o five and three o seven the other would be on the serious health condition then the discrimination claim would be and when a serious health condition is is a serious health condition i'm sorry i didn't understand your question for here your first your first issue is that is to argue that he had a serious health condition ok but that's not related to what claim are we relating that to say ok i'm sorry  serious health condition that would be more related to the issue of the entitlement client what is the entitlement that your timing well my client had submitted to health care provider certification that  they'd given him to take to his position doctor when when he brought at the end he was limping but able to walk in the health care but it was the benefit that he didn't get well the benefit that he did just talk in process i'm asking what the claim is well the benefit that he didn't get star is that when you are asked to go through this second opinion process you provisionally entitled to it from the lightly and in the event that you confirmed by that second opinion then you're considered to have a serious health condition and you are entitled definitely if there's a dispute you go to the third opinion and basically whoever the third opinion goes with is going to come out the winner of th serious health condition issue and either he'll be in touch with their family very won't depending on what these second third opinions to now the issue so when they asked him to go on do this second opinion he was provisionally entitled to f moily under the certification now what they did was they called him the day before they want to go to the physician and told him that they wanted to go to a physician in memphis he lived in mountain home which is  r curtis basically having been asked to go get a second opinion and refusing to do so and that that was insubordination and job a so i think that does have to do with his terminations because had he gone i don't think there's any dispute miss crane's testimony that had he gone to the second opinion physician that he wouldn't be beginning terminated over some sort of insubordination or refusal to go to memphis to see this position  in any event i mean that's when they fired him is when he refused to do that now the thing is is that going to see that physician you can't do what they said separate notices one is your f m is denied because you didn't go to it didn't show for the second opinion separately was a notice of terminations for not for missing for being absent for days without f m l h without that they may have sent him along just a second i mean they did denies f mily yes i mean that's correct but didn't they also terminate him because he had four days of on excused absences before he even asked his return from work steve did not provide any documentation from a doctor showing that he was seen treated or excuse for more for the basic missed new course attendance policy requires a valid doctor's ski's when a teammate misses work or the absences will be considered four days he missed the first the first work days after the honey injury well i mean he didn't he didn't go to a doctor to leave dillard week twenty yeah well he did bring in a doctor's note that there's when  it was after the twenty eighth that you were trying to i have twenty second through the twenty fifth right now one thing about it is and that's where we get into this issue of clarification no disputed but clearly kelly crane did say that on clarification on this doctor's note that they they considered that they want to clarification and you know a lot of times these doctors you know the filling out after life type work is not their favorite part of their job and though you know they go through and in doing very quickly you know i don't think there's any you know had he been given the opportunity to go get is there a document or anything in the record where mr curtis claimed that claimed f m l a leave for the twenty second through the twenty fifth the five got the date the four days on the monday after he had the accident on saturday that called in on the think the twenty first which is monday and told him what had happened that he was having trouble seeing physician that he hadn't been able to go see a specialist out of the wrong thing on the record that the specifically name the a family bonding now but the you have to you have to have the employer has to have noticed that the deaf and the lay is in the works they've got a policy that says an excused absence without a you very much for honors and mit and may please the court first to answer some of the questions that have come out it is uniform in the record that ten twenty eight thirteen is the first state that any sort of notice or leave request is made i would just cite the court to the following pages of the appendix it would be an appendix ninety five which is dr who ends first notice it stated ten twenty eight thirteen dr when a certification begins at appendix ninety nine but on a page one hundred he specifically asked approximate date condition commenced and he says ten twenty eight and then new course form actually asked him to estimate the beginning date for his period of incapacity and this is at appendix one a one and he hand writes in ten twenty eight and then mr curtis himself we provide him a notice of eligibility that that he actually gets and that he fills out that also has the ten twenty eight date on it his signature is found on appendix ninety six two lines above his signature there's a line that says leave requested to begin on and the line is ten twenty eight thirteen and so there is no question no just certainly no genuine issue of material fact as to whether there was some request or granting or doctor certification or notice that his four days were excused in some way or that he was incapacitated in any way and then to go to the question about the terminations notices in the f m l a denials those are in fact two very separate documents one is founded appendix seventy three that's the internal disciplinary notification which only relies on the failure to provide a note in the breach of the attendance policy for the four days before the leave started that's clear on that then to judge locums observation which is completely consistent with the record there's a second second and separate appendix page at one of the three which is simply the denial of the f m l lately which was properly denied for the refusal to appear for the second opinion so i think that that squares away the record basis for the questions that were initially asked and there is and judge holmes this decision is a very straightforward application of settled law to a largely admitted fact imo i'm confused by why so much time was spent by the district court on serious health condition if if the terminations was valid anyway well you know that maybe you would just say that that means that there's no harm no foul on it which is part of the doctrine of the f m l a of course to say that you can't complain about things and the first count that was presented in the complaint is definitely out am i entitled to this and i think the district court looked at that said well there's two ways you can be entitled to f m l a leave  first serious health condition one is in an acute condition you have to go to the doctor within seven days and there's a you know clear admission that he didn't do that so it's clearly not acute and then there's a chronic and his doctor was asked is this the type of thing that's going to require two treatments a year he says no to that so you know in defense of the district court going through that i think that the court also looked at those facts applied to settled law and said well there's no entitlement that then  yet complete is it sufficient to say the four on excused absences just absolutely this court's has a lawyer the other cases that we cite say specifically that you don't get a more rights to employment under the a than you would have under the normal policies that exist and i think that that is definitely layering in a c s or to all of the even potential retaliation questions that exist in this instance but of course the premise of the retaliation claim is that you're actually exercising rights you had in the district court properly found that there was no material issue of fact on that as well what about the the refusal to attend the appointment that was set up by nucor is that common it seems to have some validity to his concern that he's given a day notice without of an opportunity to reschedule our do another time or another place is that common practice that it's that short notice i don't believe that that is common practice and i don't believe the record speaks to that either way except to say that the memphis area is commonly used for this plant which is close by memphis  r answer to that of course is as i believe you know the f m l a does put certain time limits on certain things and there is no requirement that the second opinion be a lie the timeout and the second opinion idea premised on the proposition that the employee is out of work so because the first you get second opinion if you have the first opinion and therefore the employer knows that he is not needing to be at work and can go up there and then under the undisputed facts of this case your honor it is not that they said good you know good news for you we have a cancellation we can get you in to dr jones tomorrow and that's great and the other two groups did have appointments and you say it's a serious health condition his response to that those that were produced in the case his response to that is i told kelly who is our h r person that this was not a work related incident but a private injury and i didn't feel i needed to go to another doctor after seeing dr quinn so there's no record evidence of him actually saying i would do this tomorrow but i'm not going to do it today he said repeatedly and in this deposition that his this is appendix three fifty six i told kelly that this was not a work related incident but a private injury and so you have a person who has no and this goes also to the harm issue i mean you have a person has no even prior certification for the four days that he was terminated for you have a person who is not going to the doctor within nine days but claiming it's a serious health condition he doesn't want to go to the doctor again even though under the rules you have to go twice within that first period of time to be considered acute and we make an appointment for him in a place that other people have gone and that you know only two people went to in the last five years and his complaint is that because it's not work related he should have to do that and so that's undisputed record evidence out of his own mouth about the exchange now if a case presented that didn't have a person lawfully terminated for a violation of company policy unrelated to this mean that the plaintiff actually had a certification for those four days which he does not have and if that plaintiff said to the employer well i can't go today even though i'm off work but i will go tomorrow that's not this case this is a case where his response was i not going to go because it was a private injury and i don't need to go see another doctor in his her testimony miss crane's testimony is unequivocal at page eighty four from her deposition where he said not going he testified under oath at a sixty four i told them i couldn't make it period that's his own sworn testimony and so we don't have a situation here where he actually said oh dr jones is great thank you for getting me and can you call back and see about tomorrow that's just not this case and so we have this i think very clear record actually because both sides move for  summary judgment in the key passages that the district court relied on are essentially plaintiff's own statement of facts which begin at appendix four seventy three players response to our statement of fact where he admits a way which is that a six thirty nine where  away no entitlement he acknowledges that he was terminated for the employment missing the four days and under the employment policy there is no harm there is no retaliation and the record is crystal clear on  that i believe the district court's decision is a straightforward application of subtle law to admitted facts and medical records and should be affirmed what was the first medical opinion the first medical opinion was appendix ninety five your honor ten twenty not a certification this is the letter that was delivered to the plant that was on ten twenty eight thirteen it's appendix and i could have dr again that's dr again and then the next certification that came in was received by nucor on eleven for which is admitted in the statement of facts and signed by dr again on ten thirty one and that's the one where dr guinn and his own handwriting twice says it's ten twenty eight thirteen you kno was i was getting anywhere so so nucor never made a determination that he had serious health we were going we had made a determination that we met the reg that said we had serious doubts about the validity of it and therefore asked him to go to the second opinion as opposed to having i mean there was not a there was not a company doctor who looked at dr guinn's and said this is this is over no with the record with a picture of him walking to his car and saying this is the stuff that off yeah well mr craig while he's walking on two feet exactly she did do that and therefore we asked for the second opinion but the critical fact for the dispositive thing that cuts through all of this is that even dr again certification starts four days after he had all those unexcused absences it's interesting why go through the family process when he had the independent pieces to discharge and i think that the record evidence is that there were requests made repeatedly to update and provide that in the h r person you know he misses a day and he says that he's her and she says well you need to get this or you could be fired for your attendance violation and never never hear that it was he could have cured it but never  i don't you know that's not a situation that we were presented with but let's say he doesn't show up let's say that some point in time he got a note that said i am satisfied as a physician that he was actually heard on the twenty third and was incapacitated on the twenty third that's a totally different case than the one that we're presented with here where interestingly he claims incapacity on the twenty eighth drags his dear back to the line drives three hours back home goes to the doctor you know nine days later he drives three hours both ways walks in and does it there is no certification that during those first four day period by any physician that he was incapacitated in the way that that's  a did was try to put some objectivity around these judgment calls so that it's not totally subjective and so the premise of f m l a leave is a serious injury or illness and therefore the agency made a determination and through notice you know they adopted regulations that said well if it's serious enough you're going to see the doctor within seven days and it says that in the regulation and if you're going to go under acute you have to do that because there's two ways you can get acute f m l a leave both of them require you go see the doctor  seven days i think with the agency was doing there and made a clear rule on a saying ok this is an acute injury meaning you've had it it's severe it's important you're going to go to the doctor once in the first seven days you have plenty of time to do it so that is fatal to the acute now there is a chronic pregnancy of the different section and then there's a chronic section he can't be under that because his own physician checked the box and said he doesn't meet that so that that just eliminates the acute being able to prove up exactly exactly and i think that what the agency is doing is giving you some wiggle room because theoretically if you have a serious acute injury most people are going to go to a clinic or an e r and know that it is undisputed a mr curtis actually says this that when he called in the h r department said to him you can go to your doctor if you want to but there's a walk in clinic that we have referred you to that you can go to and you don't even need an appointment for there's of course urgent care and even e r if you had to it's just it's such a cut off when and other parts of the regulation  seems to be and within in thirty days unless something unusual ors extraordinary circumstances but the seven day limit seems to be just sort of that i think that it is and i think you have to look at what it's trying to accomplish and i think what he's trying to accomplish is what is a serious acute injury and what and therefore since it has to be a serious and acute injury the regulators can said we're giving you a caution so you would say if you if you suffered a serious and acute injury one that incapacitated you from doing your job i think the regulation and the statute and the rules would contemplate that well when you have seven days to at least go see a nurse practitioner or clinic or do something otherwise you may have to show you have a chronic problem or otherwise maybe if it gets worse you just have to start to leave later which you know he was trying to do here by started his leave on ten twenty eight even though now he's claiming he was heard on ten twenty three of i never went to a doctor so i think it makes sense actually when you look at it and of course there all right thank you in his deposition testimony my client gaited that part of the reason that he didn't want to go to memphis was that he and his wife have a child together that he was responsible for taking t school and his wife had par work obligations and that was one of the stumbling blocks for going going there in any event i don't think they could legitimately require him to go beyond normal commuting distance i don't think they could legitimately require him to go to physicians that they regularly deal with so regardless of why he was his commuting distance his commuting distance he had the issue was that he had two homes one home was very close to the facility the other was in mountain home he had a four day on four day off work schedule and so basically four days he's working he goes and lives and libel which is in northeast arkansas get aboard with his or the other four days he lived at home in mountain home with his wife and child and because he had been off work he was in mountain home and he just didn't you know it was an issue to go it's a really really two lane road area from ou work but it be about a similar distance it would be similar to go into memphis from out to his normal work spot and i think normally probably the closer area if you're looking for a specialist or something like that  in terms of the hunting injury he had that happened on a saturday he was not scheduled to work until tuesday and so i think he returned from pine bluff to mountain home on that saturday i think on well really doesn't live when he's working well that's where he stays when he's not working his mouth how i mean that's the normal place for him to be when he is not on the job is not how you know that you say so you want him four days on four days off he goes the other home right yes sir and i would i would have thought if he was interested in maintaining is is is work he would have gone to the other home and then seen a doctor near the facility on monday well i think the issue was that he thought he you know he had left some left over any inflammatories i think the issue is that he had initially thought that it would probably just kind of get better on its own and by that monday which was the twenty first he realized it wasn't