court we have recent the legislation from the oregon state legislature which addressed trembly leave which according to the legislation has a retroactive effect and we've asked the courts to take that under consideration essentially what this case is of route the center of this case is a point system to mobile had obviously when i first got her case i was seen as a point system case a simple matter of looking at their points system and looking out the reasons for why they terminated mr cameron and to see if any of those points were given to him for any illegal improper reason as the court has before that has a number of facts that show that they did take into consideration but he was absent to care for sick children and under oregon state law did not add up to over the limit unless they included one or two days that he was absent to care for sick children not supported by a doctor's note and that that's months yes there is from his own custom already and then from some of their own the records say their records are very conflicting when we asked for records even before the lawsuit and after the lawsuit in response the records in their own records defend his own records about having noted that he called in for a sick child so that so their own conflicting records records from one department saying  called in no reason given the same day the same location salem calls sharon and that person noted that he called in for a sick child so what you have is  a lot of conflicting records from the company itself showing that he did call in and identify reason and then other people didn't put down the reason so when you look at the law that applies to a company of that size with that number of boys they were required to keep those records they were required to keep people informed of what their lot of what their rights were under the law and the record just  if i remember correctly had a least three policies of one card regarding absenteeism with mr cameron was there any wasn't there that long period of time how many points a day say he had i can't recall as the record shows this company has tremendous amount of data about each and every thing that's done each and every thing that employees do in terms of absenteeism i don't i would not given the facts that you have before you i would not tell you that their record of anything of that nature is accurate because they you saw you see in the records that a week before the final summary judgment they came up with additional records which tried to support their summary judgment motion but actually could be viewed as supportive of the plane a total about february sixth and seven speaking  yes if i understand their distracting record with that period indicating he asked for vacation days on those who does and they said no we can't do that and then he called and s but there's nothing in the record that indicates that the defendant felt that he had called and had lied when he called and i believe i've included testimony from his supervisors that stated that he didn't lie about anything  o that on the record is something that occurred it wasn't a lie it wasn't made out they didn't go on vacation or anything of that nature there's nothing in the record of that nature at the moment or anything in that sure i understand your answer to jury and original question if you exclude all of the protected lead did they or didn't they have the right you have cause to still fire him for his other actions two or something on an earlier period of time that's not material to their decision to fire and they fired him for his absences and that six month period and it didn't add up to over four and last you included his sick child please and you have a doctor's note for the november eighth and ninth i believe that is that shows that his son in fact had to go to provide equal treatment so that's that was the focus of the case in the beginning she did take those into account and let me be clear you know on a historical basis she did not have to testify that she had no specific recollection of any conversation with him about absence right track she had no recollection of his affidavit or testimony i can't remember right now we have said that he did tell the employer whether she remembered it or not whether they wrote it down or not his testimony earlier it's believed or not is another question but he did tell the employer contemporaneously on i think three occasions during that six month period and i guess my question for you is the following in view of the fact that we have to take the facts in the light most favorable to the plaintiffs in this procedural posture of the case and and the manager concedes that absences were taking into account that might have been related to this why isn't that a factual question from  fact finder looking at it that the employer's decision would have been the same with five absences were since eat since they let him get all the way to meet they obviously didn't do it at number four so how do we know without a fact  into account there is there is no and she did and you are eighty nine she said she took into account the absences including the ones where she was aware or would have been aware that there was a sick child involved right but let's be clear about the she has lied about that she was in her deposition was referring to what was placed inside of her was a the right of the written warning or the requests for terminations i should say and it recounted previous documentation none of which indicated that he called he called in sick so you know i guess i just don't understand why there aren't issues of fact to work the employer knew and what it took into account well let workforce management or resource planning department and policy required that the employee call in when they're going to be absent call into resource planning or workforce management the name is changed and their supervisor and the records you're looking at  one sixty eight are the product of workforce management conversations with the employees the records begin at one twenty six are those that are entered by supervisors but  supervisor not supplying to well it's actually consistent with some of the testimony where he was unclear about who he exactly call sometimes he was sure that he called workforce management but he wasn't certain that he called the supervisor so there is the opportunity for those to conflict and that information that goes to workforce management i understand one company would hope that everything gets back around but sometimes it doesn't in an organization of this size and there's nothing in the record that his supervisor believed or understood that either of those any of those absences those three that we're talking about were for a sick child and therefore there's no reason to there's there's no only called into workforce management and didn't call his supervisor and that give that to the difference that at least potentially led to the supervisor relying on some of those aides that she had no idea why found the question really is the company knows companies companies you know the big thing in this got all these pieces and the company know and she in fact did look at the you know it may indeed be that she would have fired him anyway especially after this fun and games in february but that's not entirely the question for  decision she did not have the not even though we can talk in terms of the company as a whole the large corporation knew the key question  know when she made that decision and there's nothing in the record suggests that she did let me change gears for a second this is the diversity place in the federal court was obligated to apply state law right and as a district judge specifically declined to follow the oregon court of appeals decision instead followed took a contrary view of the law what do we do about that shouldn't we reverse that and tell the district judge to go back and reconsider the case and vital organ will well the district judge  well because the analysis that the district judge applied here followed the analysis of judge uble after the decision and jaeger took supplemental briefing in that in that  well know as the as the district court pointed out they're not bound by any intermediate decision they're bound by a decision of the supreme court that's true right well that's about fifty percent true i think i think it's you would hope that they were well they have to be right when you get up there you have to convince us they were correct not that they kept now but this record kept following other district judges but that all those folks were correct