please the court you may proceed good morning thank you very much for agreeing to hear oral argument on this case my name is amanda right check and i represent the appellant michel jackson who is the plaintiff in the district court proceeding michelle jackson  brought two claims of the family medical leave act and interference claim under twenty nine u s c twenty six fifteen a one and a retaliation claim under twenty nine u s c twenty six fifteen a two even though there are literally thousands of cases that state that claims under a one are entitlement claims where the employer's intent is immaterial the n s f has argued and the district court accepted the application of an honest belief defense to defeat this claim that we believe this is improper and it is a further position that even if the honest belief defense is available to be n s f in theory it fails in its application to the facts in this case the interference claim i mean assuming you're right there's no there's no intent for that you have to show but you only have an interference claim you're only intitled to leave if you're an employee right correct so isn't that why this whole thing ends up being wrapped up in whether she was properly fired or not i mean if they sent in a fire if they don't have grounds for fire for firing her yes she was entitled to leave i don't think there's any dispute about that but if she was properly fired then a non employee doesn't have a title meant to leave right correct but it's our why doesn't it why isn't it all wrapped in to whether she was lawfully fired and i know you say it was retaliation and that we have to decide it isn't doesn't happen the whole case yes yes we're here before because my client was fired and we believe that her firing interfered with her rights into the f m l a she was filed what a firewall she was on f m away and so our position is that by firing her the employer interfered with her rights under the statute but it all turns on whether the she was unlawfully retaliated against no there are two different claims there's an interference claim which is entitled that claim well i don't understand the difference but it could act as if she was lawfully terminated how can she have a right to leave because she was was terminated because you're saying if someone's on leave in the employer lawfully terminated them because they found out they embezzled thousands of dollars at the employer the employer is well within its right to fire that employee because it's not a strict liability right so it all comes down to what i say it all comes down to whether they were awfully fired her it sounds like correct we agree on that ok so tell us why they yes and a lawful terminations would not interfere with her rights under the f m l a because people only don't have superior right right so that's why it seems to me the whole issue is whether she was lawfully terminated which the company says she was you say she was unlawfully terminated because it was retaliation for exercising her leave that's right that's right  the same set of facts gives rise to two different claims and the first is one where intent is not important it's it's like it's a prescription of statute in that respect it imposes obligations on the employer and it cannot escape those obligations by showing that it made any sort of mistake because its intent is not material the same set of facts gives also gives rise to retaliation claim where intent is important and honest belief if the honest belief defense has a role in our position is that the court in permissibly used an honest belief defense for an entitlement claim where there is no statutory availability for that claim  what was the disability of this lady that the employer knew about she took family and medical leave act for depression she took family and she took f m ali for depression she was diagnosed with depression this this goes to the eighty eight the t c h are a claim but we believe that we have enough to show that they had the knowledge that the law requires them to have now ms currie just who made the decision to terminate my client testified that she did not know what my client's disability  however she did understand that she had an impairment because she was entitled to f m elaine leave and it's our position that that's enough for regarded as disability discrimination statute if and ploy meet certain requirements that employee is entitled to overtime and it is no defense to say for the employer to say ah my bad i thought this was an independent contractor and in that case the intent is not important they meet the test they did over time cobra is another example when an employee is terminated they get they have cobra health insurance continuation rights they get those it's a matter of statute there's no ifs  ands buts about it the family medical leave act is somewhat unique because it contains both it has one provision that is prescribed of which is called interference claim and we've got it second type which is proscript which is the retaliation claim and in the retaliation claim it's perfectly fine to look at the employer's intent because in that case the burden is on the employee to prove a motive the employee has to show causation between their leave and their term in nation they don't have to show that in an interference claim and so for the district court to have applied an honest belief defense to the interference claim was improper  know she was they thought she was faking or leave her she goes to be on say concert she's not responding to their messages why is there a fact issue that can show it was actually they were retaliating for her taking this leave because they don't meet the requirements  honest belief defense in this case because the council i mean you you keep coming back to that my difficulty in this case is getting past the facts and i know we hear because of the legal claim i can't get past the facts what they know is that she's out on family medical leave and there is a claim that she has some impairment of disability which renders are incapable of doing her job but then she shows no we recognise that there could be impairment a disability which is not apparent but there is no apparent impairment of disability and then they make an inquiry post concert and declaration is i have not as to take meetings my doctor hasn't released me to take meetings so i can't meet with you or talk to you which seems inconsistent with being at the disclosure at all about what's wrong with you know and in fact be an assessor delegated those determinations to a third party administrator metlife so that there's no reason for  o ask about that they do and i do suspect it i believe it is that my so my kids know some i have three kids sometimes they're home from school take the day off because they're supposedly sick in the morning and i've had times when come come six o'clock they say oh i'm feeling better i want to go to my friend's birthday party and i say no i don't get everybody it just doesn't look right you're home from school you shouldn't go to the party now maybe i'm being too strict maybe the company was being too strict in taking the view of suspicious you're at the beyonce concert but you can't show up for work but why aren't they entitled to have that harsh view point that if you're not good enough to work you should be good enough to go to the luxury suite at the concert because that's not the standard on the f employee was shopping taking trips attending bug games and social functions traveling with her son to a basketball camp out of town into an out of town birthday party watching television shuttling her children to and from school and sports practices the employer argued that the employee was therefore not incapacitated within the meaning of the f m away the court help the court is not convinced plaintiff much show an inability to perform daily activities if she is able to show she is unable to perform her work and her absence from work was necessary incapacity requires absence from work as a necessity or an inability to perform daily activities there's a department of labor opinion letter if i'm away when i was sick or the sight on that eastern district it's two thousand and it's a it's i have a lexus site it's two thousand and seven us this district lexus for four five six and this is from page sixty three the department of labor has issued an opinion letter f m l a one of six states that is long as there employer makes an inquiry about what's going on and you are non responsive to the enquirer they still don't and they have some suspicion that there may be some mis representation with regard to the disability you don't even have to respond to your employer i wouldn't go that far but in this case it would have made a difference because they were right about the fact that she attended the concert there was nothing to investigate she went to the concert their honest belief defen goes to a misunderstanding of the law and my client couldn't have done anything about that if she were to have met with the employer her therapist told her don't meet with your employer her employer was the reason she was on leave she called the f employee assistance program when she got the call from the employer and she said you don't have to go but it's not your argument that your employee can completely fake needing to take leave and so that's what they were suspicious of right and i understand your point that you don't have to be sitting at home you could be taking leave because you can't go to work but you're able to go to the grocery store unable to go to church but that's different than saying you're faking it and they had reason that was their suspicion rightly or wrongly and they're trying to further investigate their suspicion by talking to her and she says not going to talk which would only heighten the suspicion but in a reasonable person's mind in this case there was no legitimate purpose for his courage as to question my client ms courage is was the director of h r but she had delegated delegated these matters to metlife so she was insinuating herself into the situation so they let her it they didn't they want to gain interrogating her until this question is raised after the beyond say concert was there any problem before the beyonce concert that you can point to where they were questioning her and her leave admission terminated her because she went to that concert while on leave we're not asking for extra rights we're just asking for the same rights that the n s f extended its employees not only and that distinguishes our situation from the honest belief cases cited case and the poor is allowed to terminate employment based on an honest belief of leave abuse because the undisputed evidence shows that is exactly why give us acted here summary judgment was proper i'm going to try to cover three points today release touch on three points and in addition answer any questions that you have first of those is the first one that was just festering this write checks argument the legal point as to what framework is here we do have to claim we have an interference claim and a retaliation klein but under this court's decisions the n s f acting on the basis of a legitimate reason for discharge in fact does defeat both climbs both the interference claim and the retaliation klein this court has very squarely said that him in the miller case as well as in the caldwell case in which judge costa participated and there are some other cases that say that to grub takes the line of reasoning the judge costa was discussing earlier that if an employee is lawfully fired that necessarily extinguishes the the right title meant under the f m l a and the miller and caldwell cases are just much  more they just say as a matter of straightforward matter wall that employers acting on the basis of a legitimate reason defeats both types of claims so that's the state of the law that we're in here that governs this this panel and it does then turn on the legitimacy of the determination of employment and one of those legitimate reasons for terminations of employment is an employer's honest belief that an employee is misusing  abusing leave that is the basis of an employer's action that is separate from a part different from the actual proper protective conduct of taking a leave of absence now because i understand the opposing argument to that it is that an employer cannot act on the basis of an honest belief of leave abuse because leave abuse has the word leave in it and therefore necessarily relates to the leaving an employer can't can't act on that basis and one of the cases we've cited quite a few cases in our in our brief about on a suspicion of abuse from the third circuit in the seventh circuit one of those cases is the carry otus case out of the seventh circuit and i bring that up here only because i heard the comparison earlier about cobra which is another statute that grants rights and a point that out because carrie otis actually involved both the same two claims we're dealing with here interference claim that the employer's on a suspicion of leave abuse was sufficient to terminate employment and that's because there's a difference between an employee's protected conduct under the statute and misconduct that happens to bear some relationship to protected activity and we've given an example in our brief that's that's a bit extreme of an employee taking f mily paperwork wrapping it around a brick throwing it through the window just to make that point that's probably not going to happen but that's just to make that point that you can certainly have activity conduct it's related to leave it's still punishable and then no court's going to say well you can't punish that employee because the employee was by doing that submitting f m l i paperwork and the employees on leave and was submitting something that the employer would require a closer to home example would be this court's ac decision where the court said that there's a rule in place by the employer of reporting reporting in regarding f m l a days and the court said if the employee doesn't comply with that rule the employer can terminate employment in the court said terminate employment in that case it was a disciplinary layoff but the court said the employer can terminate employment even if those days are f m l a protected and that's conduct that's clearly wrapped in a related to a familiar activity and the court threw that distinction and it's something that courts have drawn it's a line that courts have drawn in the employment statutes for for years and years since  title seven retaliation cases when you have protected conduct that happens to be wrapped up with misconduct and the other line that's been drawn the other point that's been made for years and years is that unless you've got an employee with a good cause contract or a collective bargaining agreement with a just cause provision the employer doesn't have to prove actual misconduct the employer is allowed to rely on its honest belief that misconduct and that is sufficient and has been sufficient under all these other statutes and same is true under the f m l a and we've cited all of those cases that involved on a suspicion of leave abuse that support that but even if we didn't have those we get the same place by looking at miller and caldwell and this court's longstanding discrimination cases involving employee misconduct and on employers on it's belief or sometimes it's called honest belief sometimes reasonable belief sometimes good faith it's all the same thing let me ask you a factual question yesterday so there's a b and c concert there's a voicemail over the week in the plane of calls back and says give me just give me some time and says my doctor has released me  and i asked for a little patience during this time and then the response from a jar is you know a lot of you know you need to be in touch by the end of the day why doesn't that show that they weren't giving her a chance they didn't really  really interested in flushing out whether there was leave abuse i mean it just makes sense to me that you would say i need you to get back to me after someone's been told that a doctor hasn't released the person to meet two things about  that the original request that prompted that e mail was to either meet or to just call back and have a phone call and so they're there didn't need to be a big meeting mr jackson didn't have to come in and have a meeting should i just called back to score this and explain that and and so then the response in is my doctor hasn't hasn't released me to meet and miss choragus gets the the e mail back saying well i haven't been released to meet and she's you know she's thinking well i didn't didn't require a meeting you could just call me in you're able to type and e mail and though you were able to go to the concert and then second she testified that well by then i'm thinking that this employee is abusing a leave so if i think she's abusing leave why would i allow her to continue on abusing leave without trying to answer a question and i know she's not you know the evidence shows she's not in a situation where you know she's she's in a hospital bed or otherwise incapacitated and can't talk because i know she would call in certain i know she's able to e mail  and i will say that she did you know she didn't just person this chorus didn't just get that e mail and say oh you're fired she wrote back to her one more time and said no no as you point out no no you don't understand we need to talk to day or your your job is in jeopardy and even then she didn't she didn't terminate employment at the end of that day she waited until the end of the following day still hadn't heard back from or in then she sought approval to terminate employment so i mean this is a situation that perhaps could have been altered had mr jackson just picked a phone and called her and said what do you want to know when you know maybe she could have got an explanation that would have would have change today but we don't know when and that's that's why you have to look at this is not just an issue about one of the concer one of the concert and then her reaction this was mentioned earlier her reaction to the employer's attempt to look into it was there a doctor  said well there's two things her therapist said not to me and that she also testified that the in house e a p which is essentially a medical provider in house and so they don't communicate  that that person had also said that now the notes of that communication reflect the opposite but obviously miss jackson has said otherwise but our point that we've made about that is that the edger person didn't know any of that miss jackson didn't say you know she just said my doctor says i'm not i'm not released to meet she didn't say i've been advised not to talk to you on monday able to talk to you my medical condition is such that i can't have a conversation about this you know anything that would have told the h r person you know somehow i've got an employee that is able to go with cancer but is in some way you know incapacitated in a way that she can't have a quick conversation with me to tell me what you know to explain that inconsistency and what miss choragus knew the only thing that she knew about her medical condition was the two e mails that that were received on may second the first one at the earlier part of the day when miss jackson left the work place and said i'm taking sick time for the rest of the day i have a doctor's appointment and will follow up and then the next one later in the day i've seen a doctor  not well to return back to work metlife will be forwarding paperwork for me to be off on short term disability that's record three eighty five in three eighty six so you have an h r person that sees an employee saying i'm i'm now in a way that's certainly suggests an incapacity of personal incapacity to function and then hears about her going to the concert and in fact the way the whole concert issue came up was that two other b n s f employees were at the concert saw miss jackson and they thought it was unusual and so they reported it to miss jackson supervisor who then reported it to the h r person and all they knew was that they had heard she was out sick in the just knowing that they thought it was unusual enough to point to so there's certainly enough here for an h r person to not haul off and fire her just on hearing she went to the concert but to want to look into it and ask questions about it and that's what she tried to do and unfortunately mr jackson just closed the door on it and didn't do it in a way that explained any reason for closing the door on it that if we get in getting sort of my third point here about about the evidence itself the pretext issue most of the arguments relate to the you know the basic false are unworthy of part on a belief of leave abuse it says defendant terminated plaintiff because in part i believe the plaintiff was not entitled to medical leave based on her attendance at the may ninth concert so when you take that admission that w away any attempt to prove pretext and the only thing that would be left would be an effort to show assuming that the motivating factor standard applause which is what parties have assumed in the briefs it would have to show that although that was one reason there also was a retaliatory motive and the only effort that's been made there has been to point to evidence that in fact doesn't show retaliatory motive toward protect citgo case and unpublished case but in a footnote it it makes the same point that case also involved an employee who was accused of lying about taking a leave and the employee pointed to the employer's conduct in hiring an i think that i've covered everything that i'd like to cover so i'm happy to give back time if there's there are needed more questions for me we're happy to take it thank you very much thank you   there's no they could articulate his courage could articulate no reason why she needed to have a why she being paid i mean company policy usually can pay for the leave i think she was covered under a short term disability  like to just point out that we in reference to mr neil's brick analogy we would never take the position that would insulate an employee from the term nation there's a regulation directly on point twenty nine c a far section eight twenty five point two sixteen which says an employee has no greater right to reinstatement or other benefits in conditions of employment than if the employee had been continuously employed during the  ms jackson had violated some sort of policy by tending to the beyond that concert that would be another story but she didn't she was penalize for being on leave washee attended the  concert and that's just not supported by the law speaking of regulations twenty nine see if our section eight twenty five point two twenty c says employers cannot use the taking of f m a lightly as a negative factor in employment action such as hiring is promotions or disciplinary actions but that's precisely what they did and what they've admitted to do in this case doing in this case stylings i don't have that cite in front of me immediately but it stands for the idea that employed can prevail under an interference period he was denied substantive rights under the f m l a for a reason connected with his leave taking these regulations along with the entitlement language section a one of the statute itself it's clear to me that the n s f interfered with her rights under the f m away when it terminated her in the middle of early with turning to the issue of whether or not honest belief is available to defeat her retaliation claim it's appropriately consider at that stage because intent matters so in theory that defense is available to be n s f but in practice it  s and the reason is is only in line with the case law to be entitled to benefit the benefit of this rule the employer must show that its belief was reasonably based on the particularized facts rather than on ignorance and mythology  employer also has to an opportunity to show that the employer made an error too obvious to be unintentional in this case misc misc courageous is an attorney she's the director of human resources she had been for sixteen years but she also was a practicing labor and employment attorney before she went into human resources she testified to a solid understanding of how the family worked i walked through the standards and she admitted that that in order to be qualified only needs to show an inability to work and she testified that she understood that one could be entitled to f m alike and still be physically able to go to a concert in their free time so in the face of evidence like that it's obvious to me that she did not make she did not have an honest belief that she had violated the family by attending this concert she testified to a very clear understanding that she was not for closed to it for attending that from attending that concert washers on l