five twenty seven record travers versus l copartnership doing business as for rising wireless arguments not to exceed ten minutes for playing to five minutes for me yes fifty minutes for the defendant ms collins for the good morning morning he's the court my name is heather collins and i'm here representing the appellant patricia travers in this case mr travers presented sufficient evidence to the district court that a reasonable jury the district court erred there are three issues in this case that we're going to focus on this morning the district court erred in granting summary judgment for these three reasons number one there was a notice issue and that was where the district court dismissed her one of her disability kind saying that she was not disabled under the a d f a and that case that well for this point the defendant had waived that argument in their summary judgment briefing because it had to do with the prima facia case and so case they did not dispute that she was disabled but nonetheless the court in footnote seven of its order said that she had not brought together enough proof to show that she was in fact disabled and so the notice issue is one issue we think that that's problematic and a rule fifty six f and that you know in her briefing she said she basically gave the background of the law and said that you know there was ample evidence but she didn't go into all the specifics of that evidence because it wasn't specific than sure your honor and asked your question regarding the answer to be honest with you i can't remember that far back but for purposes of summary judgment ok you didn't make requests for folds back to rule fifty six they didn't dispute that she was a disabled person and even if they had even if for some reason you know that argument holds water that saying argue endo that she established her prima facia case there was still record evidence that she was disabled there is an attachment to miss pratt's deposition where they went back and forth with the short term disability carrier and it listed out all the problems that she had and it also goes into when they da was amended effective january first two thousand and nine as a part of the eighty aaa that you know the congress broad and who w considered disabled rather significantly under the fact and so someone that you know left to work due to a heart condition she was wearing a heart monitor at work she ultimately had to get a pacemaker installed her later i think that that clearly satisfies the definition of disabled and again there was record evidence that the court just you know did not pick up on and frankly the the plaintiff in her briefing didn't highlight it because in the proper case like this case there was an issue of whether the point of received all the f m only time that was requested my understanding that your client did you know you supervisor or that's what her physician had said that she was going to have there was the disability dashboard that she was placed on and it listed on that disability dashboard that her have that it lasted through june tenth and she was terminated on june fourth so again to the extent and i apologize that there might be a few days difference if she did exceed the twelve weeks then to answer your question is yes that would negate the eight twenty five three hundred b subsection one subsection two that's the notice provision when an employee puts their tells their employer that they have a specific illness then the employer has and  the employer can notify them hey you have rights under the f m a way and that that notice can be either verbal or written then after they give that initial notice they have i believe that it's ten days to provide the written notice of their specific rights under th verizon has a very different policy in that you know they have all their policies on line like lots of companies do but when an employee goes and says hey i've got these problems they say ok you know if you want to you can go look at this but if if there were violations of the notice regulations what's the remedy well the remedy really in the six i think the six circuit is really recognize remedy because it seems to intertwine and you know if there's retaliation if they in fact lose their job so this the proactive giving giving of rebates that people didn't ask for that's the basis for firing right it sounds sort of like robin hood being fired for being robin hood sort of right this is something like that is what the basis for it is you agree that that that could be a basis for firing somebody for doing something so nice well i think that it could be a basis for terminating some would be if i fact happened if it in fact happened right and reasonably believed it happened and well i think that there are disputed facts as to whether or not right but the disputed fact is whether it happened or whether they reasonably believed it had done actually have to happen if the facts show that the company thought it was happening well through is not that is true but it but your honor what's that what's they are assuming that they had some reasonable belief that this was going on and i understand you object to that what's the evidence of pretext and you're out of time so just give me a sentence or two number one there is the june third memo that was sent to the h r executive director that said specifically that she was fired for attendance issues regard to with regard to that june third memo i think the credibility of that memo is question and if in fact that information in that memo came from a decision maker because that memo was produced after the close of discovery after summary judgment briefing there was no opportunity for plaintiff to cross examine anyone and there's information missing in that memo and in the declaration that supported the light memo where it came from did that information that she was fired for attendance issues come from a decision maker that was never answered and the specific decision maker that she answered to ms miller did not provide an affidavit saying that she did in fact give her not give her that information thank you appreciate it sir for the questions and as i understand it you're just going to address a da only saying that's correct your honor good morning jim tucker with the u c and if we could continue that conversation very briefly if i could answer any questions you have about the evidence regarding pretext believe there is one thing that counts for plaintiff didn't mention regarding the evidence and that is also not only the document that was created on june second and forwarded on june third stating attendances the reason for her terminations but also that the plaintiffs don't testimony that on june twenty first when she was told that she was being for the actual terminations date the  arguably legitimate basis for firing her is as a matter of eighty a pretext that well if i can answer that in two parts your honor first of all he actually discussed earlier one of the first cases about the question of whether or not you create evidence that shows that there may be a different reason at play regardless of whether or not it was based on disability it is an entirely different evidence or presentation of what was going on within the employer's mind that evidence coupled with the disability the fact that again it's own contested that these managers wall aware that she had taken all this leave because of her disability and the you so she comes back the day after she's out after having an event at work heart to her heart medication because you actually pass out have to go in and have an ambulance come in take her to the hospital resulting in a couple more weeks of leave because of her heart condition this is all evidence or this is the information that was before the employer she comes back on the twenty first and she's told that it's her tenants that because she took leave it that's why they're letting her go but manifestation of her disability was that time out and so it's a reasonable inference to connect the fact that she was out for her or that they took action against her because of her attend reason that the e e o c decided to address this case was concerned about whether there was a problem facie case here as opposed to whether there was read that we need to reach that unless we overcome the pretext part of it and that i we've taken a position i predict as well you are ok right that's correct but again if there are no further questions on pretext i would like to briefly address the issues before the district court regarding the proper analysis under the amended a d i i thought that was pretty straightforward regarding in the briefing and this court's taking the position that the regarded as standard is changed on the fact the defense counsel's conceded on appeal that there was the proper it was applied below what the proper standard is let me put it that way i don't want to put words in your mouth but so that the standard is for regard his claims to be clear it's not about whether or not the employer perceived the individual to be substantial limited in some way it's whether or not the employer perceived an impairment and took action against that individual regardless of the level of impairment regarding the prime of face or case elements going to actual disability again it's important at least from the commission's perspective to reiterate that the amended a t a i has encouraged and created a very broad standard for coverage it's not what it used to be it's a much lower bar for snowshoeing actual disability with a focus on again broad coverage a array of of disabilities and impairments specifically identifying circulatory functions are the commission's regulations identified cardiovascular system and organs within the cardiovascular system as  major life activities so again just to reiterate the point that the idea has substantially changed the landscape and even though i think the district court well meaning identified that there had been a change in the law it didn't miss apply and that analysis when it actually used a substantially limited standard good morning yours my name is andrew naylor i represent horizon wireless here today and what i'd like to do if i could is maybe just address and follow up on some of the questions the panel had for counsel for appellant when we first address this issue about whether or not the district court apply the right regarded as standard i would submit to the court that that really is of no importance to the subpoena because the judge can't with just record judge correctly ruled and held in his opinion that whether or not the player was able to show their disabled car this disabled their own able to show pretext that's what that opinion turned on and that's really what this case turns on is whether or not the plaintiff has been able to show a protech pretextual evidence to show that our decision my client's decision was not really based on all the disciplinary record that was before we made the call that to terminate her after months and months and months of her violations of the code of cons like you fired her for pretty nice activity but judge you know you call it an integrity violation it it is and i think that merits some discussion some explanation quite has eighty five thousand employees throughout the country we have a code of conduct the governs how they're supposed to behave with customers with colleagues with managers it's very clear all of the employees are trained on it including mr avars at the beginning of their employment and throughout their employment as they go on throughout their education what mr rogers was doing one example as you pointed out earlier was she was offering to cash in a rebate that was given to the customer that the customer supposed to send in as opposed to the customer service representing representative offering that up yesterday evidence to show that really there could be no harm no foul and that that is an argument but the point is that's not the rule we have thousands that in kind of a nice way actually if the if the customer said i hear there's such a rebate then then she could have given it without having the male idiom it's very very possible and really what mr travers was doing in the in the example of offering the meal a mail in rebate offering the free phone which is also on the record offering a free month of service if she's assigned this to say i'm going to have these promotions i'm going to start on my own what they're going to be how they're going to work to the detriment of arisan wireless now it's true that she can offer those type of benefits to customers if she gets approval beforehand to do so she didn't do that in this case and there really is no dispute about that she was given the write up she was given display warnings about five times not to do what she was doing she ignored it over and over and over again importantly both before and after she took her if m l a before she was even eligible for f m l a she was violating the code of conduct throughout her employment that's  but basically what we agreed that for purposes of summary judgment it's likely there was a dispute of fact in play as to whether or not she was disabled and we just chose not to argue that and instead go to whether or not she could show that the alleged disabled status led to her terminations so we counsel for the appellant was whether or not mr travers received all the f m l a that she had asked for and i can tell you without any hesitation and without any confusion that she got every single day of the familiar leave that she ever asked for in fact when she was brought in to be advised that she was on terminations review for her repeated violations of our code of conduct that very same day she went out on  two weeks two and a half weeks your counsel concedes i think that that's not the strongest argument that she i but i just want to dress the question least i think maybe you could address her stronger argument which her the record of discipline that she received our brief is very clear on that and a pretext i'm sorry you're going right into pretext that going right to protect that she cannot show and to the to the i think the june third memo that she mentioned authored by a non decision maker i think the law in the circuit is abundantly clear and i would certainly point to judge griffin's decision in worthy versus michigan bell driven getting a lot of play morning never wrote and then where very appropriately rolled and held in that case that straight remark by a not decision maker is not sufficient to show a pretext particularly in light of the record of this case where we have multiple  multiple write ups that were signed by this plaintiff it was clear that she was on those what she was doing was in violation of a code of conduct she was on those that she continue to do it she would be terminated and unfortunately that's what happened after about five occasions and the next step is pretext pretext which would whether she could show the pretext and so that would lead this i think their primary argument on that primary argument on that is the june third memo again not decision maker or the remark made in her terminations allegedly made during the termination meeting again a non decision maker would go goes back to that case thank you can't focus here appears to be on pretext and i'm going to focus on that i would like to address one thing raised by mr naylor is that he said that the stray remark was that the statement made in the june third memo was a stray remark made by a non decision maker we don't know that we do not know that that was a stray remark or that it was made by a non decision maker it could very well be direct evidence and if it is direct evidence then we jump straight in to you know letting a reasonable jury decide whether or not that there issues of fact here there are three things going on with regards to the pretext three main things before you move on who do you  that it's made back collaboration of people it has to be made by the supervisor who is mis gal or by her local eye chart person who was miss miller and ask you what they claim what do you call i claim that it's made by all three it has to go through the levels and it has to ultimately be approved by a regional h r and so when the immediate supervisor the level supervisor ms gal or makes the decision in those team meetings that they have it has to be approved at the local h r level and then it has to be approved at the at the big h r level regionally and so it's a collaborative decision there's even record evidence where they say that it's calibrated by management this is not a one person decision  and so going back again to this pretext argument of course there's three ways that you can treat it that you can prove pretext in this case we're saying that it's more the second method that it did not actually motivate motivate the decision and to look at that indicts the credibility of the explanation and that's in mansour versus diamond shamrock and again we're going back to these three main things the june third memo which was late produced we don't know where the language in the memo came from and it is a highly coincidental how this you know the system and miss miller who's the local h r person could have just come up with this language that it was because of her attendance which plays directly into the theory that to her disability related attendance and half a mill a you know contributed to her terminations was because you know calls her terminations we just don't know that and so automatically concluding that she was a non decision maker that it's a strong remark or any of those sorts of things i think the court impermissibly is drawing a credibility determination that it shouldn't draw because there's not that evidence to show that she was an on decision maker we don't know where it came from we just don't know that second there's the statement and terminations meeting you're being let go we need you here you're being let go for your attendance the miss pratt who was sitting in the terminations meeting could not recall what was said in that meeting miss  harris who made the decision or who made that statement she denies making the statement my client says that she did make the statement again you have a credibility determination that i think a reasonable jury could conclude ok if one person you know the h r person who's sitting in the meeting doesn't remember it then it's a credibility determination between mr traverse the statement about we need you to be here you've missed a lot of work we need you to be here so that is a disputed issue of fact and again it's our position that you know it's direct evidence but you can't really make that final determination whether it's direct or indirect evidence because you know you have all these different stories gone on then the third method is is just the suspicious timing going on her write ups all of the write ups came while she was taken medical leave act or she had taken medical leave when she started engaging in that protective conduct and you can go through and sort of the most obvious one and it was mentioned by mr tucker is that she passes out in the parking lot at work from her palpitations and the next day was when they decide to send the regional h r form to go ahead and move forward with her terminations like your time is up thank you thank you so much still be submitted we have one more case please call the next case