case is about the employer's obligation to provide guidance to employees who take a leave and whether an employer may discipline an employee who complies with the employer's written ethanol a policy in connection with that leave so the questions before the court are first what is boeing's policy for requesting ethanol a slash w f l a believe second if shelton followed this policy is his leave protected and third if not did boeing's approval of his athame leave constitute a waiver of its right to discipline him for his actions in taking that leap so i want to talk first about what goes on when an employee privacy because boeing has an obligation to its employees to ensure that their medical issues are kept quote are kept confidential that is required under both the f m alay and the americans with disabilities the employee employees entitle to notice written notice from boeing as to what it's supposed to do to request leave once shelton conforms with boeing's written policy he's done everything he needs to what the manager had directed him to when he failed to notify the manager actually the manager said it was the only rule she didn't say that he had violated section six section six isn't section seven so  factual matter this is a summary judgment after all as a factual matter when we depose steve miller who is the head of a boeing discipline basically he turned to section seven to say this is what an employee is supposed to do so to the extent there is any distinction between six section six and section seven either it's either we should get the evidence in the light most favorable to us as the nonmoving party or the courts would simply hold that lawyers obligated important because timing is or it was at how much time was there but to listen to the question first how much time was there between the action that he complained the event that he complains of i mean that he mentioned refers to an action requirement which is to say look if it's possible to notify your manager not fans of leaf do that because there's a common sense reason that you would tell your immediate supervisor to extent you're able to do so that you're going to  that's going to create so many administrate of problems for the employer in this case i think that you have to take a step back and say look boeing really carefully crafted its policy because it doesn't want to have problems deciding when is it going to excuse a a notification that comes after the start of the shift if you look at the regulations it says as soon as practical or within the amount of time prescribed by the  by the employer's policy it is if boeing actually had the rule that the employee had to notify the manager before the start of the shift then who's adjudicating when is the exigent circumstance because a lot of people aren't going to be able to call before the start of the shift the whole point of the f m away is to protect people who are needing to take emergency leave and if you're supposed to contact the employer before the start of the shift and then caulk to contact the f m l a leave death two days later or within two days that creates a whole lot of problems and now we're going to have people at administering you know making an off the cuff calls that's just going to require a lot of litigation and problems bowings policy solves that by creating presumption of timeliness if it's a within two days and then and then if it's beyond two days that's when they have to decide if they're exigent circumstances so if somebody is in a coma or laid up in the hospital then maybe they should have a week but they shouldn't be required to contact them that you know before the shift starts so that two days is the rule that boeing ha and all that boeing house to do if it has a different rule is simply a men section seven point three if it does that then it is in clear conformance with the c f r s and it gives clear guidelines to its employees i mean people who are in medical crisis should not be looking to different sections of a sixty page leave policy they should be able to turn to section seven and see what it says just like mr miller did in this deposition so we have facts we have factual questions here if the court is believing that there are other obligations that employees have that are separate and apart from section seven point three i also want to talk about waiver because there are no cases where an employee has been granted leave and still disciplined so boeing says that there is no connection between the terminate of the discipline and the ethical way but of course there is the he is he is being progressive lee disciplined twice for for absences that the at the at no group deemed to be you know protected how can you have leave that is granted but is not protected so they grant him the leave yes but they don't protect him the whole purpose of the act is to protect that leave what any evidence on the record that he could notify the manager in advance of meeting well he well that's a great question and again we're getting into the facts of the case which would require a trial but even in this case he you know when he after he gets his written warning and he's told to provide his manager with notice before the start of the shift he does that and we have the smoking gun email where the manager believes that he has complied with the warnings she says look it worked timely notice so how we get from timely notice that the manager believes to a suspension is unexplained bowing there is no evidence in the record why the manager thought that  mr shelton was not not in compliance with her prior warning when she in fact she did that's what she says that's or you know this is all a construct that's going on when human resources is now kind of stepping in and administering the policy w it please the court allison ho for boeing the record evidence in this case indisputably establishes that mr shelton was disciplined because nine times over a period of one and a half months he refused to comply with his manager's repeated requests and bowings policy to call his manager before the start of his shift if he was going to be absent or tardy this common sense rule is ubiquitous in the workplace because it helps managers ensure that they have the workforce they need to accomplish that day's mission and no reasonable jury could find that the rule was not part of boeing's usual and customary policies because it was clearly set out in the written attendance policy that governed at mr shelton's division that's at s c are seven it was underscored in an e mail sent by mr shelton's manager that's at s e r one fifty five through fifty six it was reiterated multiple times in boeing's leave of absence handbook as your honor pointed out that that s e r twenty one twenty four thirty two sixty and sixty three and it was reinforced by repeated reminders to mr shelton personally by his manager by his h r representative and by his union steward that set out in our briefing pages nine through twelve pointed out in section seven it is also contained in the appendix where it says you're required to notify your manager and contact total access but but even if your honor there there was some room to argue on that think in the face of the email from his manager the written attendance policy the personal reminders i think all of that there's simply not a scintilla of evidence in this case that calling the manager before the start of your shift wasn't part of boeing's usual and customary policies in this case f m l a regulations specifically allow employers to discipline employees who don't comply with usual and customary policies that are neutral and generally applied and that's just what boeing did here as the district court correctly concluded and even after his union steward warned mr shelton that he was in danger of losing his job mr shelton responded that he would not in the union stewards words quote call his boss that's it f c r one ninety nine and later testified that this was because he didn't feel quote like he was violating boeing's policy even though the undisputed evidence showed that he had been repeatedly told by  management age our and his union to call his manager when he was going to be absent for any reason and to respond directly to your honor's question judge there is no evidence in this record that mr shelton a could not have called in the all of the evidence is that he simply refused to comply with the rules so there is no evidence on this record of any circumstance that would have any reason that that that he could not and in fact when his before before the absences he his response to his managers e mail his managers e mail of may fifteen  reiterating the policy of the call and policy his response at s e r one sixty two through sixty three was that he would do that if his manager would give him a phone and relocate him to a building   comply and i think it's particularly on this record no circuit would find f m l a liability on the facts here and several have specifically rejected similar claims most prominently the tenth circuit in bones the sixth circuit in the seventh circuit in gilliam and the eighth circuit in bacon the only case that mr shelton can point to for support is the six circuits decision and haven't versus honda but as the sixth circuit later clarified in swear out or that case is no longer good law because it rests on regulations that are now obsolete and that were changed to permit in fact exactly what boeing requirement they don't say that granting leave indian ises employees from discipline for failure to follow calling rules and they certainly don't put employers to the perverse choice  either strictly enforcing notice before granting leave or dispensing with notice altogether the regulations permit the sensible middle ground of granting leave and dealing with notice through discipline and that's precisely what boeing did here and on the unusual circumstances argument setting aside that mr shelton waived this  argument it's meritless for two reasons first there is no evidence from which a reasonable jury could conclude that there was any actual ambiguity or confusion here unlike the cases on which mr shelton relies when m managers reminded him of the leave policies there any indication in the record whether through her declaration or email or other formal correspondence pinpointing mr shelton to this specific provisions of the leave of absence policy that boeing thought he was in violation of he he was repeatedly reminded of through his calls from his manager through tanya irby of  know that all explained what she thought was the policy which is that you have to notify the manager if you're able to do that in advance of the leave but was there any more of more formal correspondents following up that pinpointed him to the provisions that boeing thought he was  of he did receive in addition to the the calls and the other counseling he did receive the corrective action memo which which pointed to specifically to his manager's  instructions to do that i would i would have to double check in terms of were specific provisions referenced but but we know from other case law a written policy isn't isn't required he was certain he reminded again and again of his managers policy and boeing's policy of calling and before his shift and when when he sat down with ms serby and she explained what he needed to do and his response was simply he was he was not going going to do that so again i'm not certain whether the h r or his manager appointed him just pacific provisions in in the handbook but he was certainly reminded again and again of his manager's instructions and i don't think there was any confusion here about what he was required to do think this was simply a case of noncompliance and insu nation that he refused time and again despite warnings that that was that was was the rule for for him to do it and then again just to reiterate there's no evidence here otherwise that would constitute unusual circumstances such as a medical emergency this is simply a case of wouldn't not couldn't so in some mr shelton knew what was expected of him and he simply refused to do it his personal disagreement with boeing's rules doesn't create a material fact issue much less provide a basis for liability if there are no other quick questions we respectfully request that the district court's judgment be affirmed  thank you we still haven't heard from boeing what pop what is its policy is it that he is supposed to call in his manager before his shift which is not in its f m l a policy or is boeing trying to discipline mr shelton for some ancillary policy that isn't part of its ethanol a policy i still haven't gotten an answer to that question and that's a question that really the court needs to wrestle with because it implicates summary judgment and what is the you know what is the evidence the light most favorable to boeing or to mr shelton as we do have cross motions for summary judgment i can certainly understand why you would want to narrowly focus on section seven but to the extent that there's any ambiguity or more questions i think the manager sat down with him and explain what the obligations are so to follow up on just murphy's point when i look at the district plaintiff he told us you know representative that he refused to call his manager prior to his absence because he didn't feel that he was in violation of any billing policy is that an accurate summary of his response or are there other portions of the deposition that we need to look  i think that's accurate i just don't think it talks about everything that's going on because what the district court doesn't do is really wrestle with the fact that that shelters manager didn't think that shelton was in noncompliance with his second with his with his second request for a formal way so that's a critical fact why did the manager not think that he was in noncompliance that's an issue of fact so if the court is struggling with did shelton comply with being not struggling with anything of the question you know fair enough your honor i'm struggling with trying to figure out what boeing's policy is because we believe that boeing has an obligation under the regulations to make to have a clear policy as to what is required to obtain protected f m away leave and the only way that the court should should the only place the court should look would be in the employer's f m away section if boeing wants mr shelton to contact its manager before his shift if he's going to take a leave it should put that in the policy that's all it has to that's all that has to be done to clarify the situation and there's and there's a reason why boeing didn't do that so what boeing i think is trying to say is that shelby should be punished for an ancillary policy but if we're talking about an ancillary policy then we really have to go back and see what are the  what are the authors of the c f r is really trying to do are they trying to make to create ambiguity for employees are they trying to create create clear guidelines as to what it is to request and get approved leave because its record was the ambiguity here the ambiguity here is is the call in her siege or is it is the requirement to call the manager part of an f m l a policy or part of the manager's private policy or part of section six or five whatever the case may be where should employ turn to in a moment of medical crisis to get guidelines on what they need to do to make sure that they have a job to return to when they come back from lately and if a person complies with what boeing says in its in its f m y a policy and the person and the party that's administering that believes that he's provided proper notice then why is that leave not protected they can say they can give him leave but what did it mean to give him leave they didn't protect his leave at all they give him a written warning and then they suspended him all for attendance that was covered under the ethanol a and which boeing concedes is covered away because it granted his leave so what does boeing saying are they saying that his absence is weren't covered by half a mile away did he not give proper notice i think they're saying that it's covered under shared the record right but under three or four the employer can either wave and grant leave or they can not waive and discipline by granting the leave they have to at least protect him for that leave an failed to do they gave him the leave they didn't protect him that's the problem with this terminations thank you thank you very much the matter submitted for a decision by the court