[00:00:00] Speaker 01:
The first case this morning is Rodriguez versus Rich, 24-2163.

[00:00:07] Speaker 01:
Council Propellant, if you would make your appearance and proceed, please.

[00:00:11] Speaker 04:
Good morning, Your Honors.

[00:00:13] Speaker 04:
My name is Heather Burke, and may it please the Court, I represent Plaintiff Propellant Marty Rodriguez and Joshua Rodriguez.

[00:00:20] Speaker 04:
I would like to reserve three minutes for rebuttal.

[00:00:23] Speaker 04:
The Family Medical Leave Act 29 U.S.C.S.

[00:00:26] Speaker 04:
Section 2601 was enacted by Congress to entitle employees to take reasonable leave for medical reasons.

[00:00:34] Speaker 04:
In enacting this law, they recognized there was inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.

[00:00:43] Speaker 04:
On the night of February 20th, 2020, after working a full 8 hour day, plus 15 minutes of overtime, Jeremy Rodriguez Ortega was hospitalized for emergency treatment by his FMLA qualifying condition.

[00:00:57] Speaker 04:
As a direct result of his hospitalization, Jeremy was unable to give notice of his need for leave within 30 minutes of his shift the following day.

[00:01:05] Speaker 04:
29 CFR 825.303C provides that when an employee is receiving emergency medical treatment, he is not required to comply with employer call-in requirements.

[00:01:17] Speaker 04:
However, on the first day he was absent, Jeremy's family informed defendant Rich that Jeremy had been hospitalized

[00:01:25] Speaker 04:
Giving defendant rich notice of Jeremy's need for FMLA leap.

[00:01:29] Speaker 04:
29 CFR 825.303A provides that a family may give notice.

[00:01:37] Speaker 04:
There is no requirement under the law, however, that family members must give notice at all, let alone by a certain time in the day.

[00:01:44] Speaker 04:
And the court... Ms.

[00:01:45] Speaker 01:
Burke, can I just interrupt you for a quick second here?

[00:01:49] Speaker 01:
Yes.

[00:01:49] Speaker 01:
I just want to make sure I understand the scope of this appeal.

[00:01:54] Speaker 01:
As I understand it, there are only certain claims that are at issue here now, right, relative to what was at play in the district court.

[00:02:02] Speaker 01:
For example, you're not challenging that terminating Mr. Rodriguez was not, well, let's see.

[00:02:14] Speaker 01:
Let me just state it otherwise.

[00:02:16] Speaker 01:
Why don't you tell us what claims you perceive to be present on appeal now?

[00:02:23] Speaker 04:
In this appeal, the primary substantive issues are the FMLA interference and retaliation claim, as well as the issue of whether or not defendants admitted the allegations in plaintiff's complaint when they failed to timely file their answer brief.

[00:02:41] Speaker 01:
Well, just to be clear, what specific

[00:02:45] Speaker 01:
factual instances are at play in the retaliation and interference claims?

[00:02:52] Speaker 01:
I mean, was there a number, like there were two instances related to leave?

[00:02:56] Speaker 01:
And so, what specific instances are you challenging here?

[00:03:01] Speaker 04:
So, the instances happen, there is a six-day period in February of 2020.

[00:03:07] Speaker 04:
when Mr. Rodriguez Ortega was hospitalized.

[00:03:11] Speaker 04:
And then there was a second incidence, again, where he was hospitalized in May of 2020.

[00:03:18] Speaker 04:
And those are the two primary periods that we're alleging for the FMLA interference.

[00:03:25] Speaker 01:
Okay, that's helpful.

[00:03:27] Speaker 02:
No, I have one other, I have one question, Ms.

[00:03:30] Speaker 02:
Burke.

[00:03:31] Speaker 02:
Sure.

[00:03:33] Speaker 02:
You only have one appellant here, correct?

[00:03:37] Speaker 02:
Even though you've named two appellants in your pleadings.

[00:03:43] Speaker 04:
So you are correct, Your Honor.

[00:03:46] Speaker 04:
I filed this notice of appeal, we were intending to only appeal the FMLA issues and because Joshua Rodriguez does not have FMLA claims, he was not named in the initial appeal.

[00:03:58] Speaker 04:
He's become more of a interested third party when we added the appeal of the motion to strike and the issues related to the failure to deny.

[00:04:07] Speaker 04:
But he is not a technical appellant, Your Honor, you are correct.

[00:04:13] Speaker 04:
Okay, thank you.

[00:04:14] Speaker 05:
Okay.

[00:04:15] Speaker 05:
I just had one clarification on your response to Judge Holmes also, and that is, I thought you said that that issue in this appeal were both your retaliation and interference claims, but your briefing only discusses the two interference claims that you just now mentioned.

[00:04:36] Speaker 05:
And I think it's noted, it was noted in response that you seem to have abandoned your

[00:04:42] Speaker 05:
retaliation claims.

[00:04:43] Speaker 05:
So I just want to confirm that you misspoke there and that you aren't continuing with those retaliation claims.

[00:04:52] Speaker 04:
I think arguably the retaliation claims could have been abandoned, but they're also dependent on these issues of whether or not notice was properly given because if notice... Well, you have to argue them.

[00:05:04] Speaker 05:
You've got to argue them on a field that are separately considered and decided by the district court.

[00:05:10] Speaker 05:
They went all lumped together and they have a different

[00:05:12] Speaker 05:
Different set of elements, for sure.

[00:05:15] Speaker 05:
So I just, I'm trying to clarify what our issues are here.

[00:05:19] Speaker 05:
And it seems to me you're suggesting that you only argued the interference claims, the two interference adverse instances.

[00:05:29] Speaker 04:
Well, there are multiple adverse interferences in two separate periods because each time that Jeremy was marked AWOL is itself its own discrete adverse event because each time he was denied the use of paid leave, he was damaged.

[00:05:46] Speaker 05:
Now, the district court decided the interference claims based on the third prong, the causation, found there was a lack of causation because Jeremy was in both instances

[00:05:59] Speaker 05:
marked AWOL because of, at least for some part of that time, because of his failure to provide notice under the company policy.

[00:06:11] Speaker 05:
You didn't raise this issue about what I call the unusual circumstances regulation, which is 29 CFR 815 303, which you mentioned really good, Section C. It didn't seem to me that you raised that issue below at all.

[00:06:28] Speaker 05:
And yet this seems to be a primary issue on appeal, is whether somehow they acted in violation of that regulation.

[00:06:40] Speaker 04:
Your Honor, we've cited 29 CFR 825.303C.

[00:06:43] Speaker 04:
I believe you cited it.

[00:06:46] Speaker 05:
I believe you cited it, but there was no argument about this.

[00:06:50] Speaker 05:
And that's different.

[00:06:51] Speaker 04:
We argued that he was incapacitated by his medical treatment, which are the unusual circumstances.

[00:06:57] Speaker 04:
We may not have used the phrase unusual circumstances, but the unusual circumstance is clearly that he was incapacitated by emergency medical treatment.

[00:07:07] Speaker 04:
Well, isn't that?

[00:07:09] Speaker 04:
I'm sorry.

[00:07:10] Speaker 04:
No, go ahead.

[00:07:10] Speaker 04:
I'm sorry.

[00:07:11] Speaker 05:
Well, I was gonna say, isn't that also relevant and provided for?

[00:07:15] Speaker 05:
in the company's policy that they found that he violated because it provides that basically, I think it says that you have to get notice unless it's not practicable, which would essentially have been your argument which the district court rejected that it wasn't practicable.

[00:07:38] Speaker 04:
Well, the district court rejected that it wasn't for unclear reasons while also finding that Jeremy's family must have given notice.

[00:07:48] Speaker 04:
Now, the district court for some reason believed he was absent on the Thursday first, but he wasn't.

[00:07:53] Speaker 04:
He worked a full day.

[00:07:54] Speaker 04:
including 15 minutes of overtime, and then went to the hospital that night.

[00:07:58] Speaker 04:
He was absent for the first time on the Friday, and the Friday is the day the family gave notice.

[00:08:03] Speaker 04:
So they had noticed the very first day of his absence, and it's important to note that there's nothing in the record to suggest Jeremy had ever been absent before without seeking notice.

[00:08:14] Speaker 05:
Notice the first day, and you go back to what you just said, because you mentioned notice the first day.

[00:08:20] Speaker 05:
And yet, notice the first day of an absence is not sufficient, is it?

[00:08:25] Speaker 05:
I mean, once you get out of the hospital, we don't get to just keep stretching that notice, right?

[00:08:32] Speaker 05:
Isn't that the problem here?

[00:08:34] Speaker 05:
He was still in the hospital, Your Honor, for three days.

[00:08:37] Speaker 05:
Are we talking about May or February?

[00:08:40] Speaker 05:
In February, Your Honor.

[00:08:41] Speaker 05:
Okay, what about May?

[00:08:42] Speaker 05:
Did he even seek MLA or even February or May?

[00:08:47] Speaker 05:
Did he seek MLA?

[00:08:48] Speaker 04:
Yes, he did.

[00:08:50] Speaker 04:
in May, he invoked FMLA in a text message, and it's a question of fact whether or not that was sufficient to give notice of his need for leave when he became incapacitated.

[00:09:01] Speaker 04:
Now, it's important for Your Honours to understand that Mr. Rodriguez-Artega's health condition resulted in a flood of toxicity to his system, which created confusion, it created instability, it created nausea, and

[00:09:16] Speaker 04:
General incapacitation, he was unconscious for a lot of the time now in may will remember that the pandemic had just begun and hospitals were turning away people that weren't critically ill because of the risk of covert and Mr. Rodriguez Ortega was obviously very high risk for covert computation.

[00:09:34] Speaker 04:
So he would have normally been admitted.

[00:09:37] Speaker 04:
The first time when he went to the hospital in May, but because of the risk, they sent him home again.

[00:09:42] Speaker 04:
Eventually during his period of absence in May, he was actually admitted to the hospital for several days.

[00:09:49] Speaker 04:
He was in and out of the hospital, I believe, three times during

[00:09:53] Speaker 04:
his period of absence in May.

[00:09:56] Speaker 04:
In February, he was also hospitalized immediately.

[00:09:59] Speaker 04:
This was prior to the pandemic.

[00:10:02] Speaker 04:
He was hospitalized immediately and then incapacitated by his painkillers and his general malaise from his treatment, because there was really not much they could do for him for this.

[00:10:13] Speaker 04:
Once his kidneys started failing, they could help with the toxicity.

[00:10:18] Speaker 04:
He eventually went on to dialysis.

[00:10:21] Speaker 04:
But even then, he was regularly incapacitated by these symptoms.

[00:10:27] Speaker 04:
Again, his notice was given on the Friday of the February leave, but yeah, he was marked AWOL that first day.

[00:10:36] Speaker 04:
They knew he was in the hospital, they had actual notice from his family and they marked him AWOL anyway.

[00:10:42] Speaker 04:
They then on Monday, Tuesday and Wednesday of the following week, properly designated his leave as FMLA qualifying.

[00:10:49] Speaker 04:
But then Thursday, for some reason,

[00:10:52] Speaker 04:
decided three hours of that day he was AWOL and five hours of that day he was FMLA protected.

[00:10:58] Speaker 04:
Then the following day, the Friday, a week from his first hospitalization, he was marked AWOL for the entire day.

[00:11:05] Speaker 04:
There's no rhyme or reason, nor is there anything in the record to suggest that any of those days they got more or less notice from him.

[00:11:14] Speaker 04:
They knew that entire week, it's a six day period, which is

[00:11:17] Speaker 04:
inherently reasonable for a hospitalization of this nature for him to be absent.

[00:11:23] Speaker 04:
He was absent approximately a week of work.

[00:11:26] Speaker 04:
He had more than enough paid leave to cover it.

[00:11:29] Speaker 04:
He had been a state employee for 18 years and earned an enormous amount of paid leave, which he could have used for those absences and did use for the ones that were marked FMLA protective.

[00:11:41] Speaker 04:
He was denied the use of his paid leave for the AWOL designated times.

[00:11:46] Speaker 04:
And when he returned to work,

[00:11:48] Speaker 05:
The first thing.

[00:11:50] Speaker 05:
I just want to make sure that you get to what I see.

[00:11:53] Speaker 05:
I think you're only really making two arguments as I can see it on appeal.

[00:11:59] Speaker 05:
And one was the one was this CFR that you cited and discussed in unusual circumstances issue.

[00:12:05] Speaker 05:
And then you seem to be challenging the district court's finding of facts, as I recall, about whether he had any

[00:12:17] Speaker 05:
responsibilities, whether his work responsibilities were removed, which this report said that they were, but then this report also said he found that he didn't actually have some assignments at work responsibilities.

[00:12:33] Speaker 05:
And so you're challenging that, but I question, if you're not arguing retaliation claims anymore, I don't understand quite what that issue goes to.

[00:12:46] Speaker 05:
Why is that fact material if it is contributed?

[00:12:51] Speaker 04:
Well, at the time we were doing this, we still had our Human Rights Act claims in this case, which were retaliation and discrimination for his serious medical conditions.

[00:13:01] Speaker 04:
And therefore, the fact that his job duties were stripped, even if we take FMLA retaliation out, is still important to the issue of whether or not he was discriminated against.

[00:13:13] Speaker 05:
Assume for a moment that you're correct and that there is a fact issue on that.

[00:13:17] Speaker 05:
There was a controversial fact on whether his job duties were taken away.

[00:13:22] Speaker 05:
Can you explain to me how that's relevant to the interference claim?

[00:13:29] Speaker 04:
It's relevant to the interference claim because that itself discouraged him from

[00:13:34] Speaker 04:
invoking his FMLA leave in May because he was told explicitly that he could not retroactively invoke his FMLA leave even when he was in the hospital and that therefore this chilled him from wanting to take FMLA and chilled him from

[00:13:52] Speaker 04:
clearly stating that he had been in the hospital the next time this happened, all of which are questions of fact.

[00:13:58] Speaker 01:
Ms.

[00:13:58] Speaker 01:
Berth, the chill is language of retaliation.

[00:14:02] Speaker 01:
I mean, that's language of a claim that I at least understood you to tell Judge Moritz is no longer on the table.

[00:14:10] Speaker 01:
Do I misunderstand that statement?

[00:14:12] Speaker 01:
And if it is no longer on the table, then the fact that there was some chilling effect really is not relevant anymore.

[00:14:20] Speaker 04:
Well, it remains relevant because by statute, interference is obtained when you discourage somebody from using their FMLA leave.

[00:14:30] Speaker 04:
So chilling somebody is the same thing as to discourage them.

[00:14:33] Speaker 04:
And that is a factor in an FMLA interference claim.

[00:14:38] Speaker 01:
And that chilling would have related to what?

[00:14:41] Speaker 01:
The May incident or the February incident?

[00:14:45] Speaker 04:
Well, both because he was denied leave for February and then he was

[00:14:50] Speaker 04:
to miss informed about whether or not he could invoke his FMLA leave in May and told that he could not because he had not complied each and every day with the call-in procedure.

[00:15:01] Speaker 04:
And that is simply not the case.

[00:15:03] Speaker 01:
I guess on the timeline, when, when did the, when did the alleged stripping of duties take place?

[00:15:11] Speaker 04:
When he returned from the February leave.

[00:15:13] Speaker 01:
Okay.

[00:15:14] Speaker 01:
So it would have been as so the chill.

[00:15:15] Speaker 01:
So any chilling after the stripping of duties would have occurred after February, right?

[00:15:20] Speaker 05:
Correct.

[00:15:21] Speaker 01:
Okay.

[00:15:22] Speaker 05:
Well, and as I understand what you're saying, you're still saying that he was chilled or essentially prevented because he was told he couldn't retroactively take this FMLA, but I'm still trying to get how that connects to this whole issue of the fact that he did or didn't have work responsibilities.

[00:15:44] Speaker 05:
Did somebody connect the dots there?

[00:15:46] Speaker 05:
Did somebody say, well, you can't have FMLA because

[00:15:50] Speaker 05:
you haven't been working or we took your duties away?

[00:15:54] Speaker 05:
I'm trying to figure out why that's material.

[00:15:56] Speaker 04:
Well, as I say, it's material for our Human Rights Act discrimination claim and it's material for the fact that he was made to feel, I mean, he had no job duties while he was there and that becomes relevant when they say that he wasn't doing his job duties and that's one of the reasons for his termination was that he wasn't doing.

[00:16:14] Speaker 04:
But if he had no job duties to do, then that's not possible.

[00:16:20] Speaker 04:
Okay.

[00:16:21] Speaker 01:
Thank you.

[00:16:23] Speaker 01:
All right.

[00:16:24] Speaker 01:
Ms.

[00:16:24] Speaker 01:
Burke, your time is over, but I'll give you a minute of rebuttal when we get to it.

[00:16:30] Speaker 01:
Okay.

[00:16:30] Speaker 04:
Thank you, Your Honor.

[00:16:32] Speaker 01:
All right.

[00:16:33] Speaker 01:
We'll hear from APA Lee now, please.

[00:16:36] Speaker 03:
Thank you, Your Honor.

[00:16:37] Speaker 03:
My name is Paula Maynes and I represent the defendants, the New Mexico Department of Health, Ken Lucero and David Rich.

[00:16:47] Speaker 03:
May it please the court?

[00:16:49] Speaker 03:
This appeal involves a career labor relations analyst at DOH whose job it was to write formal disciplinary notices

[00:16:58] Speaker 03:
applying facts to policies to support just cause for formal discipline.

[00:17:04] Speaker 03:
Mr. Jeremy Rodriguez Ortega was very familiar with the leave policies of the department because it was his job to assist the agency to enforce them.

[00:17:14] Speaker 03:
In spite of repeated efforts to have him comply with the requirement to notify the department 30 minutes in advance of a scheduled shift,

[00:17:23] Speaker 03:
Any time he was going to use his intermittent femoral leave and be absent from work or was not ready for work, he did not do so.

[00:17:33] Speaker 03:
In the opening brief of the appellant,

[00:17:36] Speaker 03:
On page 24, he says in his career, he always complied with notice requirements when needing to take leave, that is until two times in February and May of 2020.

[00:17:49] Speaker 03:
He failed to provide notice of his absences when he was working in the office and when he was working from home during the pandemic.

[00:17:57] Speaker 03:
On the dates when he did not work and did not call in, he nonetheless entered his time into the state's time capture system

[00:18:06] Speaker 03:
as hours worked.

[00:18:08] Speaker 03:
All of the time entries were made by him.

[00:18:10] Speaker 03:
All of the dates discussed by Judge Moritz just now with counsel for the appellant were dates when Mr. Rodriguez Ortega entered his time as time worked that day.

[00:18:25] Speaker 03:
He admits that he did.

[00:18:28] Speaker 01:
What do we make of this notice issue that was raised regarding his incapacity

[00:18:34] Speaker 01:
in the fact that his family responded.

[00:18:37] Speaker 01:
In other words, they did on the Friday after the Thursday provide notice that he was unable to earlier give the employer notice.

[00:18:51] Speaker 03:
Well, Your Honor, what happened on May 4th, and it's in the record at page 283

[00:18:58] Speaker 03:
of our supplemental appendix that he sent a text message, and I'm going to read it.

[00:19:09] Speaker 03:
I think it's helpful.

[00:19:10] Speaker 03:
This is the only communication we received on May 4th.

[00:19:17] Speaker 03:
David, I just arrived at the emergency department at Santa Fe Press Hospital.

[00:19:22] Speaker 03:
It's a given I won't be able to telecommute

[00:19:26] Speaker 03:
for the rest of the day.

[00:19:27] Speaker 03:
Now that message doesn't tell you what hours he's claiming he worked.

[00:19:33] Speaker 03:
Ms.

[00:19:34] Speaker 03:
Burke just told you he claimed to have worked overtime that day, but it says he won't be able to telecommute for the rest of the day.

[00:19:41] Speaker 03:
So when he received that notice, Mr. Rich coded his time as half of a day of

[00:19:52] Speaker 03:
What time was the text?

[00:19:58] Speaker 01:
You say that it was coded for half a day of work and half a day of

[00:20:12] Speaker 01:
family medical leave at, right?

[00:20:15] Speaker 03:
Roughly.

[00:20:15] Speaker 03:
I mean, I think it was five and four hours or something.

[00:20:18] Speaker 01:
Okay.

[00:20:19] Speaker 01:
Okay.

[00:20:19] Speaker 01:
Okay.

[00:20:20] Speaker 03:
Roughly.

[00:20:20] Speaker 03:
You're correct.

[00:20:21] Speaker 03:
Yes.

[00:20:22] Speaker 03:
I don't have the time in front of me.

[00:20:24] Speaker 01:
Okay.

[00:20:25] Speaker 01:
All right.

[00:20:26] Speaker 03:
Okay.

[00:20:26] Speaker 01:
That's fine.

[00:20:27] Speaker 01:
What about February then?

[00:20:29] Speaker 03:
Okay.

[00:20:30] Speaker 03:
Going back to February, February 20th, I do not know what time we have no knowledge of what time

[00:20:39] Speaker 03:
The appellant, the plaintiff went to the hospital.

[00:20:43] Speaker 03:
We do know that he was only hospitalized on the 20th.

[00:20:48] Speaker 03:
When appellant's counsel says to you that the family spoke with the department, here's how it happened.

[00:20:57] Speaker 03:
The department reached out to his family.

[00:21:00] Speaker 03:
Nobody from the family called to provide notice.

[00:21:06] Speaker 03:
Instead, his brother, who is a co-defendant or a co-plaintiff in this case,

[00:21:13] Speaker 03:
is an employee of a different division working in a different office of the Department of Health.

[00:21:19] Speaker 03:
And Mr. Rich, the plaintiff's here supervisor, found his phone number in that department and called him.

[00:21:29] Speaker 03:
And he said, yes, my brother's in the hospital.

[00:21:32] Speaker 03:
That's the only communication that the family made with the department.

[00:21:39] Speaker 03:
And although there's, you know, you could ask why didn't we call every day?

[00:21:44] Speaker 03:
Because we can't do that.

[00:21:45] Speaker 03:
That's the reason we have a policy that requires the employee to call and advise the department of their intent to seek and take leave.

[00:21:54] Speaker 02:
Well, what happens if the employee is out of commission and he doesn't have any family and he's called once instead of going into the hospital?

[00:22:08] Speaker 02:
Does he have to call the next day and the day after that and the day after that?

[00:22:13] Speaker 03:
You know, Your Honor, the answer is no.

[00:22:16] Speaker 03:
He does not have to call.

[00:22:18] Speaker 03:
But he does have to call after he says, I'll keep you posted and only wants Fimla in for the day that he's left.

[00:22:26] Speaker 02:
Now that's in May you're talking about now.

[00:22:28] Speaker 03:
Well, that was, yes, that's May.

[00:22:30] Speaker 02:
I'm talking about February.

[00:22:31] Speaker 03:
Well, what he's supposed to do is when he is completely incapacitated, yeah, I think that might give rise to unusual circumstances.

[00:22:41] Speaker 03:
But the testimony in this record, at his deposition, the plaintiff said he was able to use his cell phone.

[00:22:48] Speaker 03:
He could dial and call.

[00:22:49] Speaker 03:
His family was around him and he didn't ask them to call in for him.

[00:22:55] Speaker 03:
So, you know, we don't have a record.

[00:22:58] Speaker 03:
where any kind of attempt was made at any time during these lengthy, you know, six day, nine day absences for him to make the effort to call in and advise us of what the status was.

[00:23:13] Speaker 03:
And that's just an admitted fact here.

[00:23:16] Speaker 03:
So, you know, I would agree that theoretically someone could establish a case of unusual circumstances if they were, you know, unconscious, you know, taken to the hospital.

[00:23:29] Speaker 03:
But that's not the circumstances of this case.

[00:23:32] Speaker 03:
He went to the emergency department.

[00:23:34] Speaker 03:
He had a cell phone that he could dial and use.

[00:23:37] Speaker 03:
Just didn't happen.

[00:23:39] Speaker 01:
Well, wait a minute, so he went to the, okay, we're talking about now the February event, right?

[00:23:44] Speaker 03:
All right, yeah.

[00:23:45] Speaker 01:
Okay, all right, so he goes to the hospital, he's in the emergency room, he texts saying that he's in the emergency room, and he'll keep you advised, keep them advised.

[00:23:57] Speaker 01:
Am I on the right incident now?

[00:24:00] Speaker 03:
You are, I mean, the text message of, that's in May, of course, that message, that text message is May 4th, Your Honor.

[00:24:08] Speaker 01:
Okay, so let's just walk through it to make sure I have it in my head.

[00:24:13] Speaker 01:
The incident in February, did he go to the hospital in February?

[00:24:17] Speaker 03:
He went to the hospital on February 20th.

[00:24:20] Speaker 03:
He didn't call anybody about any of that.

[00:24:23] Speaker 01:
And that's the incident where they reached out to his brother?

[00:24:26] Speaker 03:
That the next day, on Friday, remember, if we look at his time records, he's entering his time.

[00:24:35] Speaker 01:
Okay, but just help me.

[00:24:37] Speaker 01:
I want to just make sure I get the facts right.

[00:24:39] Speaker 01:
So that's where they reached out to his brother, right?

[00:24:42] Speaker 03:
On the next day, the 21st.

[00:24:46] Speaker 01:
Okay, well, if he's in the hospital and he's incapacitated, what do you want from him?

[00:24:52] Speaker 01:
I mean, you know, why would there be anything necessary in that situation?

[00:24:57] Speaker 03:
Well, we would have expected him if he was capable of sending a text message and letting us know he was going into the hospital.

[00:25:04] Speaker 03:
That's what I would expect.

[00:25:06] Speaker 03:
But once we heard that, we coded him for AWOL because he hadn't called in on the 20th.

[00:25:13] Speaker 03:
He hadn't called in on the 21st, but he advised the brother, let him know he wasn't going to be at work the following week in the first three days.

[00:25:26] Speaker 03:
Those were coded FIMLA.

[00:25:28] Speaker 01:
But to Judge Kelly's point, I mean, if he had been in a car accident and therefore went into the hospital and was doped up, he couldn't

[00:25:42] Speaker 01:
communicate.

[00:25:43] Speaker 01:
I mean, the fact that his brother tells you that he's in the hospital, that's good.

[00:25:46] Speaker 01:
That's nice.

[00:25:48] Speaker 01:
But I mean, in terms of him not complying with the policy, I mean, what would reasonably be expected of a person who either physically

[00:25:59] Speaker 01:
was impaired at that time, and I'm using the hypothetical of the car accident, physically impaired or impaired because of medicine or other things that render them incapable.

[00:26:10] Speaker 01:
I guess, and I'm not, you know, pressing judgment here, I'm just trying to understand.

[00:26:15] Speaker 01:
In that situation, why would a policy require him to do anything in that moment?

[00:26:23] Speaker 03:
Well, Your Honor, the hypothetical you pose, I would agree with you.

[00:26:29] Speaker 03:
I don't see how someone can be under an obligation to call in if they're completely and totally incapacitated.

[00:26:36] Speaker 03:
Those aren't the facts.

[00:26:38] Speaker 01:
Okay.

[00:26:38] Speaker 01:
Tell me.

[00:26:39] Speaker 01:
All right.

[00:26:39] Speaker 01:
And so let's narrow in now.

[00:26:41] Speaker 01:
Talking the February event, why is that different than the hypothetical?

[00:26:45] Speaker 01:
What is it about this, the February event that you say distinguishes it?

[00:26:49] Speaker 03:
Because it is our understanding from the record that he had a cell phone and he was capable of dialing it.

[00:26:56] Speaker 01:
In my hypothetical, you could have a cell phone sitting by your bed and you're encoding too.

[00:27:07] Speaker 01:
You couldn't dial it or if you dialed it, it would be gibberish.

[00:27:11] Speaker 01:
Having a cell phone really doesn't answer the question, does it?

[00:27:14] Speaker 03:
Well, it may.

[00:27:16] Speaker 03:
I mean, I just think that in these circumstances, you know, he wasn't taken by ambulance.

[00:27:21] Speaker 03:
He drove himself to the emergency room.

[00:27:23] Speaker 03:
He was admitted through the emergency room.

[00:27:27] Speaker 03:
You know, there's a lot of interaction and talking.

[00:27:30] Speaker 03:
He was with his partner.

[00:27:32] Speaker 03:
Somebody could have

[00:27:35] Speaker 03:
notify the department.

[00:27:37] Speaker 03:
If this happened late at night, then I would have expected somebody to call us in the morning.

[00:27:42] Speaker 01:
To Judge Kelly's point, there may not have been somebody.

[00:27:47] Speaker 01:
I mean, not everybody has a family member.

[00:27:49] Speaker 01:
Not everybody has somebody who can call.

[00:27:52] Speaker 01:
And so, if you're in a situation where, you know, and to your point about the cell phone, again, I could have my cell phone, but I may not be capable of using it.

[00:28:01] Speaker 01:
And so, let me just focus on, you know, I'm trying, thank you for helping me on the facts, but let me focus on the regulation for a second.

[00:28:09] Speaker 01:
At least I was, my understanding that the district court construed that is requiring a family member to call.

[00:28:17] Speaker 01:
And if that's so, I mean, the language says, well, you seem like you were quizzical about that.

[00:28:26] Speaker 01:
Is that not how you read what the district court's order said, that essentially the family member was obliged to call?

[00:28:34] Speaker 03:
Well, I mean, one would expect

[00:28:37] Speaker 03:
the family member to call.

[00:28:39] Speaker 03:
I'm not sure the district court went that far.

[00:28:42] Speaker 03:
I just, I don't know that that's was the district court's conclusion there.

[00:28:48] Speaker 01:
I think- Well, and to, okay, and I'm sorry, to that, let me just follow up briefly.

[00:28:53] Speaker 01:
Well, do you, how do you read the regulation?

[00:28:56] Speaker 01:
I mean, the regulation uses the language may be given by the employee spokesperson.

[00:29:01] Speaker 01:
That seems to be permissive language.

[00:29:02] Speaker 01:
And I'm seeking about 825.303A.

[00:29:07] Speaker 01:
may be given by the spokesperson.

[00:29:09] Speaker 01:
Well, that's permissive language that would seem to suggest that there was no obligation by the brother to call.

[00:29:15] Speaker 01:
There was no obligation by anybody to call.

[00:29:19] Speaker 01:
They may do it, but they weren't obliged to do it in that incapacity situation.

[00:29:24] Speaker 01:
What am I missing?

[00:29:26] Speaker 03:
You're not missing anything except that

[00:29:29] Speaker 03:
All of these events, I believe, took place in the evening.

[00:29:33] Speaker 03:
There wouldn't have even been anybody to call.

[00:29:36] Speaker 03:
But what I'm suggesting is that the next day, somebody should have called.

[00:29:41] Speaker 01:
That's not what happened.

[00:29:43] Speaker 01:
Bingo.

[00:29:43] Speaker 01:
Let's freeze frame to the next day.

[00:29:45] Speaker 01:
Next day, the question is, would the regulation have required somebody to call the next day if

[00:29:55] Speaker 01:
And I'm not saying you have to accept these facts, but if he was incapacitated on the next day, let's make that assumption, would the regulations have required his brother to call?

[00:30:08] Speaker 03:
Well, I agree with you.

[00:30:11] Speaker 03:
The regulation uses the word may.

[00:30:13] Speaker 03:
But I think one of the things that the regulation also says right before that language is that in most cases of even unusual circumstances, there's an opportunity to provide notice in some manner.

[00:30:29] Speaker 03:
And the assumption is that they can accomplish that.

[00:30:33] Speaker 03:
Now, that has never, in the history of both February and May of 2020,

[00:30:44] Speaker 03:
Nobody from around the family or friends of the plaintiff ever contacted you.

[00:30:53] Speaker 01:
And that's what I'm trying to understand.

[00:30:54] Speaker 01:
If you accept the premise that the regulation speaks in permissive terms, then the question would be, why would they have to?

[00:31:05] Speaker 01:
I mean, it may be nice that they did it, but why would they have to if, and note here, and you can tell me if I'm wrong, but what I'm juxtaposing is incapacity and family members who could or could not call, the question would be if they didn't have to call, isn't it enough that he was just incapacitated?

[00:31:27] Speaker 03:
Your Honor, if that were the hypothetically true, yes, I think you're correct.

[00:31:35] Speaker 01:
And how do the facts differ from the hypothetical?

[00:31:40] Speaker 03:
Your Honor, I'm out of time.

[00:31:41] Speaker 03:
Can I finish?

[00:31:42] Speaker 01:
Please answer.

[00:31:42] Speaker 01:
I want to know.

[00:31:43] Speaker 03:
Okay, all right.

[00:31:45] Speaker 03:
Well, first of all, the facts were, and they were established when Mr. Rich called his brother the next day, later in the day, on the 21st,

[00:31:57] Speaker 03:
That in fact, he had been, I think he had either been, but he had knowledge that his brother was hospitalized.

[00:32:05] Speaker 03:
Now, at some point, it became apparent that, I mean, he only spent that night and the next day at the hospital.

[00:32:15] Speaker 03:
Then he was.

[00:32:16] Speaker 03:
I believe he was released.

[00:32:18] Speaker 03:
I'm not positive.

[00:32:19] Speaker 03:
But the point is this.

[00:32:21] Speaker 03:
At that point, the family knew that the employer was looking for him, wanted to know where he was and what was going on.

[00:32:28] Speaker 03:
And he admits he never, during any period in February, did he himself call in or did any member of his family call in?

[00:32:38] Speaker 02:
Is he absent again in February?

[00:32:42] Speaker 02:
Excuse me?

[00:32:43] Speaker 02:
Was he absent again in February after he got out of the hospital?

[00:32:48] Speaker 03:
Well, after he got out of the hospital, he was absent February 24th, 25th, 26th, and 27th, for part of the 27th.

[00:32:56] Speaker 03:
So the answer is yes.

[00:32:59] Speaker 03:
But Judge, just quickly on interference.

[00:33:03] Speaker 03:
Interference requires that the employer knows that this employee is seeking family medical leave.

[00:33:11] Speaker 03:
We never had any notice of that.

[00:33:14] Speaker 03:
So what you're asking is for us to find interference

[00:33:18] Speaker 03:
without any knowledge on the part of the employer, he was just simply absent.

[00:33:24] Speaker 03:
He wasn't there from the perspective of the employer.

[00:33:28] Speaker 03:
So until that phone call was made by us out of concern for his wellbeing, he hadn't invoked any right.

[00:33:37] Speaker 03:
So you're asking us to go back and insert an obligation to recognize fin law when we had no knowledge that it was even in play.

[00:33:46] Speaker 03:
So we'll see how you can find interference on that record.

[00:33:51] Speaker 03:
Your honor.

[00:33:52] Speaker 01:
I'm going to have to hit the time button now.

[00:33:55] Speaker 01:
I appreciate your thoughts and thank you for your argument.

[00:34:00] Speaker 01:
And thank you.

[00:34:01] Speaker 01:
And in rebuttal, if you will give Ms.

[00:34:03] Speaker 01:
Burke 2.5.

[00:34:10] Speaker 01:
I'm in two and a half minutes, yes.

[00:34:15] Speaker 01:
OK.

[00:34:17] Speaker 04:
Thank you, Your Honor.

[00:34:18] Speaker 04:
So to clarify here, I think that the record's getting a little muddied here.

[00:34:23] Speaker 00:
It is, and I want your help.

[00:34:26] Speaker 00:
Let's go walk through the two instances.

[00:34:28] Speaker 04:
Okay, so Thursday, February 20th, 2020, Jeremy, there is no dispute that Jeremy worked physically in the office all day plus

[00:34:40] Speaker 04:
15 minutes of overtime.

[00:34:41] Speaker 04:
Sometime during that evening, I want to say it was 8 p.m., but I could be wrong.

[00:34:46] Speaker 04:
He went to the hospital.

[00:34:48] Speaker 04:
There's nothing in the record to suggest he drove himself, like Miss Main said, but he went to the hospital.

[00:34:54] Speaker 04:
Some family member took him.

[00:34:56] Speaker 02:
When did he get out of the hospital?

[00:34:59] Speaker 04:
Pardon?

[00:35:00] Speaker 02:
When did he get out of the hospital?

[00:35:02] Speaker 04:
I believe he got out of the hospital sometimes Sunday or Monday.

[00:35:06] Speaker 02:
Was that the day 21st or 22nd?

[00:35:09] Speaker 04:
No, he was in the hospital for at least three days, Your Honor.

[00:35:12] Speaker 02:
I'm sorry, speak up.

[00:35:13] Speaker 04:
He was in the hospital for at least three days.

[00:35:17] Speaker 04:
And then he was incapacitated by his medical treatment.

[00:35:21] Speaker 04:
He was on a lot of opiate painkillers, a lot of codeine and all of that stuff.

[00:35:26] Speaker 04:
For that week, he recovered.

[00:35:28] Speaker 04:
They marked him properly.

[00:35:30] Speaker 02:
So he was recuperating at home.

[00:35:32] Speaker 04:
I believe so, Your Honor, yes.

[00:35:34] Speaker 02:
Okay, and did he call anybody during that recuperation period?

[00:35:40] Speaker 04:
There's nothing in the record to suggest one way or the other, but they recognized that he had FMLA designated leave for the Monday, Tuesday, and Wednesday of that week.

[00:35:50] Speaker 02:
Okay, now in the May problem, didn't he say he didn't know his password expired?

[00:35:59] Speaker 04:
There was some issue before he went to the hospital like the week before that because he didn't have any job duties and wasn't receiving emails.

[00:36:09] Speaker 04:
He didn't notice when his password expired because.

[00:36:12] Speaker 04:
The department, when he was at work, he had a giant monitor because the kidney damage was affecting his eyes.

[00:36:18] Speaker 02:
Was he working during that period of time at home?

[00:36:20] Speaker 04:
Well, he was teleworking while his only job duty was to apply for disability retirement.

[00:36:26] Speaker 04:
That was what they tasked him with, even though that was not what he wanted.

[00:36:30] Speaker 02:
Thank you.

[00:36:35] Speaker 04:
So, and then in May, because

[00:36:37] Speaker 04:
he recognized that he was supposed to make sure he was giving notice.

[00:36:42] Speaker 04:
He did, in fact, give notice on his way to the hospital.

[00:36:45] Speaker 04:
Now, when you're on your way to the hospital suffering a medical emergency, you don't know if they're going to admit you and you don't know what's going to happen next.

[00:36:54] Speaker 04:
You don't know what kind of drugs they're going to put you on.

[00:36:56] Speaker 04:
You don't know any of that stuff.

[00:36:58] Speaker 04:
So saying that you're going to stay in touch is his intent to stay in touch.

[00:37:02] Speaker 04:
It doesn't mean that his medical condition allowed him to do so.

[00:37:06] Speaker 04:
And that becomes the question of fact for the jury is whether or not the May text gave sufficient notice that defendants should assume that he was invoking FMLA instead of calling him and telling him that he was going to be fired because he missed work and he could not retroactively designate his time.

[00:37:27] Speaker 01:
All right.

[00:37:27] Speaker 01:
Thank you, counsel, for your arguments.

[00:37:30] Speaker 01:
Case is submitted.

[00:37:31] Speaker 04:
Thank you, Your Honours.

[00:37:33] Speaker 04:
Thank you.