Good morning everyone. Good morning. Please be glad here that this morning, but I've been asking for a lot. Please be here for about two cities each year. With that, we will call first-case headbuttors versus any of the patients who are on the and we may see them. Mr. Paul. Thank you. Good morning. May the police report. My name is Greg Paul and I'm here on behalf of Deborah Hevarger. This appeal lies from the grant for summary judgments. Are you on a reserve? I'm on a reserve? Yes, ma'am. Yes, ma'am. Five minutes, please
. Okay, I would like to ask both cases beginning there already if you could be following on the question whether or not this appeal is somewhat fine. Yes, ma'am. This appeal concerning the Family Medical Leav Act, the district court had dismissed on a summary judgment motion. However, there were remaining claims under the Rehabilitation Act and then proceeded because the court had denied summary judgment on that count. Therefore, the summary judgment order which is found at Joint Appendix, page two, document 125, had entered a judgment order. However, it was not final because there were remaining claims. When the district court had granted the party stipulation for dismissal of the remaining claims on September 28, 2010, this summary judgment 125, Joint Appendix 2 became a final appealable order. What about the claim against the other claim? The Rehabilitation Act? Yes. That had been dis... But without prejudice. Well, it had actually been.
.. I mean, the order is without prejudice and that means that it can be reinstated. And I think we need a dismissal with prejudice in order to have then this issue an appealable order. Now, are the parties prepared to do this? Well, I think the parties would be prepared to do that. Your honor, the stipulation that the court had signed off on, I think was explicit that there was a remaining FMLA claim and the intent was to appeal it. If I understand... I think the problem it had was a little more to be that it says that plus the order is specifically explicit with prejudice that it's assumed to be a final process. So, the reason why we brought that to your attention was letter. What's the point? I mean, asking about the grounds for suggesting that it be the fact that we are in arguments this morning on the merits of the appeal of the remaining either fact to the district court. And then that was all. Do you give us a final word to do that? Because there is precedent in this circuit that the dismissal without prejudice is not a final order and we don't have jurisdiction. So, if you want us to consider the merits, please get that order
. Certainly, just so it's clear from the appellance point of view that we would consider that to be a stipulation with prejudice and we certainly take action out of the court's advice to so that too. Okay, thank you. The ultimate, I think, issue that happened here is the court... The district court had granted some rejudgment finding that Mr. Mancino in his individual capacity did not have the ultimate authority in the employment decision making, whether that's hiring or firing or anything else. However, the statutory language of the FMLA does not require that high of a burden set forth in 29 USC 2611, which defines an employer to be anyone who acts in the interest of an employer directly or indirectly. The subsection to the subsection to modify subsection three. In other words, subsection three says that a federal public agency is an employer. Subsection two talks about the acts of employment, the acts of affecting employment. And, you know, there are circuits that say it does not. With respect to the ultimate cause of action against an individual capacity in the public entity or with respect to the definition of.
.. With respect to supervisors within the public entity and their actions. That, I think that issue, of course we think that the district court properly found that there can be individual liability recognizing there was a spin of authority in the courts. However, that issue we didn't appeal on. I don't think there was a cross appeal in any way filed. I don't... I think that the district courts that have spoken to it certainly uphold in our circuit, uphold the possibility of individual liability. I don't think that that issue really was brief because I don't think it was specifically taken up on appeal. That is correct. There are certain splits in authority, however. So, all I need to say is that the first can there be individual liability? And then, besides whether the district court here is there any kind of.
.. I think that is a predicate to it. Yes, Your Honor. I think that the district court was correct in its analysis that there can be individual liability because this statute is specific. So, we certainly think that there can be individual liability looking at the facts. In this case, all of them suggest in our favor, which is Mr. Manson had signed the termination letter. But you are presupposing we have made the initial decision not to follow the six circuit. Now, we're not bound by the six circuit, but we could find it persuasive. Yes, I am assuming that because neither of the parties have brought that as an issue before this court, but certainly the court could address that issue. Does the impact of such a disadvantage? It does. Is that an issue that would be like me to take up now or more of the..
. No, you didn't factor in your brief view point. If the names, you don't have to name one, so you don't have to name something. But the wait here is the next slide. The one who gets the marriage, you are not going to see on the school board. Okay, thank you. Number one, Mr. Manson had signed the termination letter. And that's in the joint appendix at 99. So that's certainly a fact that is persuasive. Second, at joint appendix 95, which is a memorandum that was prepared by Mr. Manson to the director of human resources after the termination decision, he writes, as per your request, I have will, he says, briefly outlined a summary of the events that led up to my decision to terminate. And this is very insightful because this is Mr. Manson's decision to terminate. It's not just the formality of signing a termination letter
. It was upon his input, his recommendation, and as outlined in this memorandum, it was his decision. The fact that it was upheld by Judge Maudo does not defeat our argument that there can be individual liability. The cases that are on point discuss the ability to hire and fire they discuss whether there was involvement in the decision. Now we know the facts of this case that there were three individuals who were involved in the discussion, but it was all based upon Mr. Manson as the supervisor to make the decision to terminate. His performance evaluations are very insightful. Miss Haybarter was excellent on all scores with the exception of her attendance due to health issues. Very insightful into the very heart of why the FMOA is necessary, why it provides protections to see doctors, to reasonable absences from employment so that she can get the treatment that she needed during that time. The Supreme Court's decision install only reinforces it, although that was in a use series case. So it's not invoking the statutory language that strongly supports our argument under the FMOA. It still upholds the proposition that subordinate decision makers cannot insulate themselves just by the higher up who rubber stands the decision. The second, yes, the discriminant. That's correct. That's totally separate issue, but related and I think as the appellate had asked the court to stay the proceedings, that case only reinforces the concept that a subordinate decision maker can still be held liable
. Ultimately, in this case, we are looking at the statutory language of the FMOA, which does permit, we argue, individual liability, certainly under the facts of this case and under legal precedent. Thank you. Thank you, Mayor. May I please the court, Edmund Joyle representing Mr. Mancey in this case. Your Honor, this. Your Honor, I agree with the court. I do think that there should have been and it was an oversight. My part not to have filed a motion to dismiss the appeal. I do believe that there needs to be a with prejudice order from. If you read a. I believe so, Your Honor, but I was not involved in those negotiations as a matter of fact. I didn't know about those negotiations until I saw the order come from. From Judge Lancaster
. But are you prepared with co counsel to go get a final order? I will do your own absolutely very good. This case really boils down to one simple thing in relationship to judge Lancaster's word. We agree that that based upon some of the language in the FMOA that Mr. Mancey could theoretically be held individually liable. Although we did brief in our brief to judge Lancaster the concept that he should not be held on. Based upon six circuit rule. However, what Judge Lancaster found in this case was fairly simple. Mr. Paul's position is that because Mr. Mancey, you know, acting as he did within the court system, which was as her supervisor, went up the chain of command, did an analysis, did his job as a supervisor, and then went to his supervisors. In other words, as the court knows, Ms. Haybarger and all the employees of the probation department are in effect state employees, although paid by the county of one. And in that the final decision maker is the president judge of the court who was a state employee, a member employed by AOPC. In this particular case, the facts are that Ms
. Haybarger was put on probation that according to Mr. Mancey, no she did not improve to the extent that he believed necessary. But there's another piece of this, which was included during the course of the litigation and discovery in that being that there had also been investigations done by two other supervisors in the probation department that had to do with issues involving the management style and skills of Ms. Haybarger, who was the office manager. Now, isn't this summary judgment where we have to find, if we find issues in material fact, summary judgment is inappropriate. And you are presenting the position of the appellate, but if one looks at this from the viewpoint of the appellate, what she has pled, doesn't she say that she was hospitalized for an extensive period of time. And then she was fired for taking this extended leave, which qualified under the FMLA. What I believe she does, Your Honor, is suggest that she had been hospitalized and had been fired and alleges that it was because she took leave. She never, the facts are that, and the record will show during the course of discovery that Ms. Haybarger did not apply for FMLA leave, that Ms. Haybarger was aware as the office manager who was responsible for passing out all of the documentation in terms of Warren's County's FMLA policy, never once requested of Mr. Manceino that she needed time. As a matter of fact, historically, because she had been hospitalized or out for diabetes and heart related issues, she had taken her paid leave, which was vacation time. There was never any, the allegation is that she did that. However, this isn't a situation in which the facts of the case in Ms. Haybarger herself is that she never gave notice to her employer that she wished to take anything other than the type of leave she had taken in the past. So, the FMLA- Which would be her regular sick leave, which was exhausted, right? Well, at that point in time, there is no evidence that it had been your own. There is no evidence that her sick leave was exhausted. And the evidence that of record is that she had taken in the past, she had not even made an inquiry to Mr. Manceino or to the human resources department as to whether or not she was entitled to FMLA or how she would go about even making that determination. So, it's your position that the FMLA issue is an afterthought that she never asked for it beforehand. Absolutely, because the suit against the court system was based upon the rehabilitation and that she was a stable person needing an accommodation. And the question in that part of the case was whether or not FMLA was deemed to be an accommodation to her medical needs. But, odd position for Mr. Manceino's part of this is he didn't interfere with her taking it because he had no control over it. Nor did he tell her she couldn't take it. Or, I don't want to say, nor did she ask if she could take it. Nor did she ask if she could take it
. However, this isn't a situation in which the facts of the case in Ms. Haybarger herself is that she never gave notice to her employer that she wished to take anything other than the type of leave she had taken in the past. So, the FMLA- Which would be her regular sick leave, which was exhausted, right? Well, at that point in time, there is no evidence that it had been your own. There is no evidence that her sick leave was exhausted. And the evidence that of record is that she had taken in the past, she had not even made an inquiry to Mr. Manceino or to the human resources department as to whether or not she was entitled to FMLA or how she would go about even making that determination. So, it's your position that the FMLA issue is an afterthought that she never asked for it beforehand. Absolutely, because the suit against the court system was based upon the rehabilitation and that she was a stable person needing an accommodation. And the question in that part of the case was whether or not FMLA was deemed to be an accommodation to her medical needs. But, odd position for Mr. Manceino's part of this is he didn't interfere with her taking it because he had no control over it. Nor did he tell her she couldn't take it. Or, I don't want to say, nor did she ask if she could take it. Nor did she ask if she could take it. She never gave appropriate notice of something new, I guess, is the way that I want to put it. She had gone in the past, had been granted extended leaves, she had taken her time. There was evidence that they had worked with her in the past over this and that she never came to them and changed them. Although that was in response to the response to the loss of the issue of notice that FMLA was never involved in the time of the race. I believe it has your honor, I believe it was in my not before this court, not before this court. And I don't think it was raised by the appellant before this court. I think what was focused here on was the fact whether FMLA was the employer and his alleged animus based upon or the discriminatory animus based upon her health issues was the reason that she was terminated. We don't really have to look at the criminal employment circumstances of the informant. I believe you do your honor and I think that that's part of this as well is the issue of cases that... Judge Mato had sent to the signing. Judge Mato indeed he did your honor and the affidavit that was submitted by Judge Mato suggested that he had a meeting with Mr. Mancino
. She never gave appropriate notice of something new, I guess, is the way that I want to put it. She had gone in the past, had been granted extended leaves, she had taken her time. There was evidence that they had worked with her in the past over this and that she never came to them and changed them. Although that was in response to the response to the loss of the issue of notice that FMLA was never involved in the time of the race. I believe it has your honor, I believe it was in my not before this court, not before this court. And I don't think it was raised by the appellant before this court. I think what was focused here on was the fact whether FMLA was the employer and his alleged animus based upon or the discriminatory animus based upon her health issues was the reason that she was terminated. We don't really have to look at the criminal employment circumstances of the informant. I believe you do your honor and I think that that's part of this as well is the issue of cases that... Judge Mato had sent to the signing. Judge Mato indeed he did your honor and the affidavit that was submitted by Judge Mato suggested that he had a meeting with Mr. Mancino. It stated that he had a meeting with the court administrator who would have been Mr. Mancino's supervisor. Mr. Mancino laid out to the judge the issues involving the performance issues that he found for Miss Haybarger. He also, Judge Mato also indicated that he had personal knowledge of other issues specifically one that had to do with her failure to comply with billing cycles properly. That at no point in time was there ever any discussion of absenteeism due to health issues. Judge Mato suggested stated in his affidavit that he did not know about those and also stated that had he known about those that he would have made the same decision to terminate. But wasn't it Mr. Mancino who made the initial decision that she should be terminated? He did and he made everything together and took it to Judge Mato for his signature. Right and there is no evidence of record in this case that Mr. Mancino made any decision based upon health issues. But he made the decision that she should be terminated. And he made a decision that in his view she should be terminated and made that recommendation as he had to do to Judge Mato. Judge Mato's position was that based on his own knowledge of things that were going on in that office, that termination was warranted
. It stated that he had a meeting with the court administrator who would have been Mr. Mancino's supervisor. Mr. Mancino laid out to the judge the issues involving the performance issues that he found for Miss Haybarger. He also, Judge Mato also indicated that he had personal knowledge of other issues specifically one that had to do with her failure to comply with billing cycles properly. That at no point in time was there ever any discussion of absenteeism due to health issues. Judge Mato suggested stated in his affidavit that he did not know about those and also stated that had he known about those that he would have made the same decision to terminate. But wasn't it Mr. Mancino who made the initial decision that she should be terminated? He did and he made everything together and took it to Judge Mato for his signature. Right and there is no evidence of record in this case that Mr. Mancino made any decision based upon health issues. But he made the decision that she should be terminated. And he made a decision that in his view she should be terminated and made that recommendation as he had to do to Judge Mato. Judge Mato's position was that based on his own knowledge of things that were going on in that office, that termination was warranted. Why do you think that the fact that Mr. Mancino made the recommendation that the fact that he had been misled is not enough to use the kind of question that he had to put in the office in the court. Well, I believe you're under the fact is that under the FMLA is the true employer. That being the Commonwealth of Pennsylvania through AOPC is not subject to suit. And that was determined early on. I believe under the Left Amendment. So what we're suggesting, what the attenuation is, is that a supervisor of an employer, the supervisor within an employer who cannot be subject to FMLA retaliation is now being subject to that. And we raised that issue below under 11th Amendment argue. But you're not disputing that it supervises public opinions and court. Can you help out? No, I'm not your honor. What I'm suggesting in response to Judge Vanasky's question is this. There what in order to hold Mr. Mancino libel, one has to then presume and prove that he had a discriminatory animus towards Miss Haybarger based upon a protected class issue. In this case, there has been no evidence produced by
. Why do you think that the fact that Mr. Mancino made the recommendation that the fact that he had been misled is not enough to use the kind of question that he had to put in the office in the court. Well, I believe you're under the fact is that under the FMLA is the true employer. That being the Commonwealth of Pennsylvania through AOPC is not subject to suit. And that was determined early on. I believe under the Left Amendment. So what we're suggesting, what the attenuation is, is that a supervisor of an employer, the supervisor within an employer who cannot be subject to FMLA retaliation is now being subject to that. And we raised that issue below under 11th Amendment argue. But you're not disputing that it supervises public opinions and court. Can you help out? No, I'm not your honor. What I'm suggesting in response to Judge Vanasky's question is this. There what in order to hold Mr. Mancino libel, one has to then presume and prove that he had a discriminatory animus towards Miss Haybarger based upon a protected class issue. In this case, there has been no evidence produced by. The basis for the additional court, what Mr. Mancino did not have the authority to retire and hire. Right. He needed to ask him more exactly what I was going to do. Exactly. And he used Judge Mottos, affidavit, as the basis for that. There are two issues that if I might, both of the cases that have been cited by. Palantin or brief, Gilvitis and McKinan are both cases in which motions to dismiss had been filed. They were not summary judgment motions. In McKinan, there was, there was an alternative motion file. There was a motion for summary judgment. And a motion to dismiss. In both of those cases, the motions to dismiss were denied because the court indicated that further discovery was needed to make a determination as to whether or not the supervisor had been sued. Was an employer
. The basis for the additional court, what Mr. Mancino did not have the authority to retire and hire. Right. He needed to ask him more exactly what I was going to do. Exactly. And he used Judge Mottos, affidavit, as the basis for that. There are two issues that if I might, both of the cases that have been cited by. Palantin or brief, Gilvitis and McKinan are both cases in which motions to dismiss had been filed. They were not summary judgment motions. In McKinan, there was, there was an alternative motion file. There was a motion for summary judgment. And a motion to dismiss. In both of those cases, the motions to dismiss were denied because the court indicated that further discovery was needed to make a determination as to whether or not the supervisor had been sued. Was an employer. In this case, we have a summary judgment motion where there had been discovery. Where there was an affidavit that was submitted that about terms and conditions and effective employment, which is what Judge Lancaster ruled upon, which stated. That Judge Mottos had personal knowledge and made a decision and there was nothing indicated to counteract that. So the idea of whether and part of that was that the palantin her argument to the lower court suggested a cast-bought theory here, which brings the stop case into perspective. However, stop again. There have been a couple cases that have come after that one in the Western district, which is the shinseki case where someone sued and used the stop argument and the court then differentiated by suggesting you needed some evidence to show similar circumstances as and stop in this particular case. We raised the issue because stop we found that stop was there and asked for our stay, but not based because we did not know at that point what the stop issues were. Here we know it and there have been cases since then in which the courts have determined that you need to show some more evidence of an animus. In stop you had conversations that were being made about these people not liking military folks. And wanted to get rid of it. It was according to the testimony. Mr. Mancino said that Ms. Haybarger as the office manager was the person responsible for taking the request and those requests then went to the human resources department
. In this case, we have a summary judgment motion where there had been discovery. Where there was an affidavit that was submitted that about terms and conditions and effective employment, which is what Judge Lancaster ruled upon, which stated. That Judge Mottos had personal knowledge and made a decision and there was nothing indicated to counteract that. So the idea of whether and part of that was that the palantin her argument to the lower court suggested a cast-bought theory here, which brings the stop case into perspective. However, stop again. There have been a couple cases that have come after that one in the Western district, which is the shinseki case where someone sued and used the stop argument and the court then differentiated by suggesting you needed some evidence to show similar circumstances as and stop in this particular case. We raised the issue because stop we found that stop was there and asked for our stay, but not based because we did not know at that point what the stop issues were. Here we know it and there have been cases since then in which the courts have determined that you need to show some more evidence of an animus. In stop you had conversations that were being made about these people not liking military folks. And wanted to get rid of it. It was according to the testimony. Mr. Mancino said that Ms. Haybarger as the office manager was the person responsible for taking the request and those requests then went to the human resources department. So his position was no, I'm not supposed to monitor what she does and that if I don't know the answer to the question, she's to go to the human resources department to do that. The evidence is that from this quimby who was human resources director that indeed that was the case and Ms. Haybarger never went to her to ask for any any types of. Would you agree that it was Mr. Mancino's responsible? It is director of the probation office and monitor the state boarder's job. Absolutely. What is your position concerning whether subsection two, the description of an employer, modify subsection three of public agency? Do you agree that a supervisor who determines the terms of employment, who determines whether a termination should be made even though someone has formally signed off on it, would fit under the definition of employer in the FMLA? I would your honor if those were the facts. But I think in this particular case there were differences. In the Haydot case which was cited, you had a city manager who had the ability to make a hiring and firing decision without any input from anyone else. In this particular case, AOPC and the court system vest that responsibility in the president judge to say it's a sign off I think is mistating. But isn't that an issue of material fact exactly whether it was a sign off or not? The exact extent of Mr. Mancino's supervisory powers over Miss Haybarger. Well I don't think that there is an initial material fact. There was never anything raised in the lower court as to whether or not Mr
. So his position was no, I'm not supposed to monitor what she does and that if I don't know the answer to the question, she's to go to the human resources department to do that. The evidence is that from this quimby who was human resources director that indeed that was the case and Ms. Haybarger never went to her to ask for any any types of. Would you agree that it was Mr. Mancino's responsible? It is director of the probation office and monitor the state boarder's job. Absolutely. What is your position concerning whether subsection two, the description of an employer, modify subsection three of public agency? Do you agree that a supervisor who determines the terms of employment, who determines whether a termination should be made even though someone has formally signed off on it, would fit under the definition of employer in the FMLA? I would your honor if those were the facts. But I think in this particular case there were differences. In the Haydot case which was cited, you had a city manager who had the ability to make a hiring and firing decision without any input from anyone else. In this particular case, AOPC and the court system vest that responsibility in the president judge to say it's a sign off I think is mistating. But isn't that an issue of material fact exactly whether it was a sign off or not? The exact extent of Mr. Mancino's supervisory powers over Miss Haybarger. Well I don't think that there is an initial material fact. There was never anything raised in the lower court as to whether or not Mr. Mancino had what his authority was. What was raised was what did he do and what was his role as a supervisor. But it always came back down in terms of factual issues to the fact that it was not Mr. Mancino who had the authority to do anything other than recommend if you so chose disciplinary action to the president judge. And it was the president judge who made the judgment not a sign off. That affidavit which is what Judge Langcaster suggested was that he knew personally other things that were going on there that were involving Miss Haybarger. And he felt that that termination was warranted based upon the totality of the circumstances that he did. Thank you. Thank you. I'm not sure how much you want me to get into some of the facts that were mentioned here but briefly I'll just respond. The issue of notice under the FMLA is clearly a factual dispute. I can see it in the jury instruction right now. I mean the facts are that Miss Haybarger and her husband when she after she was hospitalized had talked to Mr. Archibon and advised them of the need for leave
. Mancino had what his authority was. What was raised was what did he do and what was his role as a supervisor. But it always came back down in terms of factual issues to the fact that it was not Mr. Mancino who had the authority to do anything other than recommend if you so chose disciplinary action to the president judge. And it was the president judge who made the judgment not a sign off. That affidavit which is what Judge Langcaster suggested was that he knew personally other things that were going on there that were involving Miss Haybarger. And he felt that that termination was warranted based upon the totality of the circumstances that he did. Thank you. Thank you. I'm not sure how much you want me to get into some of the facts that were mentioned here but briefly I'll just respond. The issue of notice under the FMLA is clearly a factual dispute. I can see it in the jury instruction right now. I mean the facts are that Miss Haybarger and her husband when she after she was hospitalized had talked to Mr. Archibon and advised them of the need for leave. What we're really getting into here is at that time the county's policy which is in violation of the FMLA as we argued below to use all of your sick leave first and then use FMLA. The statute speaks directly to that and that's you know illegal really. And Judge Langcaster had mentioned that just very briefly in a footnote saying that he didn't have in the summary judgment order. He didn't have to get to that because he had found that Mr. Mancino didn't have the higher and higher authority but these are all issues that are hotly disputed below similarly with respect to whose responsible for administering the FMLA as Mr. Joyle had mentioned. The HR director Miss Quinby had said that it was you know Mr. Mancino's responsibility Mr. Mancino said it was Miss Haybarger's responsibility. There was an awful lot of pointing the fingers and again I think that because of that policy that they had in place at that time to use the sick leave first just unlike other employers they often didn't get to the FMLA but that doesn't mean that an employee such as Miss Haybarger doesn't should not enjoy the protections of the FMLA. But did she ever realize that that issue is not before us but if it ever make them before the court in some later time did she ever request FMLA? Under the during instructions under the law you know the no use of the magic words yes in other words she never submitted a form entitled family medical leave. She never used the magical words family medical leave act but she certainly advised of her need for medical leave of absence particularly when she was hospitalized when she knew that she was going to be out for several weeks. So absolutely yes to that question without using the magic language so and that's perfectly permissible under the statute. The issue of Judge Mato I think is also clear if we look at his affidavit particularly at 110 joint appendix 110 it's very clear he writes the request that her employment be terminated I think it's very clear today that and based upon the record that all of this generated from Mr
. Mancino. So she's not dating back to the very original performance evaluations and they are particularly insightful because Miss Mr. Mancino had written that she met or exceeded all performance evaluations in03 except for attendance and specifically says due to her she needs to improve her health issues. I mean this is particularly insightful into his state of mind in his decision making process that led to the probationary period that led to his decision really to terminate I only go back to that memo in05 where he writes to miss Wendy my decision to terminate unless there's other questions I think we've covered the point thank you. Thank you