[00:00:02] Speaker 04: Good morning, may it please the court. [00:00:04] Speaker 04: I'm JP Camp, I represent the plaintiff appellant Tomas Perez. [00:00:08] Speaker 04: I'd like to reserve five minutes for rebuttal and I'll keep an eye on the clock. [00:00:14] Speaker 04: In this case, [00:00:16] Speaker 04: There is plain legal error. [00:00:19] Speaker 04: The verdict form, question one, the jury committed plain legal error on the substantive law of the FMLA. [00:00:28] Speaker 04: The jury instructions that they were given, particularly jury instruction number 13, which is excerpts of record 022, told the jury that a serious health condition was an illness, injury, or physical condition that involves continuing treatment [00:00:46] Speaker 04: by a healthcare provider. [00:00:48] Speaker 04: And that's all set forth in 29 USC 2611, subsection 11 is the definition, and also 29 CFR section 825.113A. [00:01:02] Speaker 04: Further, 29 CFR section 825.115 defines that continuing treatment as [00:01:13] Speaker 04: I'm sorry. [00:01:16] Speaker 04: It requires that there be more than three consecutive days of incapacity and treatment. [00:01:21] Speaker 04: Treatment two or more times within a 30-day period of the first day of the incapacity. [00:01:28] Speaker 04: It's uncontested in this case. [00:01:31] Speaker 04: It is absolutely on November 1st of 2017, Mr. Perez goes and sees Dr. Black at the Golden Health Clinic and is taken off work until [00:01:43] Speaker 04: uh... november sixth that's clearly more than three consecutive days and he's diagnosed with uh... chest wall contusion and ultimately later on he is he is uh... diagnosed uh... specifically with muscle spasms and fasciculations things that are involuntary movements that cannot be faked it cannot be fraudulently done the doctor placed hands on mister Perez and says you've got muscle spasms you've got I see the fasciculations I'm putting you on flexor roll [00:02:12] Speaker 04: Flexeril is a muscle relaxant. [00:02:14] Speaker 04: You can't drive 26-ton haul trucks underground 12 hours a day if you're on a muscle relaxer like Flexeril. [00:02:21] Speaker 04: It just isn't safe. [00:02:23] Speaker 04: And so the doctor took Mr. Perez off work. [00:02:26] Speaker 04: Mr. President asked for this. [00:02:28] Speaker 04: He comes up out of the mine, hits the cold air, and suddenly his chest seizes up. [00:02:33] Speaker 04: He reports it to a mine safety person. [00:02:36] Speaker 04: They take him to the room where they examine people, and then they take him on to Dr. Black. [00:02:41] Speaker 04: He's got a serious health condition and the jury's verdict their answer to question number one is simply not consistent with the law. [00:02:55] Speaker 04: It's plain legal error. [00:02:57] Speaker 02: There was other evidence that the employer believed that your client was fabricating the [00:03:07] Speaker 04: factor extent of the injuries so your position would be the jury could not credit that in the face of doctor blacks uh... treatment and that i think is is the number of this case it is a question of first impression uh... we have the case of sims verses alameda contra costa transit district from the northern district of california that recite that says the consequences of not following [00:03:30] Speaker 04: the regulations in this statute with respect to getting a recertification within the first 30 days, on one hand, and more specifically in Sims, they're really talking about the second and third opinion. [00:03:44] Speaker 04: If an employer thinks that employee is faking it, if they think that somehow or another the leave is something that's not entitled to, then the law specifically provides this process [00:04:00] Speaker 01: But isn't the language in the provision all discretionary? [00:04:06] Speaker 01: It doesn't mandate that this must be done. [00:04:09] Speaker 01: It just is a helpful suggestion as I read it. [00:04:13] Speaker 01: What am I reading it incorrectly? [00:04:15] Speaker 04: Well, it uses the word may, and as the court in Sims found, that word as used in the context of the public policy, the legislative history, and everything related to the FMLA's procedure, that word may is ambiguous here. [00:04:34] Speaker 04: and when the court analyzed it says it can't be that somebody an employee brings certification from a doctor saying that they have to be off work and on leave under the FMLA and that the employer can just sit there and say [00:04:49] Speaker 04: Yeah, we don't believe you. [00:04:50] Speaker 04: We're not going to grant you that. [00:04:52] Speaker 04: We're not going to get a second opinion from a doctor. [00:04:55] Speaker 04: It's just our subjective belief that you are not sufficiently. [00:04:59] Speaker 02: Well, it's not just subjective here. [00:05:00] Speaker 02: I mean, there was videos. [00:05:01] Speaker 02: There was all kinds of other. [00:05:02] Speaker 02: There was statements of other employees. [00:05:04] Speaker 02: So I mean, the employer runs some risk, I suppose, in not getting a second opinion. [00:05:08] Speaker 02: Here, they didn't do that. [00:05:09] Speaker 02: But what tells us that they have to? [00:05:12] Speaker 02: You have Sims. [00:05:13] Speaker 02: Sims. [00:05:14] Speaker 02: But it seems like not everyone has agreed with Sims. [00:05:17] Speaker 04: Not everybody has there are a few cases that have most recent one. [00:05:20] Speaker 04: I think we found from 2021 Sperm it's there. [00:05:24] Speaker 04: I think was the name of the case. [00:05:26] Speaker 04: That's in our in our cited in our reply brief. [00:05:30] Speaker 02: What's the lineup on this issue. [00:05:32] Speaker 02: So, I mean, you've got Sims is anybody agree with Sims. [00:05:35] Speaker 04: Yes, there are there are some district court as I was mentioning the the case that we cited I think it's called sperm. [00:05:42] Speaker 04: It's learned as a district court. [00:05:44] Speaker 02: Okay. [00:05:45] Speaker 02: How about circuits? [00:05:47] Speaker 04: I have not found anything in any of the circuits. [00:05:50] Speaker 02: Okay. [00:05:50] Speaker 02: How about on the other side of you know, this? [00:05:55] Speaker 04: There are There are some some cases at the circuit level that as judge time said that this is a [00:06:03] Speaker 04: This is merely a permissive procedure that they can follow. [00:06:08] Speaker 02: So are you asking us then to basically disagree with those? [00:06:10] Speaker 02: If you are, that's fine. [00:06:12] Speaker 02: I am. [00:06:12] Speaker 04: I'm asking you to agree with SIMS because I think if you read that case, its analysis is spot on. [00:06:18] Speaker 04: This is the way it has to work. [00:06:20] Speaker 04: If the employer can just ignore what the doctor has to say and take the whole thing in and have a court decide, that's not the way this is intended. [00:06:30] Speaker 03: But the employer would face the risk that it may lose that trial if they do that. [00:06:36] Speaker 04: And Sim said, yeah, but for an employee to even get there, to be able to find an attorney, be able to have the wherewithal to actually bring the case, then not many will. [00:06:45] Speaker 03: Suppose the facts were even more egregious than this. [00:06:49] Speaker 03: Suppose an employer says, employee, excuse me, says he needs to lift boxes for his job, but he can't because he sprained his shoulder and the company hires [00:07:00] Speaker 03: Someone to videotape him and they see him at, you know, at Muscle Beach in Venice, you know, bench pressing 300 pounds, clearly can lift. [00:07:08] Speaker 03: Does employer in that case still have to get a certification from, you know, or second medical opinion? [00:07:14] Speaker 04: I believe that under SIMS, the way that it works, they do need to because what needs to happen is it needs to go to a doctor, have the doctor review the video. [00:07:24] Speaker 04: and say, yeah, this person doesn't need to leave or leave of absence. [00:07:28] Speaker 04: Because you rob, in this case, you rob Mr. Perez. [00:07:32] Speaker 04: He loses his $100,000 job based on what the employer says without having the benefit of the employer saying, we disagree. [00:07:40] Speaker 04: Let's have another doctor look at it and then getting the third opinion if there's a difference between the two. [00:07:46] Speaker 04: It takes away his opportunity. [00:07:49] Speaker 04: he has no recourse against this. [00:07:52] Speaker 03: Recourse is filing a lawsuit. [00:07:54] Speaker 04: Is to file a lawsuit in court. [00:07:57] Speaker 04: And that's where we think that, and then when you're in court, the jury instructions should be read, the instructions that we presented at ER 37 and 38 regarding the recertification of the second opinions. [00:08:11] Speaker 04: Those jury instructions should be given because a jury could look at that and say, [00:08:16] Speaker 04: This employer has the right, it has the tools, and it didn't use it. [00:08:21] Speaker 04: Now, why might it not have used those tools? [00:08:24] Speaker 04: It's because maybe they had a result in mind that they wanted to pursue, and they weren't interested in getting at whatever the truth might be. [00:08:32] Speaker 04: Getting back to the point, Mr. Perez [00:08:35] Speaker 04: The only restrictions he had was don't drive haul trucks underground on those bumpy roads 12 hours a day, and particularly don't do it on flexor rail. [00:08:45] Speaker 04: It didn't say that he couldn't go to a casino. [00:08:47] Speaker 04: It didn't say he couldn't do handyman work around his trailer. [00:08:51] Speaker 04: It didn't say that he couldn't drive his personal vehicle as opposed to a big dump truck. [00:08:56] Speaker 04: None of the things that they point to in those videos are things that the doctor said that he couldn't do. [00:09:03] Speaker 04: So not providing the jury with the instructions that, hey, they have tools at their disposal, not only under federal law, but under state law. [00:09:11] Speaker 04: NRS 6C.140 gives them the right to get a second opinion if they don't agree with what the worker's comp doctor has to say. [00:09:19] Speaker 04: So to not provide the jury with those instructions, it skews the credibility, it skews the credibility determination of a jury. [00:09:31] Speaker 04: Because if they're not told that the employer had these tools and didn't use them, then they're left to believe, oh, Mr. Perez is just a liar. [00:09:40] Speaker 01: Was this Sims rule, which is rather interesting here, was it preserved for appeal? [00:09:46] Speaker 04: Yes, it was. [00:09:47] Speaker 04: We made the argument. [00:09:52] Speaker 04: I can cite you the specific placement. [00:09:56] Speaker 04: We were arguing over jury instructions. [00:09:59] Speaker 04: It's at. [00:10:01] Speaker 04: ER 74 actually starts on 73. [00:10:08] Speaker 04: and goes over to 75. [00:10:10] Speaker 01: Was it included in a Rule 59 motion for a new trial? [00:10:14] Speaker 04: It was not. [00:10:14] Speaker 04: We did not bring a Rule 59 motion, Your Honor, mostly because we felt it would have been futile. [00:10:20] Speaker 04: The main issue is with the jury instructions, and there was just no indication that the court would have changed its mind. [00:10:26] Speaker 04: It would have been futile, and the law general doesn't require parties to take futile actions. [00:10:35] Speaker 04: So refer back to our brief on all of the jury instructions we think should have been given and weren't given. [00:10:43] Speaker 04: And it really skews the analysis for the jury of the credibility to not know that the tools are available and that the employer just didn't use them. [00:10:52] Speaker 04: and it robs Mr. Perez of his opportunity to have that second opinion to assure the employer that what he's doing is okay and that he has a need for the leave and also just factually [00:11:09] Speaker 04: By the time they took the video, he'd been on the muscle relaxers for three days, was feeling considerably better. [00:11:14] Speaker 04: And the doctor did say, you shouldn't be staying in bed. [00:11:18] Speaker 04: You should be up and doing things, getting back to normal. [00:11:21] Speaker 04: People heal on a continuum. [00:11:23] Speaker 04: It's not a light switch. [00:11:23] Speaker 04: It's not on the 16th of November or 19th of November. [00:11:27] Speaker 04: Suddenly, he's all better after having stayed in bed. [00:11:30] Speaker 04: He gets better over the course of time. [00:11:33] Speaker 04: Unless there are other questions I'd like to reserve. [00:11:36] Speaker 03: Thank you. [00:11:36] Speaker 04: Thank you. [00:11:50] Speaker 00: May it please the court. [00:11:52] Speaker 00: My name is Jack Sholkoff and I represent the appellee Barrett Goldstrike Mines. [00:11:56] Speaker 00: The court should affirm the jury's verdict and the judgment of district court in favor of Barrett. [00:12:02] Speaker 00: Substantial evidence supports the jury's verdict, both that Mr. Perez did not have a serious health condition under FMLA, that's what the jury decided, and that Barrett did not fire him because he fired a worker's comp claim. [00:12:17] Speaker 00: The substantial evidence in the record is overwhelming. [00:12:21] Speaker 00: Mr. Perez worked in an extremely dangerous environment, a mine, sometimes a mile below the surface. [00:12:27] Speaker 00: Because it was a dangerous environment, the evidence showed that Barrick had rules regarding reporting of accidents, rules regarding employee integrity, which were critical to the safe operation of the mine. [00:12:40] Speaker 00: It took its safety precautions and requirements very seriously. [00:12:45] Speaker 00: There was evidence that Mr. Perez did not immediately report the accident, but waited a few hours later. [00:12:51] Speaker 00: Ultimately, there was evidence that Barrett could not corroborate that the accident actually happened at all. [00:12:58] Speaker 00: Witnesses alleged that they saw Mr. Perez joking at the end of his shift. [00:13:03] Speaker 00: They claimed that they had learned that Mr. Perez was telling people that he had faked the injury in order to take time off to work on his rental properties. [00:13:12] Speaker 00: There was evidence that the doctor's certification of Mr. Perez's injury rested solely on Mr. Perez's own representations of his injury, rather than some purely objective evidence. [00:13:24] Speaker 02: What about the spasms? [00:13:26] Speaker 00: Well, the spasms, he said that there was a, it's a word with an F, fasciculations, I think, that they existed, but that there was evidence in the record at ER 214, 15, 247, 248, [00:13:41] Speaker 00: And then in supplemental excerpts at 161, 65, where Dr. Black stated that essentially the claim was that he was in pain, and that came solely from Mr. Perez's injury. [00:13:53] Speaker 00: This wasn't as though they had seen something on an MRI or an x-ray. [00:13:57] Speaker 00: All of that was negative. [00:13:59] Speaker 00: Ultimately, the substantial evidence showed that Barrick believed that after, based on the investigation, the videos, the tip that it received, the witness statements, that Mr. Perez had not been, in fact, injured and did not have a serious health condition. [00:14:19] Speaker 03: Did Barrick show the undercover video? [00:14:22] Speaker 00: They did not show the video. [00:14:23] Speaker 00: They told him about it. [00:14:25] Speaker 00: They brought him in, and they said, look, we've done an investigation. [00:14:30] Speaker 00: This is at SER 183, and said that we see that you're working on your rental properties. [00:14:39] Speaker 00: And Mr. Perez's response was, I have nothing to say. [00:14:42] Speaker 00: He didn't oppose that, didn't say anything. [00:14:45] Speaker 00: And based on that ground, they terminated his employment. [00:14:50] Speaker 00: Mr. Perez comes to this court and suggests that the court should overturn the verdict because it is, quote, against the manifest weight of the evidence and not supported by the evidence, and that there's no substantial evidence to support it. [00:15:05] Speaker 00: The problem is that he waived these issues. [00:15:09] Speaker 00: He made no post-trial motions. [00:15:13] Speaker 00: He made no pretrial motions on the serious health condition issue. [00:15:17] Speaker 00: The issue with regard to waiver is very clear, that there were several ways that Mr. Perez could have brought to the district court his argument that there was no second opinion and that this somehow meant that as a matter of law, Mr. Perez had a serious health condition. [00:15:35] Speaker 00: He could have moved for partial summary judgment. [00:15:38] Speaker 00: In fact, that's what happened in the Sims case. [00:15:40] Speaker 00: He could have moved in limine to exclude any of the evidence contradicting his claim that he had a serious health condition. [00:15:47] Speaker 00: He didn't do that. [00:15:49] Speaker 00: Most importantly, he could have moved pursuant to Rule 50A, that is a matter of law, that he had a serious health condition because there was no second opinion. [00:15:58] Speaker 00: When that didn't work and it went to the jury and he lost, he could have and should have renewed his motion pursuant to Rule 50B. [00:16:07] Speaker 00: He also could have moved for a new trial pursuant to Rule 59. [00:16:10] Speaker 00: He did none of that. [00:16:12] Speaker 00: And as a result, he has waived his argument that there is insufficient evidence. [00:16:18] Speaker 00: That is absolutely clear under the cases we cited in our brief. [00:16:22] Speaker 00: Unitherm, Nitko, Brown, and even the recent case last year [00:16:28] Speaker 00: In Dupree v. Younger, the United States Supreme Court addressed this issue and said that you can preserve purely legal issues by moving for summary judgment alone, but noted that a prudent lawyer will always raise legal issues in a post trial motion. [00:16:46] Speaker 02: He had ample opportunity to do that. [00:16:48] Speaker 02: He's trying, he's styling this as a legal argument, this argument based on Sims. [00:16:52] Speaker 02: So what's your response on this, that based on the statute, Perez says, well, listen, you know, I brought forward medical evidence. [00:16:59] Speaker 02: You need to rebut that with medical evidence. [00:17:02] Speaker 00: Sure. [00:17:02] Speaker 00: So to determine the second opinion issue, as I like to fashion it, [00:17:08] Speaker 00: I think that, which I don't think is properly brought, but assuming that it is, there are four circuit courts of appeals that have addressed this issue specifically. [00:17:17] Speaker 00: The Sixth Circuit in Novak versus Metro Health Medical Center, and that's 503, F3rd, 572. [00:17:24] Speaker 00: recognize that the language of the Family Medical Leave Act, specifically 29 USC section 2613C1, is permissive. [00:17:34] Speaker 00: That section states, in any case in which the employer has reason to doubt the validity of a certification, the employee may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health provider. [00:17:50] Speaker 00: It doesn't have to. [00:17:52] Speaker 00: And the Sixth Circuit said that it is, quote, merely permissive. [00:17:57] Speaker 00: Therefore, an employer's failure to require a second certification does not preclude the employer from contesting the employer's certification. [00:18:08] Speaker 01: I read Sims, I think, to state that although the language says may, it admits that, but it also suggested in some cases it may be such that the facts would require a second opinion. [00:18:21] Speaker 01: Is that just plain wrong? [00:18:23] Speaker 00: Well, I think that Sims, contrary to the Sixth Circuit, the Second Circuit, the Fourth Circuit, and the Eighth Circuit, interpreted May as not being permissive, and just simply got it wrong, I think, in the sense that the Fourth Circuit rejected, and that was in Rhodes v. FDIC, and that's 257, F3rd, 373, [00:18:51] Speaker 00: and again says you've got to look at the statute. [00:18:54] Speaker 00: When you're interpreting a statute, the first thing you do is you look at the plain language of the statute. [00:18:59] Speaker 00: May is permissive. [00:19:01] Speaker 00: Sims said, well, but there may be circumstances that the employer, it would be unfair to the employee to make the employee have to bring a lawsuit instead of getting a second opinion. [00:19:14] Speaker 00: And essentially, Sims [00:19:18] Speaker 00: didn't like the policy result. [00:19:21] Speaker 00: And instead of following the statute, if Congress wanted to make it mandatory, it knows the difference between may and shall. [00:19:28] Speaker 00: The A circuit came to the similar conclusion in Murphy versus FedEx National, and that's 618 F3rd, 893. [00:19:36] Speaker 00: And for what it's worth, just as interestingly, [00:19:44] Speaker 00: that the California Supreme Court in interpreting the very same language under California law in Lanark versus Sutter Health Control, and that's 43 Cal 4th 201, said it is permissive. [00:19:58] Speaker 00: There are only two cases that are cited by the other side. [00:20:02] Speaker 00: They're Simms and Schemmertlitzer, both district court cases. [00:20:06] Speaker 00: And both, I think, if you look at the facts, are outliers. [00:20:09] Speaker 00: They're both distinguishable. [00:20:10] Speaker 00: They did not involve a situation like our case. [00:20:14] Speaker 00: where the employer obtained additional information and separate evidence that called into question the veracity of the certification. [00:20:24] Speaker 00: They were not reinstatement cases the way our case is. [00:20:27] Speaker 00: Remember, in our case, Barrett gave him the leave based on the certification. [00:20:32] Speaker 00: And it was only later when they learned they received a tip that said maybe the guy is faking this. [00:20:40] Speaker 00: And then they investigated it. [00:20:41] Speaker 00: And then they said, you know, we're not going to reinstate you, and we think you've essentially committed fraud. [00:20:46] Speaker 00: And the FMLA is very clear that a person who fraudulently obtains leave is not entitled to reinstatement and not entitled to any benefits. [00:20:54] Speaker 02: I gather you deal with cases in this area maybe more than we do. [00:20:58] Speaker 02: What, in your experiences, [00:21:01] Speaker 02: employers' practices for getting a second medical evaluation? [00:21:04] Speaker 02: Is it typically done in cases like this? [00:21:06] Speaker 02: Or are there cases where employers will just say, we don't think we need that here? [00:21:09] Speaker 02: What are the considerations that go into that? [00:21:12] Speaker 00: Well, I can certainly represent to the court that I've been practicing employment law for more than 30 years. [00:21:16] Speaker 00: It is extremely unusual that an employer would ever get a second opinion. [00:21:22] Speaker 00: In most cases, what happens is exactly what Barrick did here. [00:21:26] Speaker 00: Doctor said he needs to leave. [00:21:27] Speaker 00: They give him the leave. [00:21:28] Speaker 00: And it's only when they get information that suggests an issue with regard to that leave that they, well, let's find out. [00:21:38] Speaker 02: And because I think- Rare that employers get second opinions because they usually just rely on the first opinion and are comfortable with the doctor, absent something else? [00:21:46] Speaker 00: Usually. [00:21:46] Speaker 00: Usually I think that the expense, because if you get a second opinion, it disagrees, you're going to get a third opinion. [00:21:51] Speaker 00: And in many cases, the leave isn't long enough for that to even play out. [00:21:57] Speaker 00: And so typically, what happens is a person gets a leave, and they come back. [00:22:02] Speaker 00: And then if they find out that it appears to have been fraudulent the way it was here, then they will investigate. [00:22:08] Speaker 00: That's not unusual. [00:22:09] Speaker 00: That often happens in workers' comp cases, like this one, which was also involved workers' comp. [00:22:16] Speaker 00: And then they found out they had video of the guy fixing his house. [00:22:20] Speaker 00: And so they asked him about it. [00:22:21] Speaker 00: And he said, I have nothing to say. [00:22:22] Speaker 00: And so they fired him. [00:22:24] Speaker 00: I mean, that's what happened in this case. [00:22:26] Speaker 00: That's what was presented to the jury. [00:22:28] Speaker 00: And the jury ultimately is the one that decides whether he had a serious health condition. [00:22:33] Speaker 00: And they didn't believe that he did. [00:22:35] Speaker 00: And it wasn't for [00:22:38] Speaker 00: It's certainly not at the appellate level for the court to second-guess the jury when there's been no post-trial motions. [00:22:46] Speaker 00: The district court saw the trial. [00:22:49] Speaker 00: If there had been a motion for new trial or a motion for new judgment and the district court thought something untoward had happened, that's the point where the change is supposed to be made. [00:23:00] Speaker 01: So you make a good argument on waiver here on this Sims rule issue, but it is a legal issue. [00:23:07] Speaker 01: The record seems fully developed, and it is discretionary for the court to take it up. [00:23:14] Speaker 01: Do you think we should take up this issue? [00:23:16] Speaker 00: I don't. [00:23:17] Speaker 00: I don't. [00:23:17] Speaker 00: I think that it was waived. [00:23:20] Speaker 00: And I think that to the extent this is not, frankly, the case, I think, to examine the second opinion issue when there is so much evidence coming in in court showing that the raising a serious factual question as to whether the person had whether Mr. Perez had a [00:23:43] Speaker 00: a serious health condition, that has to be decided by the jury. [00:23:46] Speaker 00: And I think that it was waived. [00:23:49] Speaker 00: I think that essentially they are saying as a matter of law, based on whatever the facts were, that he has a serious health condition. [00:23:59] Speaker 00: Because remember, the jury decided that he had no serious health condition, which cut off the rest of the inquiry. [00:24:06] Speaker 00: So there was no inquiry about no serious health condition. [00:24:10] Speaker 00: There's no family medical leave. [00:24:11] Speaker 00: It ends. [00:24:12] Speaker 00: So there was no discussion after, well, if he had a serious health condition, was there fraud indicated? [00:24:21] Speaker 00: What else happens after that? [00:24:23] Speaker 00: In this case, the jury just decided no serious health condition. [00:24:27] Speaker 00: And I don't think it's an appropriate vehicle to decide this issue. [00:24:35] Speaker 00: And we just have a few words to add about the retaliation claim. [00:24:39] Speaker 00: Mr. Perez argued, again, it was waived, but he argued that the jury instruction regarding the Nevada spotter statute, that is ER 47, should have been given. [00:24:51] Speaker 00: And it wasn't. [00:24:53] Speaker 00: And the reason that it wasn't is because there is no private right of action to enforce that statute. [00:25:00] Speaker 00: So the only remedy if somebody believes that that statute has been violated is go to the state. [00:25:06] Speaker 00: The state can get a $500 fine. [00:25:09] Speaker 00: The district court in Nunez versus Sierra Nevada Corporation, that's 677 FCEP 1471, specifically said there's no wrongful termination and breach of public policy claim for violation of that statute. [00:25:23] Speaker 00: So it's essentially irrelevant. [00:25:25] Speaker 00: I think at the end of the day, [00:25:28] Speaker 00: The Court of Appeals decisions interpreting FMLA really ought to be persuasive and controlling here that the jury's verdict ultimately is supported by the substantial evidence. [00:25:40] Speaker 00: Mr. Perez waived his legal and instructional attacks. [00:25:45] Speaker 00: Barrick terminated Mr. Perez because it believed Mr. Perez was not honest when he was claiming he was injured. [00:25:51] Speaker 00: It reasonably believed that Mr. Perez was not eligible ultimately for family medical leave and reasonably concluded that he showed a serious lack of integrity about safety issues, a failure that could have proven tragic in a working environment as dangerous as a mine. [00:26:08] Speaker 00: The court should affirm the judgment below. [00:26:14] Speaker 00: Thank you. [00:26:23] Speaker 04: You just heard a lot about what the employer reasonably believed. [00:26:29] Speaker 04: Batchelder versus America West Airlines says there is no good faith defense to a FMLA claim. [00:26:38] Speaker 04: It doesn't matter what they believe. [00:26:40] Speaker 04: It doesn't matter what their good faith was. [00:26:41] Speaker 04: All that matters is did Mr. Perez have a serious health condition? [00:26:45] Speaker 04: And unequivocally, he did. [00:26:48] Speaker 04: The doctor took him off work for more than three days. [00:26:50] Speaker 04: The doctor found that he had spasms. [00:26:52] Speaker 04: The doctor put him on flexorill. [00:26:55] Speaker 04: All of this is undisputed. [00:26:57] Speaker 04: He meets the definition. [00:26:58] Speaker 04: The jury got this completely wrong as a matter of law. [00:27:02] Speaker 04: Now, as to these waiver arguments, this was all preserved. [00:27:06] Speaker 04: These legal rulings were made by the district court. [00:27:09] Speaker 04: For example, with respect to the issue with Sims, [00:27:14] Speaker 04: At page ER074 of the record, the court, as part of its ruling with our request that you give this instruction and with our contention that there was an obligation to check with a doctor or to get a second opinion, the court said, okay, I'm going to deny it. [00:27:32] Speaker 04: I don't think there's a duty, but there is a right by the employer to ask for. [00:27:38] Speaker 04: he made the legal ruling contrary to Sims. [00:27:42] Speaker 04: That is clearly in the record. [00:27:44] Speaker 04: It's clearly preserved. [00:27:46] Speaker 04: There was another issue with the NRS 613.160. [00:27:54] Speaker 04: That was also preserved in the record. [00:27:58] Speaker 04: It's at ER page 82, 83. [00:28:02] Speaker 04: The issue there is, while there is no private right of action, [00:28:08] Speaker 04: Nevada law is still, it is unlawful to terminate someone based upon the report of a detective that goes to somebody's credibility, their veracity, whether or not they're telling the truth, which is exactly what we have here. [00:28:21] Speaker 04: It is unlawful to fire somebody for that. [00:28:24] Speaker 04: That's the law, whether there's a private right of action or not. [00:28:26] Speaker 04: There is a private right of action where we've claimed that he was fired for filing the workers' compensation claim for pursuing his rights under the Nevada Industrial Insurance Act. [00:28:36] Speaker 04: In response to that, [00:28:38] Speaker 04: They're saying, yeah, but we reasonably believe that he was a liar and a cheat and a fraud. [00:28:44] Speaker 04: They can't get away with that under 613.160. [00:28:48] Speaker 04: They didn't show him the video. [00:28:50] Speaker 04: They didn't show him the report. [00:28:52] Speaker 04: They didn't give him the name of the detective. [00:28:54] Speaker 04: They didn't tell him anything about that. [00:28:55] Speaker 04: They said, we've seen some things that makes us think that you're not telling the truth. [00:29:00] Speaker 04: They don't put him on proper notice. [00:29:02] Speaker 04: The statute requires notice and the opportunity to ask for a hearing. [00:29:05] Speaker 04: If they don't give him the notice, he doesn't know to ask for the hearing. [00:29:09] Speaker 04: All right, so NRI 613.160, that's that issue. [00:29:16] Speaker 04: Also, it is very common. [00:29:18] Speaker 02: Did you object to the admission of the videos at trial? [00:29:23] Speaker 04: Ultimately, no, I think we might have it first. [00:29:29] Speaker 04: I don't really recall right now, Your Honor, but ultimately they came in, and I don't think we objected in the final analysis. [00:29:37] Speaker 04: So, workers' comp, they get second opinions under 616C.140 all the time. [00:29:42] Speaker 04: The judge said he was going to give our instruction on that, and then he didn't. [00:29:45] Speaker 04: I think he just forgot, and then he said, well, I'm not going to. [00:29:48] Speaker 04: So all of the instructions, you know, should have been given. [00:29:52] Speaker 04: He can't fake this. [00:29:54] Speaker 04: He was examined. [00:29:55] Speaker 04: The hands were placed on him by the doctor. [00:29:57] Speaker 04: The doctor made the diagnosis. [00:29:59] Speaker 04: It doesn't matter what Mr. Perez said. [00:30:01] Speaker 04: And, you know, they had some evidence that he said, oh, well, you know, I could fake an injury. [00:30:07] Speaker 04: You can say that, but then if you actually have an injury, it doesn't mean that you're lying about the actual injury. [00:30:13] Speaker 04: That's what's going on here. [00:30:15] Speaker 02: Before you sit down, can I ask, what's at stake monetarily in the case? [00:30:17] Speaker 02: What were you asking for? [00:30:18] Speaker 04: Actually, so with FMLA, by the time this got to trial because of the pandemic, there was about five years of pay. [00:30:26] Speaker 04: He made over $100,000 a year. [00:30:28] Speaker 04: And under the FMLA, you have liquidated damages that could be an amount equal to. [00:30:32] Speaker 04: So theoretically, a million dollars. [00:30:37] Speaker 04: And so, Your Honor, this is an important case. [00:30:40] Speaker 04: This is a case to consider. [00:30:41] Speaker 04: It was not waived. [00:30:43] Speaker 04: The court made the legal ruling, and it would have been futile for us to bring post-trial motions. [00:30:48] Speaker 04: The judge was not going to change his mind. [00:30:50] Speaker 04: He made it very clear. [00:30:51] Speaker 04: If you read through the transcript, he's quite resolute that he was not going to change his mind. [00:30:56] Speaker 04: So this is teed up, and it is the issue of Sims. [00:31:00] Speaker 04: The courts that have looked at it in other places, I think they've created a situation where the FMLA is a hollow vessel. [00:31:07] Speaker 04: It can't be that it all depends on whether or not the employer [00:31:10] Speaker 04: Reasonably is that somebody is faking or not and in terms of their affirmative defense Mr. Mr. Perez, you can't say that this was unrelated to the leave It was what he what his leave what was happening with his leave why he had the leave all of that Was related to the reason that they terminated him So I don't think their affirmative defense makes it either but as counsel my friend pointed out that [00:31:36] Speaker 04: Jury never got to that because they never get past question number one, which they got wrong as a matter of law. [00:31:43] Speaker 04: Unless there are some other questions, Your Honors. [00:31:46] Speaker 03: Great. [00:31:46] Speaker 03: Thank you both for the helpful argument. [00:31:48] Speaker 03: The case has been submitted and we are recessed for the day. [00:31:55] Speaker 00: All rise.