The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Pending before the Court is Defendant's, Dollar General Corporation's, Motion for Summary Judgment as to Plaintiff's Amended Complaint. (Docket No. 23). After careful consideration of the submissions filed by both parties, Defendant's Motion for Summary Judgment (Docket No. 23) is granted in part and denied in part as set forth more fully below.
Plaintiff began his employment with Defendant on or about May 7, 2003, as a Store Manager. On June 24, 2004, Plaintiff closed the store twenty-nine (29) minutes early, because, as Plaintiff states, "he was working alone and feeling ill."
See, Docket No. 33, ¶4. Defendant's policy under "Reasons for Counseling and/or Termination" provides that closing a store early may lead to progressive counseling and/or termination. District Manager, Mary Cromer, viewed a digital video recording ("DVR") on June 26, 2004, to determine if Plaintiff closed the store early on June 24, 2004. On June 28, 2004, Mary Cromer contacted Roger Prewett, Employee Relations Coach, to inform him of the incident and discuss disciplinary actions. See, Docket No. 31, ¶3. On July 2, 2004, Michael Hegerich, Asset Protection Manager, also reviewed the DVR. On July 6, 2004, Hegerich submitted a written statement to Roger Prewett, confirming Cromer's observations. On that same day, Prewett sent an e-mail to Cromer, requesting that she submit her written statement. Cromer then submitted her written statement on Friday, July 9, 2004, detailing her observations of the DVR. On Monday, July 12, 2004, Prewett agreed with Cromer's recommendation to terminate Plaintiff's employment.
On Friday, July 9, 2004, Plaintiff again closed the store early. On this occasion, Plaintiff's wife left a message for Cromer informing her that Plaintiff had closed the store early and had been admitted to the hospital. While in the hospital on July 9, 2004, Plaintiff was diagnosed for the first time with atrial fibrillation. On July 10, 2004, Plaintiff was released from the hospital. On July 11, 2004, Plaintiff contacted the Employee Response Center and informed Defendant that he had closed the store early and had been admitted to the hospital.
According to Plaintiff, the first time that he sought FMLA leave was when his wife called Cromer on July 9, 2004, and left a message that he was admitted to the hospital. On July 14, 2004, Plaintiff applied for FMLA leave. Plaintiff was informed of his eligibility to take FMLA leave on July 15, 2004. Defendant placed Plaintiff on medical leave.
On or about July 19, 2004, Plaintiff received a release to return to work full duty. Defendant received this release document on July 21, 2004. Cromer called Plaintiff on July 23, 2004, and informed him of his termination. In this telephone conversation, Cromer informed Plaintiff that he was terminated because he closed the store early without approval on June 24, 2004.
On September 29, 2004, Plaintiff filed the instant action with this Court. On April 20, 2005, Plaintiff filed an Amended Complaint asserting substantive and retaliation violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2601, et seq., a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101, et seq., and an intentional infliction of emotional distress claim . See, Docket No. 12. Defendant has filed a Motion for Summary Judgment as to all claims. See, Docket No. 23. Plaintiff filed a Brief in Opposition. See, Docket No. 34. After leave was granted, Defendant filed a Reply Brief. See, Docket No. 38. The Motion is now ripe for review.
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting Celotex, 477 U.S. at 322.
Count I of Plaintiff's Amended Complaint is a substantive claim for a violation of Plaintiff's rights under the FMLA, as well as a claim for retaliation under the FMLA. See, Amended Complaint, ¶¶16-20. In 1993, Congress enacted the FMLA "to balance the demands of the workplace with the needs of families,...[and] to entitle [eligible] employees to take reasonable leave for [certain] medical reasons." 29 U.S.C. §2601. For example, the FMLA provides, inter alia, that "an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12 month period...(D)
[b]ecause of a serious health condition...." 29 U.S.C. §2612(a)(1)(D). A "serious health condition" is defined as an "illness, injury, impairment, or physical or mental condition" that involves: either (1) inpatient care; or (2) continuing treatment by a healthcare provider. 29 C.F.R. §825.114(a).
When leave is required for the serious health condition of the employee, the employee may take intermittent or reduced leave. 29 U.S.C. § 2612(b). After a period of qualified leave, an employee is entitled to reinstatement to the former position or an equivalent one with the same benefits and terms. 29 U.S.C. §2614(a). The FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" in the FMLA. 29 U.S.C. § 2615(a)(1). The FMLA similarly declares it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" under the FMLA. 29 U.S.C. § 2615(a)(2). Thus, an employer who interferes with an employee's exercise of rights, or retaliates for the exercise of the same, is in violation of the FMLA and the ...