The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 9.) For the following reasons, Defendant's Motion will be granted in part and denied in part.
On June 6, 2008, Suzette Whitman ("Plaintiff") filed this action claiming that her employer Proconex, Inc. ("Defendant"), violated her rights under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq. The following facts were developed during the course of discovery.*fn1
Plaintiff has three minor daughters. (Whitman Dep. at 10, 16.) The youngest daughter, Jessica, was diagnosed at birth with Down Syndrome. (Id. at 16.) She has pulmonary disease, as a result of having respiratory syncytial virus and pneumonia as an infant, and has had several bouts of pneumonia. (Id. at 48, 179-80.) When Plaintiff receives calls from Jessica's school nurse, the calls are primarily related to breathing problems. (Id. at 207.) Jessica also has behavioral issues and problems with aggression. (Id. at 48.) She is very hyper and compulsive, and needs to be watched constantly. (Id. at 205.) She receives "wraparound care," which includes an aide who comes to the home as well as a full-time aide at school. (Id. at 48-50.) Plaintiff takes her daughter to a psychologist, a psychiatrist, and a pediatric neurologist. (Id. at 48-50, 206.)
From approximately 1989 to 1996, Plaintiff worked for C.B. Ives and then for Proconex, Inc. (hereinafter, "Defendant"), following its acquisition of C.B. Ives. (Id. at 12.) In 1996, Plaintiff left Defendant and worked for another company named Kinetics. (Id.) Plaintiff returned to Defendant's employ on August 15, 2005, and worked as a sales associate. (Id.at 27; Doc. No. 9, Ex. W-2.) Upon her return, Plaintiff received some training and she received an employee handbook. (Whitman Dep. at 30; Doc. No. 9, Ex. W-3.) The handbook included Defendant's FMLA policy. (Whitman Dep. at 46.) As a sales associate on the General Territory Team ("GTT"), Plaintiff worked with four applications engineers ("AEs") as well as several outside sales associates. (Id. at 30-31.) Plaintiff reported to Phil Russo, Defendant's manager of inside sales. (Id. at 33.) Plaintiff's responsibilities included supporting the AEs and outside sales associates by answering telephones, expediting and pulling and typing orders, pricing parts, calling customers, and filing. (Id. at 35.)
In April 2006, Plaintiff met with Russo and Lynnda Petrucelli, Defendant's human resources manager, regarding attendance issues.*fn2 (Id. at 35; Doc. No. 9, Ex. W-5; see also Doc. No. 9, Ex. W-4 (2006 Attendance Record).) The meeting was called because Plaintiff had been absent to care for her middle daughter, who had been diagnosed with mononucleosis and had missed approximately four weeks of school. (Whitman Dep. at 35.) Plaintiff's husband, from whom she is separated, would not watch his daughter. (Id. at 38-39.) Plaintiff took both sick days and paid vacation days to care for her daughter. (Id. at 42-43; see also Doc. No. 9, Ex. W-4.) During the meeting, Russo and Petrucelli asked Plaintiff whether anyone else could watch her daughters when they became sick. (Whitman Dep. at 39-40.) Plaintiff informed them that there was no one who could assist her in watching her children when they were ill. (Id. at 41.) Russo and Petrucelli told Plaintiff to provide a doctor's certification of illness for days missed under Defendant's sick leave policy. (Id. at 41; Doc. No. 9, Ex. W-5.) They also warned that a "continuation of excessive absenteeism can lead to termination." (Doc. No. 9, Ex. W-5.)
As of January 1, 2007, Russo was fully aware of Jessica's condition. (Whitman Dep. at 205, 207-08; Russo Dep. at 11, 32.) Plaintiff had informed Russo about Jessica's behavior, as well as about her hospital stays. (Whitman Dep. at 204.) Jessica had also visited the office, and Russo had met her. (Id.) Plaintiff was familiar with the FMLA because she had taken FMLA leave in 2001, while working at Kinetics, when Jessica needed a tracheotomy and open-heart surgery. (Id. at 16.) However, Plaintiff did not realize, and was not told by Defendant, that an employee could use FMLA day by day. (Id. at 46, 55.)
In April 2007, Plaintiff had another meeting with Russo about attendance issues. (Id. at 61; see also Doc. No. 9, Ex. W-6 (2007 Absentee Record).) The meeting was preceded by an email exchange between Plaintiff and Russo. (Whitman Dep. at 58; Doc. No. 9, Ex. W-7.) On April 23, 2007, Russo sent Plaintiff an email stating:
You have been missing quite a few days lately. Is everything alright? I realize that some of the absences are a bit out of your control, but the strain it is placing on the GTT is causing stress for all involved. I don't even want to ask because I think I know the answer, but how is your desk load right now? I [sic] has to be out of control. We . . . need to have a discussion when you are in next. (Doc. No. 9, Ex. W-7.) That April, Plaintiff had taken four sick days and two and one-half vacation days as a result of her middle daughter's double ear infection and wheezing, Jessica's bronchitis, and Plaintiff's "stomach bug." (Whitman Dep. at 58; Doc. No. 9, Ex. W-6; id. Ex. W-7.) Work backed-up at Plaintiff's desk as a result of these absences. (Whitman Dep. at 59.) Plaintiff attended a meeting with Russo and Jim Baker, Lead AE, on April 25, 2007. (Doc. No. 9, Ex. W-8.) Russo summarized the meeting in an email memorandum sent on April 26, 2007. (Id.) Russo stated that the meeting was called because [Plaintiff] has missed a high percentage of days over the last two weeks (approximately 5.5 days out of the last 10 working days) because of various family or personal illnesses. This missed time is causing much strain on the work flow of the GTT, and customers are being effected [sic] in a negative way. (Id.) Among the topics discussed at the meeting was the possibility of Plaintiff making up missed work so that she could work full forty-hour work-weeks. (Id.) Also discussed was the requirement that Plaintiff submit doctor's notes from her recent absences or those absences would be charged as vacation days or absences without pay. (Id.) Plaintiff was very limited in her ability to make-up lost work-time, however, because of her childcare obligations. (Whitman Dep. at 62-64.) Defendant never charged Plaintiff's absences to her vacation account. (Id. at 68.) Rather, Plaintiff often opted to use vacation days. (Id.) She generally used vacation time for doctor's visits and appointments for Jessica with the psychologist or psychiatrist and neurologist. (Id. at 68-69.) Plaintiff designated many of her absences as vacation days, even though they were taken to care for her children when they were ill, because it would reduce the overall amount of time that she was out of the office. (Id. at 203.) None of Plaintiff's supervisors ever disputed how Plaintiff designated her absences. (Id. at 209.)
During 2007, there were complaints about Plaintiff's work performance.*fn3 (Whitman Dep. at 78-80, 94.) Alan Ehrlich, an AE on Plaintiff's team, forwarded or generated many of the complaints. (See Doc. No. 9, Ex. W-9; id., Ex. W-14; id., Ex. W-15; id., Ex. W-16; id., Ex. W-17; id., Ex. W-19; id., Ex. W-20.) Ehrlich had been asked by Petrucelli to keep track of all complaints and issues regarding Plaintiff. (See id. Ex. W-14.) Ehrlich was himself the subject of work-performance complaints. (Whitman Dep. at 99, 128; see also Doc. No. 9, Ex. W-26.) In addition, on July 25, 2007, Mark Thurwanger, an AE manager, recommended to Russo that Defendant "cut bait and get rid of her." (Doc. No. 9, Ex. W-12.) He noted time-wasting concerns: "She's talking about time yet I saw here [sic] talking with the usual suspects many times today." (Id.) In an email to Russo with the subject line "Efficiency," Baker documented thirty-six minutes of personal phone use by Plaintiff in one morning. (Id., Ex. W-19.) On October 31, 2007, Thurwanger corresponded with Russo regarding complaints about the GTT:
[T]he biggest problem is the fact that [Plaintiff] is only working about 30 hours a week (if that) for a job that requires 40. Although I feel for her personal situation, we have to take a firm stance here and advise her that 40 hours a week is required and expected. (Doc. No. 9, Ex. W-26.) The complaints regarding Plaintiff's performance mainly highlighted her poor response time or failure to respond to customer inquiries. (See Doc. No. 9, Ex. W-21; id., Ex. W-22; id., Ex. W-25.)
In July 2007, Plaintiff was chastised for wearing inappropriate clothes to work. (Whitman Dep. at 80; Doc. No. 9, Ex. W-10.) At a meeting on July 24, 2007, Petrucelli told Plaintiff that her blouses were too low-cut. (Whitman Dep. at 80.) Plaintiff was also advised to watch her use of profanity in the workplace. (Id. at 81.) On August 3, 2007, Thuranger advised Plaintiff that she was in violation of the dress code and gave her the opportunity to go home and change and return to work, or to take a vacation day. (Id. at 84; Doc. No. 9, Ex. W-13.) Plaintiff opted to take a vacation day and left work at 9:15 a.m. (Doc. No. 9, Ex. W-13.) She felt that she was being singled-out. (Whitman Dep. at 89.) Plaintiff subsequently had a discussion with Bob Batten, Defendant's sales manager of valves, about the dress code. (Id. at 90-91.)
Plaintiff took personal days on November 1 and 2, 2007, when Social Services became involved with her family over a concern regarding Plaintiff's youngest daughter. (Id. at 145-47; see also Doc. No. 9, Ex. W-6.) Plaintiff took a sick day on October 30, 2007, as well as half of a vacation day on November 5, 2007. (Doc. No. 9, Ex. W-6.) On November 6, 2007, Ernie James, a customer, complained that Plaintiff was not responding to a request that he had made. (See Doc. No. 9, Ex. W-25.) Plaintiff had sent James incorrect information on October 25, 2007. (Id.) James requested an update on October 31, 2007. (Id.) James emailed Plaintiff's teammates on November 6, 2007, when he still had not heard from Plaintiff: "[T]his is like pulling teeth. I am STILL waiting for the PMI cert for FV-14735. The one [Plaintiff] sent me on October 25th was wrong. I asked her last Wednesday politely how this is going . . . no response. WTF?" (Id.) Bill Cook, a GTT teammate, informed James that Plaintiff had been absent for several days. (Id.) The email chain was then forwarded to Russo and Batten. (Id.)
On Tuesday, November 27, 2007, Plaintiff received a call during lunchtime from Jessica's school that Jessica was sick and Plaintiff needed to pick her up. (Whitman Dep. at 162-63.) Jessica was having breathing problems, so Plaintiff took her to DuPont Hospital in Wilmington, Delaware, where she was admitted as a patient after doctors diagnosed her with bacterial pneumonia. (Id. at 163.) Plaintiff left a message for Russo telling him that she had to leave work and pick up Jessica because Jessica was not breathing right. (Id. at 163-64.) After 5:00 p.m. that day, Plaintiff called Baker on his cell phone and told him that she had taken Jessica to the hospital, that Jessica did not look good, and that she would keep him apprised of the situation. (Id. at 165.) On Wednesday, November 28, Plaintiff spoke with Russo and told him that she could not go into work that day because Jessica was in the hospital. (Id. at 166-68.) Plaintiff was also sick with bronchitis on this day, although she did not visit a doctor. (Id. 166-67.) On Thursday, November 29, Plaintiff left a message for Russo telling him that Jessica was still in the hospital, but would probably be discharged at some point in the afternoon. (Id. 169-70.) Plaintiff also spoke with Baker and told him the same thing, and that Jessica was off the oxygen and doctors needed to decide what antibiotics she would continue taking at home. (Id.) FMLA leave was never discussed. (Id. at 170.) Jessica was discharged from the hospital at about 1:30 p.m. or 2:00 p.m. on Thursday, November 29. (Id. at 171.) Plaintiff left a message for either Russo or Baker telling him that she would not be able to return to work until Monday, December 3, because Jessica was not permitted to go back to school on Friday. (Id.)
Meanwhile, on Wednesday, November 28, Batten held a meeting with outside sales engineers. (Batten Dep. at 13-17.) Russo was present as well. (Id. at 17.) Two of the salespeople at the meeting, Colin Bozzarello and Lee Murter, complained that Plaintiff's performance was affecting their customer base. (Id. at 14-15.) The next day, Thursday, November 29, John Otte, the vice president of sales, and Petrucelli held an unscheduled meeting with Batten in his office. (Batten Dep. at 17-18.) Otte claims to have decided to terminate Plaintiff's employment before this meeting. (Otte Dep. at 10.) Specifically, Otte claims to have made the decision in early November 2007, and to have consulted John Weekley, Defendant's chief executive officer. (Id. at 10-12.) At the meeting, Otte, Petrucelli, and Batten discussed complaints about Plaintiff's performance, as well as customer frustration. (Batten Dep. at 28.) Otte decided to terminate Plaintiff's employment. (Id. at 10.) Petrucelli and Batten were in agreement. (Id.)
Phil Russo was not involved in the decision to terminate Plaintiff. (Russo Dep. at 16.) On the day that the decision to terminate Plaintiff was finalized, Batten informed Russo of the termination decision and directed that he and Petrucelli make arrangements to terminate Plaintiff's employment. (Batten Dep. at 10; Russo Dep. at 17.) Petrucelli told Russo that they would tell Plaintiff that she was being let go on the next working day that she was in the office. (Russo Dep. at 21.)
On Monday, December 3, 2007, Plaintiff reported to work. (Whitman Dep. at 172.) Within ten minutes of her arrival, she was told to attend a meeting in Petrucelli's office. (Id.) Petrucelli and Russo were present. (Id. at 173.) Petrucelli informed Plaintiff that she was being terminated for "lack of performance." (Id.) Plaintiff was shocked and did not say anything. (Id.) Russo did not speak during the meeting. (Id. at 174.) Plaintiff was permitted to pick up her jacket and purse and was then escorted out of the building. (Id. at 175.) Her personal belongings were returned to her two weeks later. (Id.) Defendant held a meeting after Plaintiff's termination to announce its decision to terminate her employment. (Id. at 180-81.) Russo told the employees that Plaintiff was terminated for "poor performance." (Id. at 181.)
Plaintiff claims that "Defendant terminated [Plaintiff] because she took an FMLA-covered leave to care for the serious medical condition of her daughter" (Doc. No. 1 ¶ 40); that "Defendant violated FMLA by failing to put [Plaintiff] on notice of her FMLA rights despite [D]efendant's awareness that she was entitled to same" (id. ¶ 41), and that "[a]lternatively and/or additionally, [D]efendant's termination of [Plaintiff] in December 2007 was made in retaliation for taking the aforementioned leave from work, in violation of FMLA" (id. ¶ 42).
Discovery closed on October 10, 2008. (See Doc. No. 8.) Defendant filed a Motion for Summary Judgment on November 21, 2008. (See Doc. No. 9.) Plaintiff filed her response on December 5, 2008. (See Doc. No. 11.) On December 10, 2008, Plaintiff filed a Motion for Leave to File Amended Complaint. (See Doc. No. 12.) Defendant objected to Plaintiff's request as untimely. (See Doc. No. 13.) Plaintiff's Motion was denied. (See Doc. No. 14.) On December 16, 2008, Defendant, by letter, submitted an informal motion to compel discovery. (See Letter from Larry J. Rappoport, Esq., Defense Counsel, to the Court (Dec. 16, 2008).) Plaintiff objected to Defendant's ...