The opinion of the court was delivered by: Joyner, J.
Before this Court is Defendant Owens-Brockway Glass Container Inc.'s Motion for Summary Judgment (Doc. No. 18) and Plaintiff Anthony Modaffare's Response in Opposition (Doc. No. 21). For the reasons set forth, we will deny Defendant's Motion in part and grant it in part.
Plaintiff, Anthony Modaffare, was employed as an automatic palletizer attendant by Defendant, Owens-Brockway Glass Container Inc., from May 2005 until November 2007. During the course of his employment, Plaintiff was disciplined multiple times for problems with attendance. He also took five leaves of absence to recover from a workplace injury and deal with alleged psychological trauma caused by his failing marriage.
In August 2005, Plaintiff was absent from work and admitted that he had altered a letter from his doctor in an attempt to justify his absence. After this transgression, Defendant decided to place Plaintiff on a Last Chance Agreement. The Last Chance Agreement stated that Plaintiff: must maintain a perfect attendance record from September 1, 2007 to August 31, 2009. If he is absent without authorization, or is guilty of work related misconduct, or breach of plant rules[,] his employment may be terminated by the Employer, without the recourse of the grievance procedure.
Pl. Ex. C. Less than one month after signing the Last Chance Agreement, Plaintiff violated its terms by arriving late for a shift because his car allegedly ran out of gas. While Defendant had the right to terminate Plaintiff at that time, it chose not to do so.
On November 16, 2007, Plaintiff requested a leave partly for medical reasons but was told by Defendant that he was not allowed to take the leave and had to report to work. An hour into his shift on November 18, Plaintiff requested leave so he could go to the emergency room and was allowed to go. The following day, Plaintiff failed to show up for work, after which Defendant suspended him pending termination. On November 20, Plaintiff was called in for a meeting with Defendant at which point Defendant notified Plaintiff that he was being terminated for violating the Last Chance Agreement. At the meeting, Plaintiff learned that the notice from his emergency room doctor said that he would be able to return to work on November 19, not November 20, as Plaintiff had believed. In an effort to save his job, Plaintiff went to his doctor and received a letter that stated that the doctor had made a mistake in his original note and that Plaintiff was not able to return to work until November 20. Despite this letter, Defendant upheld its decision to terminate Plaintiff.
Plaintiff has charged Defendant with retaliating against him for engaging in protected activity under the Family Medical Leave Act (FMLA), interfering with his rights under the FMLA, and wrongful termination.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).
In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). However, there must be more than a "mere scintilla" of evidence in support of the non-moving party's position to survive the summary judgment stage. Anderson, 477 U.S. at 252. "'[A]n inference based on speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.'" Koltonuk v. Borough of Laureldale, 443 F. Supp. 2d 685, 691 (E.D. Pa. 2006) (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990)).
Count I: Retaliation for engaging in activity protected under the FMLA
In order to establish a prima facie case of retaliation for engaging in activity protected under the FMLA, Plaintiff must show that: (1) he took an FMLA leave, (2) he suffered an adverse employment decision, and (3) the adverse decision was causally related to his leave. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). In order to be eligible to take an FMLA leave, an employee must work for an employer with at least 50 employees within a 75-mile radius and the employee must have been employed for 12 months and for at least 1,250 hours of service during the previous 12-month period. 29 U.S.C. §2611(2)(A)(ii); 29 U.S.C. §2611(2)(B)(ii). It is undisputed that at the time of the leave at issue, November 19, 2007, Plaintiff was eligible under this standard. An eligible employee is entitled to leave "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 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 -- (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. §2611 (11). Considering this definition in the light most favorable to Plaintiff, his medical condition could qualify as a serious health condition because he received treatment from a psychologist for adjustment disorder, anxiety, and depression from June of 2007 through late November of 2007. (Francis Dep. at 8, 16, 22, 26.) See Magruda v. Belle Vernon Area School Dist., No. 06-0995, 2009 U.S. Dist. LEXIS 13761, at *36, 2009 WL 440386 (W.D. Pa. Feb. 23, 2009) (finding that whether adjustment disorders, anxiety, and depression are serious health conditions are issues of material fact that survive summary judgment); ...