The opinion of the court was delivered by: Stengel, J.
Margaret Barron worked for Quest Diagnostics from 2002 until she was fired in 2008. She claims Quest terminated her for using leave time to treat a serious medical condition and that this action violated the Family and Medical Leave Act. Quest has filed a motion for summary judgment. For the reasons set forth below, I will deny the motion.
Ms. Barron worked as a specimen technician for Quest Diagnostics starting in 2002. Def.'s SUF ¶ 1.*fn1 Her shift generally ran from 2:00 a.m. until 10:30 a.m. Def.'s Ex. Tab C, Barron Dep., 21. Starting as early as 2003, her performance evaluations noted that she had problems arriving for work on time. See Barron Dep. 75, 77, 87, 88, 92, 95. She received a Corrective Counseling Action ("CCA") on March 26, 2008, identifying nine times in March of 2008 she was more than ten minutes late to work, in violation of Quest's personnel policies. Def.'s SUF ¶¶ 4, 6. She received similar reports in July and August of 2008 identifying fourteen days in June and five days in July on which she was more than ten minutes late. Id. ¶ 8. The August CCA stated: "Final warning - Written: Failure to correct this deficiency or follow Company policies and/or procedures may result in further corrective action, up to and including termination, unless waived by management in some extreme circumstance(s)." Id. ¶ 9. Mrs. Barron was late eight times during August of 2008. Id. ¶ 10.
On August 28, 2008, Heather McNeill, a Human Resources Representative, sent Ms. Barron's supervisor, Scott Nicholls, an email indicating that she would be speaking to Ms. Barron about her absences but that she would "not be proceeding as of yet" in terminating Ms. Barron. Id. ¶ 11. Ms. McNeill met with Ms. Barron on September 3, 2008, and warned her that more latenessess would result in termination. Id. ¶ 12; Barron Dep. 122-23. Ms. Barron was then late six times in September of 2008. Def.'s SUF ¶ 13.
Ms. McNeill stated in a declaration submitted for this litigation that she, Mr. Nicholls, and Mr. Nicholls' supervisor, Susan Mills, agreed during a meeting on September 30, 2008, "that Ms. Barron should be terminated for her latenesses subject to obtaining approval from [Ms. McNeil's supervisor, Debra Mcghee]." Def.'s Ex. Tab A, McNeil Decl. ¶ 7. However, during Ms. Barron's Unemployment Compensation Appeal Hearing, Ms. McNeil stated that she and Mr. Nicholls made the decision to terminate Ms. Barron. Unemployment Compensation Hearing Tr., 7. Mr. Nicholls testified that at the September 30, 2008, meeting, he, Ms. McNeill and Ms. Mills discussed Ms. Barron's attendance issues. Def.'s Ex. Tab B, Nicholls Dep. 66-68. He stated, although he was "in favor" of terminating Ms. Barron, he did not leave the meeting with the impression that she would be fired the next day; rather, he understood that they would be making "a recommendation" subject to approval from Quest's human resources department. Id.
Ms. Barron missed work on October 9, 10, 11, and 14, 2008 due to asthmatic bronchitis. Def.'s SUF ¶ 28; Pl.'s SUF ¶ 38. She cancelled a doctor's appointment scheduled for Thursday, October 9, 2008 because she was too ill to travel, and went to the emergency room for treatment on Sunday, October 12, 2008. Barron Dep. 148-50. On each day she missed work, she called Quest and spoke to shift "leads" to report that she was sick and would be absent. Def.'s SUF ¶ 28. During these conversations, the leads commented they could hear in her voice that she was sick and that she sounded "awful." Barron Dep. 145, 147. Ms. Barron informed Quest representatives on the evening of October 14, 2008 or the morning of October 15, 2008 that she was still sick, that she had a doctor's note explaining her absences and that she would "shoot for the end of the week," i.e., Friday October 16, 2008 or Saturday October 17, 2008, to return to work.
Pl.'s SUF ¶ 28; Barron Dep. 181.
Ms. Barron missed her shifts on October 15, 16, and 17, 2008, due to her continued illness, and returned to work on October 18. Unemployment Compensation Hearing Tr., 13. She did not call in sick on two or three of those days, but explained that she thought she had it "covered when [she] called in on [October] 14" and said she would be missing more days. Barron Dep. 64. Erna Kolvik, a Benefits Specialist for Quest, indicated that Quest's call log shows that Ms. Barron called and left a message on October 16, 2008 and that Ms. Kolvik returned her call on October 17. Def.'s Ex. Tab X, Kolvik Decl. ¶¶ 2-3. Ms. Barron testified that she called Ms. Kolvik to discuss leave for a knee replacement surgery she planned to have in the future. Barron Dep. 190. She testified that she did speak with Ms. Kolvik on October 16, 2008. Id. at 192-93.
On Tuesday, October 14, 2008, Ms. McNeill sent Mr. Nicholls an email stating, "Debra and I talked it over... [m]y recommendation is that we move forward with terminating [Ms. Barron]. I will be in the office on Friday... so if you can put the documentation together and [sic] let's plan to meet with her then." Def.'s Ex. Tab R. Both Mr. Nicholls and his supervisor, Ms. Mills, testified that the decision to terminate Ms. Barron was based solely on her latenesses in the months before October. Def.'s Ex. Tab J, Mills Decl. at ¶ 4; Def.'s Ex. Tab. B, Nicholls Dep. at 16. Mr. Nicholls testified that on October 16, 2008, after the decision was made to fire Ms. Barron, he discovered that there were no entries on October 15 or 16, 2008 for Ms. Barron in Quest's attendance book. Def.'s SUF ¶ 19. He learned that no one had taken a call from her regarding these absences, so he considered them to be "no show/no call" days. Nicholls Dep. 70-71. Mr. Nicholls and Ms. Mills both stated that because Ms. Barron failed to call on October 15 and 16, 2008, they decided to add these incidents as additional support for her termination, which had originally been based solely on her lateness. Mills Decl. at ¶ 4; Nicholls Dep. at 15-16.
Mr. Nicholls, Ms. Mills, and Ms. McNeill prepared a CCA dated October 21, 2008, stating that Ms. Barron was terminated. Def.'s SUF ¶ 25. On the morning of October 21, Mr. Nicholls and Ms. McNeill met with Ms. Barron in Ms. McNeill's office, and informed her that she had been terminated. Id. ¶ 26.
Ms. Barron filed her complaint against Quest on March 23, 2009, alleging one count of violating the FMLA. Discovery closed on September 15, 2009. Quest filed a motion for summary judgment on October 15, 2009 and Ms. Barron filed her response on November 13, 2009.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. ...