The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
Plaintiff Aqila Thomas ("Plaintiff" or "Thomas"), a nurse practitioner and former employee of Defendant Bala Nursing & Retirement Center, Limited Partnership ("Defendant" or "Bala"), brought this employment discrimination action against Bala on September 14, 2011. Thomas seeks equitable and monetary relief relating to her termination by asserting violations of the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA").
Presently before the Court is Bala's Motion for Summary Judgment ("Def. Mot.") (Doc. No. 34) and accompanying Memorandum ("Def. Mem.") (Doc. No. 35), Plaintiff's Counter Statement of Material and Disputed Facts ("Pl. Statement") and accompanying Memorandum of Law ("Pl. Mem.") (Doc. No. 36) with attached deposition testimony and other exhibits ("Pl. Statement Ex."), and Defendant's reply ("Def. Reply") (Doc. No. 40). By this motion, Defendant asserts that on the record before us there are no genuine issues of material fact and that Bala is "entitled to judgment as a matter of law" on all of its claims.
Upon consideration of that record, and the extensive oral argument held on June 20, 2012 ("Oral Arg.") (Doc. No. 42), and with full appreciation of the well constructed arguments set out by Defendant, we conclude, based principally upon the deposition testimony of Plaintiff, that there are indeed genuine issues of material fact. Accordingly, we deny Defendant's motion.
1. Plaintiff's Employment History
It is uncontested that Plaintiff was hired by Defendant in 2007 as a Licensed Nurse Practitioner ("LPN") and charge nurse. (Pl. Statement Ex. A at 16, 23.)*fn1 In this capacity, her duties included administering medication, ensuring resident safety, directing the certified nursing assistants, doing treatments and assessments, and resolving problems with residents' families. (Id. Ex. B at 16-17.)*fn2 On February 22, 2011, Plaintiff was terminated by Defendant. (Id. Ex. S.)*fn3 Following her termination, on March 4, 2011, she participated in a grievance hearing held regarding her termination. (Thomas Dep. at 142-143.)
Plaintiff was directly supervised by Brenda Williams from November 29, 2010 until her termination. (Williams Dep. at 14.) Ms. Williams reported to Judith Sherman, the Director of Nursing ("DON"), and Connie Singletary, the Assistant Director of Nursing ("ADON"). (Id. at Ex. C at 17-18, Ex. D at 14-15.)*fn4 Marjorie Zeigler was the Nursing Home Administrator. (Pl. Statement Ex. E at 12.)*fn5
Both parties agree that tardiness factored into Bala's decision to terminate Thomas.*fn6 (Term. Notice.) Indeed, the question of tardiness is central to this case. At the time of Thomas's hire, Bala had in place a tardiness policy that allowed for a seven minute "grace period," by which an employee would not be counted as tardy so long as she arrived within seven minutes of her scheduled start time. (Ziegler Dep. at 19.) Bala asserts that it instituted a new tardiness policy in April 2010. (Id.) This new policy effectively eliminated the seven minute grace period. (Id.) Bala contends that notices were placed around the office regarding the change. (Id. at 20; Sherman Dep. at 92.) Plaintiff, claiming to rely upon an office memorandum, asserts that the grace period was not removed until January 5, 2011, just six weeks prior to her termination. (Pl. Statement Ex. U) (Memorandum stating "[t]his is a reminder to all Employees of Bala Nursing & Retirement Center's Attendance policy.") (emphasis added). Thomas contends that there is a factual dispute as to when the new tardiness policy was instituted.
It is uncontested that Plaintiff often arrived late for her shift, which began at 11:00 p.m.
(Thomas Dep. at 22), although her tardiness was usually for fewer than ten minutes. (Id. at 84-89.) The reason for this tardiness is highly contested. Defendant asserts that Plaintiff has offered no plausible justifiable excuse. (Id. at 42-43.) Plaintiff asserts, to the contrary, that every tardy she received was due to her anemia. (Id. at 35.)
The parties agree that Plaintiff was diagnosed with iron deficiency anemia in August of 2008. (Id. Ex. W.) From that date through February 24, 2011, she was treated for the anemia by Dr. In-grid Kohut, a hemotologist. (Thomas Dep. at 25.) Dr. Kohut administered intravenous ("IV") iron infusions to Plaintiff on an outpatient basis some thirteen times between April 23, 2008, and February 24, 2011. (Pl. Statement Ex. I at 13.)*fn7
Plaintiff contends that her anemia affected her ability to stand for a long period of time, occasionally limited her ability to think or concentrate, caused shortness of breath when she would walk fast or run, and caused her to sleep up to twelve hours per day. (Thomas Dep. at 68, 71, 187.) Dr. Kohut has testified that a person with iron deficiency anemia could suffer from fatigue. (Kohut Dep. at 36.) Defendant in turn highlights Dr. Kohut's testimony that Plaintiff would only get tired towards the end of the day. (Id. at 39.)
Plaintiff asserts that in her last few months of employment with Bala, her anemia-related fatigue worsened. (Thomas Dep. at 70.) Bala refutes this assertion, noting that Plaintiff had scheduled no appointments with Dr. Kohut during this time period. (Def. Reply at 15-16.) Further, Bala argues that Plaintiff worked multiple double shifts and overtimes during the relevant time period, which would not typically be indicative of extreme fatigue. (Thomas Dep. at 16.)
In December 2010, Plaintiff requested and received a transfer to the night shift due to the fact that she had more seniority than other applicants. (See, e.g., Sherman Dep. at 27-28.) Plaintiff asserts that this was and should be considered an "accommodation" under the ADA and was due to the fatigue brought on by her anemia. (Thomas Dep. at 30-31.) Defendant contends that there is no evidence to support Plaintiff's assertion that this request was made seeking an "accommodation," but rather that Plaintiff simply signed up for a different shift change that was listed for all employees, and that the only reason she requested the change was because the work is less strenuous. (Id. at 68-69.)
It is uncontested that February 24, 2011, after being terminated, Plaintiff complained to Dr. Kohut that she was having difficulty performing her job duties. (Kohut Dep. at 29.) Defendant argues, however, that Plaintiff had not complained of fatigue to Dr. Kohut between her April 2010 treatment and her February 2011 termination. (Id. at 26-31.)
3. Defendant's Notice of Plaintiff's Condition
Thomas alleges that she repeatedly informed Ms. Williams, Ms. Sherman, and Ms. Singletary that she had anemia. (Thomas Dep. at 28-29, 66-67, 195-199.) This is a highly disputed fact as Defendant states that Plaintiff never informed any of her supervisors of this condition. (Williams Dep. at 24; Singletary Dep. at 34-35; Sherman Dep. at 22.)
The parties agree that Bala maintains a written policy for employee leave under the FMLA. (Pl. Statement Ex. G.) Under this policy, employees can request leave from supervisors, the administrator, or the DON. (Sherman Dep. at 12.) Plaintiff alleges that she told Ms. Sherman about her anemia, and Ms. Sherman did not inform her of her FMLA rights. (Thomas Dep. at 198.) In December 2010, however, Plaintiff requested and received FMLA paperwork from Bala's Human Resources Department. (Id. at 124.)
The parties also agree that from January 3 to 12, 2011, Plaintiff was on medical leave.*fn8
(Thomas Dep. at 36, 129.) She asserts that she was on leave due to the flu and her anemia. (Id.) Defendant, however, asserts that the leave was strictly for the flu, was unrelated to Plaintiff's anemia, and therefore not FMLA qualified. (Id. at 58, 122.) Plaintiff testified that during this leave, she informed Ms. Sherman during a telephone call that she would provide the FMLA paperwork when she returned to work on January 13, 2011. (Id. at 58.) Although this is not directly articulated, Defendant seems to state that there was no discussion about the FMLA while Plaintiff was on leave. It is uncontested, however, that the FMLA paperwork was signed by Dr. Kohut's office on January 7, 2011. (Pl. Statement Ex. M.)*fn9
Plaintiff alleges that she placed the FMLA Certification form in Ms. Sherman's mailbox in the reception area at Bala when she returned to work on January 13, 2011. (Thomas Dep. at 129-130.) Ms. Sherman testified that she checks her mailbox at least a couple of times per day, that no FMLA forms were found in the mailbox, and that the first time they were seen by anyone at Bala was at the March 4, 2011 grievance hearing. (Sherman Dep. at 66-73; Ziegler Dep. at 62-64.)Furthermore, Defendant argues that the FMLA paperwork asked only for intermittent leave in connection with IV treatments Plaintiff required for her anemia, and that it made no mention of a need for tardiness or any other such accommodation. (FMLA Cert.) Plaintiff's counsel concedes that the forms ask only for intermittent leave, but asserts that intermittent leave includes arriving to work late. (Oral Arg.)
Plaintiff further testified that in January 2011, she requested from Ms. Sherman and staffing coordinator Lamia Johnson that her hours be reduced from 80 hours to 64 hours per week, and that this request was denied. (Thomas Dep. at 48, 50-51, 172-173, 181.) Plaintiff also asserts that she verbally requested medical leave in January 2011, due to her anemia, but Ms. Sherman denied that request and told her that she would have to wait until April. (Id. at 30, 52-55, 181-182.)These contested assertions are supported principally by Plaintiff's own testimony.
Prior to terminating Plaintiff, Ms. Sherman, Ms. Singletary, and Ms. Ziegler reviewed Plaintiff's personnel file, which Plaintiff contends typically would contain doctor's notes and FMLA paperwork. (Id. at 113-114.) Plaintiff also contends that absences were taken into account when determining whether to terminate her, and that the decision was based upon more than tardiness.*fn10
(Term. Notice.) Finally, Plaintiff asserts that her job performance was consistently compromised by the fatigue she experienced as a result of her anemia, which caused her to feel more tired than would the average individual. (Kohut Dep. at 38-39.) Defendant states, however, that until the March grievance hearing after her termination, only Plaintiff's tardiness was reviewed, and that Bala had no knowledge of her FMLA paperwork. (Ziegler Dep. at 62, 64; Sherman Dep. at 66-68; Singletary Dep. at 62.) Defendant also makes it clear that Plaintiff had no performance related issues and it was only tardiness that led to her termination. (Def. Reply at 7.)
To enforce its tardiness policy, Bala maintains a process of gradual
discipline that is invoked when an employee is tardy three times
within a pay period. (Thomas Dep. at 23.) Plaintiff asserts that she
received her first disciplinary sanction, a verbal counseling, on
August 5, 2010. (Pl. Statement Ex. N.) Defendant asserts that the
verbal warning occurred in July 2010. (Thomas Dep. at 75.) It is
uncontested that the second step in the disciplinary process for
tardiness, a written counseling, was given to Plaintiff on December 6,
2010. (Pl. Statement Ex. O.) Despite its policy, Plaintiff was given a
second written warning for tardiness on January 6, 2011.*fn11
(Id. at Ex. P.) On
January 25, 2011, the third step in the disciplinary process, a
one-day unpaid suspension, was issued to Plaintiff. (Id. Ex.
Defendant alleges that upon receipt of these disciplinary actions, Plaintiff never asked her supervisors to excuse her lateness due to her anemia, nor did she submit medical documents indicating that it should be excused.*fn12 (Thomas Dep. at 29, 47.) Defendant claims that Plaintiff refused to speak to Ms. Sherman about any medical problems that may have been causing her to be late. (Id. at 80-81; Singletary Dep. at 31-32; Sherman Dep. at 40-41.) Thomas, on the other hand, alleges that she repeatedly informed Ms. Williams, Ms. Sherman, and Ms. Singletary that she had anemia, and that she was late to work as a result. (Thomas Dep. at 28-29, 66-67, 195-199.) Plaintiff also asserts that she specifically requested to be permitted to arrive late to work occasionally ...