The opinion of the court was delivered by: Padova, J.
Plaintiff Amy Medley brings this discrimination claim against Defendant County of Montgomery (the "County") under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), maintaining that the County told her that she could take leave pursuant to the FMLA, but then fired her for taking the leave. Presently before the Court is the County‟s Motion for Summary Judgment. For the reasons that follow, we deny the Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff has a son, Anthony, who has Asperger‟s Syndrome, developmental delay, and an anxiety disorder. (Def.‟s Statement of Material Undisputed Facts ("Def.‟s Stmt.") ¶ 11;*fn1 Pl.‟s Ex. C at 2.) Plaintiff‟s partner, Antoinette, is an adoptive parent of Anthony and shares equally in his care. (Def.‟s Stmt. ¶¶ 12-13.) Anthony has grown up with both Plaintiff and Antoinette. (Id. ¶ 24.) In addition, Plaintiff‟s sister, a stay at home mom, occasionally watches Anthony when Plaintiff and Antoinette are working. (Id. ¶¶ 14-15; Medley Dep. at 24.)
Plaintiff, a nursing assistant, was hired by the County in September 2010 to work at its Parkhouse Providence Pointe facility. (Def.‟s Stmt. ¶¶ 2-3, 6, 48.) The County‟s Absenteeism Policy requires that an employee who is unable to report for work "for whatever reason," must notify her employer "TWO hours prior to the start of [her] shift." (Id. ¶ 16; Def.‟s Ex. I.)*fn2 The Absenteeism Policy further states that "[e]xceptions will be evaluated on an individual case by case basis, given the proper documentation/verification, of why the employee was unable to notify [her employer] two hours prior to the start of [her] shift." (Def.‟s Ex. I.) The Absenteeism Policy further warns that if an employee fails to notify her employer two hours prior to the start of her scheduled shift, "it will be considered an unexcused absence, UNPAID, with 25 points assessed." (Id.) If an employee accumulates fifty points within a twelve month period, she is disciplined by counseling; at seventy five points, she receives a written warning; and at one hundred points the employee will "self terminate." (See Def.‟s Ex. H at 42.)
In November 2010, Plaintiff began missing work to care for her son. (Def.‟s Stmt. ¶¶ 11, 19.) Theresa Samuels, the Director of Quality Improvement and Staffing, spoke to Plaintiff about her absences and explained the "point system" that the County uses to evaluate its employees‟ unexcused absences. (Id. ¶¶ 19-21, 61.) Plaintiff was not always assigned points under the Absenteeism Policy when she failed to notify her employer two hours prior to missing work, and a few times the points that she had been assigned were removed after Plaintiff discussed the circumstances of her absence with Samuels. (Id. ¶ 25.) During Plaintiff‟s employment with the County, Plaintiff also met with Human Resources Manager Marcia Lucas a few times to discuss her absences. (Id. ¶¶ 48, 50.)
On February 4, 2011, Plaintiff was issued an "Employee Absenteeism
and/or Tardiness Report" ("Report"), which indicates that she was
allotted fifty points for absences on January 27, 2011, and February
1, 2011. (Def.‟s Ex. H at 42.) This Report designates Plaintiff‟s
disciplinary action as "counseling." (Id.) On March 2, 2011, Plaintiff
was issued a second Report, which allotted twenty five additional
points for an absence on March 1, 2011, for a total of seventy five
points. (Id. at 43.) The second Report designates Plaintiff‟s
disciplinary action as a written warning. (Id.) The second Report also
contains a handwritten note that states: "the nursing attendance
policy was reviewed again when Amy‟s ILOA went into effect but given
another copy on 3/5/11. Extra fringe time has been granted to Amy
several times when she has called in after 6:30 a.m."*fn3
(Id.) The section under "Employee Comment" contains a
handwritten note that reads: "Spoke with Maria [Lucas] in regards to
my sons[‟]s FMLA, his psychiatrist is updating his form." (Id.)
A meeting occurred on March 23, 2011, in which Samuels, Lucas, and Plaintiff discussed Plaintiff‟s absences from work. (Id. at 44.) During the meeting, Plaintiff "communicated that her son continues to have concerns with anxiety but is improving." (Id.) The meeting was recorded in an "Anecdotal Note,"*fn4 which was signed by Plaintiff on March 25, 2011, and which indicates that Plaintiff was told that she must provide a note confirming that her son was seen by a physician on each day she calls out, because her unscheduled "call outs" were taken on days adjacent to previously scheduled time off. (Id.) The "Anecdotal Note" also states that twenty five points incurred as a result of Plaintiff‟s absence on March 4, 2011, had been excused but that Plaintiff still had seventy five total points as of March 23, 2011. (Id.)
On April 8, 2011, Plaintiff was issued a third Report, which indicates that she had been allotted twenty five points for an absence on April 7, 2011. (Id. at 45.) Plaintiff‟s disciplinary action was designated as a written warning, and the Report contains a handwritten note that states that this was Plaintiff‟s "first and final" written warning. (Id.) The Report also indicates that Plaintiff had been allotted a total of one hundred points, but does not contain a recommendation for termination as the County‟s Absenteeism Policy would appear to require. (Id.)
Plaintiff and County EEO Officer Beverly Jackson met on April 19, 2011. (Def.‟s Stmt. ¶ 36, 46.) Plaintiff testified that they discussed the FMLA, the "points system," and the process of filing a grievance. (Medley Dep. at 40-41.) Plaintiff claims that Jackson explained that Plaintiff could file a grievance to contest her "points" for unscheduled absences, but that "it is not going to change the policy [and] [i]t is not going to change that fact that [Plaintiff] didn‟t call out within the two hours and that is the rule." (Id. at 42.) Plaintiff testified that she wanted to file a grievance, and that Jackson agreed to provide and explain the appropriate paperwork and procedures sometime during the following week. (Id. at 48.) Plaintiff was fired the next day, April 20, 2011. (Id.)
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it "might affect the outcome of the case under the governing law." Id.
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular issue at trial, the movant‟s initial Celotex burden can be met simply by "pointing out to the district court" that "there is an absence of evidence to support the nonmoving party‟s case." Id. at 325. After the moving party has met its initial burden, the adverse party‟s response "must support the assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials [that the moving party has cited] do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c)(1). Summary judgment is ...