The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court are the summary judgment motions of defendant Bluecross Blueshield of Tennessee, Inc. ("Defendant") (Court File No. 16) and plaintiff Kimberly Culpepper ("Plaintiff") (Court File No. 18). In considering these motions, the Court also considers the supporting memorandums, responses, and replies (Court File Nos. 17, 19, 20, 21, 22). In her claim, Plaintiff alleges Defendant's termination of her employment in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615.
In accordance with the following analysis, this Court will GRANT Defendant's motion for summary judgment (Court File No. 16), and DENY Plaintiff's motion for summary judgment (Court File No. 18).
Plaintiff was an employee of Defendant, working in the mail room (Court File No. 19, p. 1). Plaintiff was being treated by Dr. Barry W. Donesky ("Dr. Donesky"), a fertility doctor, because she and her husband wanted to have a child (id., p. 2).
On February 8, 2006, Plaintiff received a saline-infused ultrasound (Court File No. 18, Attachment 2, pp. 22-23). She then underwent stimulation procedures on February 14 and 16 (id., p. 25); had blood work and an ultrasound done on February 17 (id., p. 26); had more blood work done on February 18 (id.); had an egg retrieval procedure on February 19 (id., p. 27); and had the fertilized eggs implanted on February 24, 2006 (id.). On March 6, 2006, Plaintiff was given a blood test to determine her hormone levels (id., p. 28).
Plaintiff was absent from work for eleven days between February 19 and March 6, 2006 (Court File No. 21, p. 3). According to her doctor, Plaintiff required two, three-day periods of leave, for a total of six days of leave (Dr. Donesky's Deposition, Court File No. 21, Attachment 3, pp. 10, 12, 25-29, 40-45; Certification of Health Care Provider, Court File No. 1, Attachment 1; Dr. Donesky's Letter in support of Plaintiff's leave, Court File No. 21, Attachment 4, p. 4.)
Defendant had an "Incident Reporting Policy," which permitted Defendant to terminate any employee who had more than five unexcused absences within a twelve-month period (Court File No. 17, p. 3). Prior to Plaintiff's fertility treatment, but within the same twelve-month period, Plaintiff had accumulated two unexcused absences (Incident Reports, Court File No. 16, Attachment 4, pp. 15-16). During the fertility treatments, Plaintiff missed eleven days of work, resulting in eleven incidents of absence (Court File No. 17, p. 3). Defendant excused six of these incidents - a total of six days of absence - in light of Dr. Donesky's "Certification of Health Care Provider" form, which called for two periods of three-day absences (id.). This still left five unexcused absences, in addition to Plaintiff's previous two (id.). Based on these seven incidents of absence, Defendant terminated Plaintiff (Court File No. 17, p. 3; Recommendation for Termination, Court File No. 16, Attachment 4, p. 14).
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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). When evaluating cross-motions for summary judgment, each motion is evaluated on its own merits with all facts and inferences in the light favorable to the nonmoving party. Bakery & Confectionery Union & Indus. Int'l Health Benefits & Pension Funds v. New Bakery Co., 133 F.3d 955, 958 (6th Cir. 1998).
First, the moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, but must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
A. Defendant's Summary Judgment Motion
Plaintiff has thirteen total incidents of unexcused absences from work (Court File No. 21, p. 3). Plaintiff concedes two of those incidents, occurring prior to her fertility treatments, are not in dispute here (Court File No. 18, Attachment 4, p. 121). Defendant excused six of those incidents for Plaintiff's fertility treatments (Court File No. 17, p. 3). The issue is whether ...