Opinion
Civil Action No. 98-4152-CM
April 19, 2001
MEMORANDUM AND ORDER
Plaintiff Pamela Barnhill filed suit against defendant Farmland Foods, Inc. alleging that defendant terminated her employment in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. and in retaliation for her exercise of rights under the FMLA, 29 U.S.C. § 2615. This matter is presently before the court on defendant's motion for summary judgment (Doc. 40). Defendant seeks judgment on each of plaintiff's claims. For the reasons set forth below, defendant's motion is granted.
• Facts
• Personnel
Defendant Farmland operates a meat processing facility in Topeka, Kansas, known as the OhSe plant. Plaintiff Barnhill began working at the OhSe plant in 1991. In 1996, defendant took over the Topeka plant from Hudson Foods. When defendant took over the facility, it retained plaintiff by hiring her as its employee. Carolyn Hug was the Human Resources (HR) director under Hudson Foods leadership and she remained in this position when defendant took over the plant.
• Plaintiff's Employment and Job Duties
In January 1996, when defendant began its operation of the Topeka plant, plaintiff worked as a machine operator. Plaintiff's duties as a machine operator consisted of pulling meat product out of a slicer machine and placing it into a cellophane film wrapper. In April 1996, plaintiff sought and received a transfer to the "case off worker" position at the Topeka plant. Plaintiff's duties as a case off worker involved removing packed cases of meat from two conveyer belts and placing the cases on the correct pallet.
Occasionally, defendant would assign plaintiff to work as a machine operator when the plant needed additional production staff. These assignments were not regular and were a departure from her job as a case off worker. Plaintiff estimates that she worked as a machine operator approximately ten times between April 1996, when she became a case off worker, and August 1996. When she worked these occasional machine operator assignments between April 1996 and August 1996, her job duties involved pulling meat product out of a slicer machine and placing it into a cellophane film wrapper. Additionally, plaintiff also may have been required to open bags of meat. Plaintiff was at all times, physically capable of performing both the case off position and the machine operator position.
• Plaintiff's Absences
Defendant maintains a points-based attendance policy at its Topeka plant. Under the policy, an employee shall be discharged if she receives 8 points. Plaintiff received a copy of the policy when she received defendant's employee handbook. Under the attendance policy, employees receive one half point for each late arrival or early departure and they receive one point for each day of work missed. If an employee is able to work 90 days without any occurrences, one point drops from her attendance record. Under the policy an employee is not assessed points if her attendance occurrence is covered by the FMLA. However, if an employee wants an absence to count as FMLA leave, she must complete and provide to defendant a FMLA certification form certifying the need for leave. Under the attendance discipline system, defendant gives progressive warnings once an employee accumulates 5 points.
In March 1996, defendant erased all preexisting attendance points. Accordingly, all employees, including plaintiff, started in March 1996 with a clean slate of zero attendance points. Beginning March 1, 1996 until August 1996, plaintiff received points for attendance occurrences as follows:
The court notes that although plaintiff contends she did not receive this written warning, the record establishes that such warning was administered to plaintiff. Specifically, the record includes an HR document addressed to plaintiff, dated June 26, 1996, that she was being assessed a "written letter of warning" which would be "entered on [her] record for excessive absenteeism" and advised her that the "next step will be a second written letter of warning." The document was signed by plaintiff's supervisor and by plaintiff herself. Further, plaintiff testified in her deposition that she received this document. Accordingly, the court does not find this fact has been properly controverted.
The court again notes that although plaintiff contends she did not receive this written warning, the record establishes that such warning was administered to plaintiff. Specifically, the record includes an HR document addressed to plaintiff, dated June 27, 1996, that she was being assessed a "second written letter of warning" which would be "entered on [her] record for excessive absenteeism" and advised her that the "next step will be third and final written warning." The document was signed by plaintiff's supervisor and by plaintiff herself. Further, plaintiff testified in her deposition that she received this document. Accordingly, the court does not find this fact has been properly controverted.
Plaintiff's August 1996 absences were preceded by an injury she received off the job. At about 8:00 p.m. on Sunday, August 4, 1996, during a softball game at her home, plaintiff was hit in the mouth with a softball thrown to her from approximately 25 feet away. The softball caused plaintiff swelling and a cut on her lip, which did not require stitches. Plaintiff did not seek medical attention on August 4. Instead, she treated her injury by placing ice on her mouth. The injury was sufficiently painful to disturb plaintiff's sleep on the evening of August 4, 1996. The injury became inflamed during the night of August 4 and by the morning of August 5, the wound had begun seeping pus.
Despite her injury, plaintiff came to work on August 5 and was able to perform all of her assigned job tasks. Plaintiff had received a new assignment on August 5, requiring her to open and handle bags of meat. Plaintiff worked for 90 minutes on August 5, between the hours of 6:00 a.m., when she reported to work, and 7:30 a.m., when her supervisors arrived at the plant. When her supervisors arrived, plaintiff pulled herself off the production line and met with Ms. Hug and Mr. Broadbent to ask permission to seek medical treatment for her lip injury. Plaintiff testified that Ms. Hug and Mr. Broadbent appeared to be "shocked" by the appearance of plaintiff's lip.
Ms. Hug gave plaintiff defendant's FMLA medical certification forms. After plaintiff left work on August 5, she sought medical attention at MinorMed, a walk-in health clinic. Scott Ford, a physician assistant at MinorMed, examined plaintiff, filled out an examination form, and sent her to a hospital for x-rays to rule out the possibility of a broken jaw. The x-rays revealed plaintiff's jaw was not broken. Mr. Ford noted that the plaintiff's lip was cut and swollen, but he saw no evidence of infection. The cut on plaintiff's lip did not require stitches. Mr. Ford, under the supervision of Dr. Iliff, placed plaintiff on a regimen of prescription medication, Cataflam, an anti-inflammatory medicine used for the treatment of pain.
Plaintiff testified that she believed she was prohibited from working around exposed meat while she had an open sore from her cut lip. She felt it important to tell her treating physician the kind of work she had been assigned to do on August 5. Mr. Ford directed plaintiff not to return to work until August 8. Mr. Ford recorded on the FMLA certification form that plaintiff's condition commenced on August 4, 1996 and that its probable duration extended to August 8, 1996. Mr. Ford indicated the regimen of treatment was to be "meds." In response to the form question, "Is employee able to perform the functions of employee's position?" Mr. Ford indicated "No."
The swelling on plaintiff's lip began to subside by the evening of August 5. By August 6, the injury on plaintiff's lip ceased to cause her pain, was no longer bleeding or swollen, and appeared to have largely healed.
• Plaintiff's Return to Work and Discharge for Excessive Absences
Plaintiff was absent from work beginning August 5, when she left work early, and on August 6 and 7, 1996. Plaintiff returned to work on August 8. When she returned to work, plaintiff presented her completed FMLA certification form to Ms. Hug. However, plaintiff had called Ms. Hug on August 5, when her medical evaluation and treatment was complete, and verbally relayed the information on the FMLA form to Ms. Hug. Plaintiff offered to bring the FMLA certification form to Ms. Hug at Farmland. Mr. Hug told her this was not necessary and that she could bring the form upon her return to work on August 8, 1996.
Ms. Hug reviewed the FMLA form on August 8 and referred to a publication on FMLA implementation. Ms. Hug determined that plaintiff's absences were not FMLA-covered. Therefore, Ms. Hug assessed plaintiff the attendance points for her absences on August 5, 6, and 7.
The accumulated points placed plaintiff over the limit allowed under defendant's attendance policy and she was discharged from her employment.
Plaintiff claims that her early departure on August 5, and her absences on August 6 and 7 were covered by the FMLA and therefore, that the absences should not have counted against her under defendant's attendance policy.
• Motion for Summary Judgment
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
• FMLA Discharge Claim
Plaintiff claims defendant violated her rights under the FMLA when it assessed attendance points against her on August 5, 6, and 7 and, consequently, terminated her employment. Defendant seeks summary judgment arguing that plaintiff was not eligible for FMLA leave on these dates, as she did not suffer from a serious health condition rendering her unable to perform the functions of her case off worker position.
Under the FMLA, eligible employees may take up to twelve work weeks of leave within a twelve month period in the event that the employee suffers from a "serious health condition that makes the employee unable to perform the functions of the positions of such employee." 29 U.S.C. § 2612(a)(1)(D). At the end of a qualified leave period, the employee is entitled to reinstatement to the position the employee previously held or to an equivalent position. 29 U.S.C. § 2614(a). The FMLA provides for certification requirements to enable an employer to verify the existence of a serious health conditions. Id. § 2613. However, it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. Id. § 2615(a)(1).
• Serious Health Condition
Under the FMLA, 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." Id. § 2611(11). Here, there is no contention that plaintiff received inpatient care. Defendant argues plaintiff did not have a serious health condition because (1) she did not receive "continuing treatment by a health care provider" and (2) therefore, she was not "unable to perform the functions of [her] position." Id. §§ 2611(11) 2612(a)(1)(D). Whether an illness or injury constitutes a "serious health condition" under the FMLA is a question appropriately resolved by summary judgment where no genuine issue remains as to the relevant facts. See Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir.), cert. denied, 1212 S.Ct. 171 (2000) (noting determination of whether plaintiff has a "serious health condition" under FMLA is a "mixed question of fact and law" that may be resolved where no genuine issue of material fact remains); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999) (noting determination of serious health condition is a legal question).
In accordance with the FMLA, the Department of Labor has issued regulations that define and govern the rights and responsibilities of the parties. 29 U.S.C. § 2654. As relevant here, the regulations indicate that a "'serious health condition' entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves . . . [c]ontinuing treatment by a health care provider." 29 C.F.R. § 825.114(a)(2). The regulations further specify that a serious health condition requires continuing treatment when it causes "[a] period of incapacity ( i.e., inability to work, attend school or perform other regular activities due to the serious health condition, treatment therefore, or recovery therefrom) of more than three consecutive calendar days, . . ." 29 C.F.R. § 825.114(a)(2)(i)(A) (emphasis added).
Thus, to avoid summary judgment, plaintiff must establish she had a "serious health condition" by setting forth evidence to establish that she endured a "period of incapacity" where she was unable "to work . . . due to the serious health condition, treatment therefore, or recovery therefrom" and that such period lasted "more than three consecutive calendar days." Id.; Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir. 1997) (recognizing that courts have uniformly "required a showing of incapacity" in applying the FMLA);
• Three consecutive calendar days
At issue are plaintiff's absences on August 5, 6, and 7. These absences cannot qualify for coverage under the regulatory definition of "serious health condition" because, even assuming plaintiff was incapacitated on those days, the incapacity did not last more than three days. See Bauer v. Dayton-Walther Corp., 910 F. Supp. 306, 310 (E.D.Ky. 1996) (holding that plaintiff's one-day absence "could never qualify" under the regulatory definition because the period of incapacity never lasted more than three days). It is uncontroverted that plaintiff was not absent for more than three days. Plaintiff reported to work on August 5, working 90 minutes of her scheduled shift, and then she left early. Plaintiff does not contend she was unable to perform the functions of her job on August 5. Plaintiff was also absent from work on both August 6 and 7. Plaintiff returned to work on August 8. Therefore, at most, plaintiff was incapacitated for two full days and a portion of a third. This time period of less than three days is insufficient to meet the regulatory definition of serious health condition.
The court notes that plaintiff obtained a medical certification indicating that plaintiff's condition commenced on August 4, 1996 and that its probable duration would extend to August 8, 1996. The certification further opines that plaintiff was not "able to perform the functions of [her] position." However, the uncontroverted facts contradict the certification's assertions, because plaintiff did perform the functions of her position for a period of time on August 5. There is no evidence in the record to show Dr. Ford was aware that plaintiff had, in fact, performed all the functions of her position on the morning of August 5, 1996. Accordingly, the court finds there is no evidence from which a reasonable jury could find that plaintiff was incapacitated for more than three consecutive days.
• Incapacity
Even if the court were to assume plaintiff met the "more than three consecutive calendar days" requirement under the regulations, she is unable to establish that she was "incapacitated" within the meaning of the FMLA during that period. To establish incapacity, plaintiff must show that her "health condition [was] so serious that [she was] unable to perform the functions of her position." Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 475 n. 12 474-76 (D.Kan. 1996) (holding employer's refusal to grant leave did not violate the FMLA where the employee failed to prove that her condition "kept her from performing the functions of her job"); see Hodgens v. Gen. Dynamics Corp., 963 F. Supp. 102, 106 (D.R.I. 1997) (holding no FMLA breach where employee's "condition did not prevent him from performing his job"); Hott v. VDO Yazaki Corp., 922 F. Supp. 1114, 1128 (W.D.Va. 1996) (noting incapacity requirement and granting employer summary judgment where condition would last ten days but where "the plaintiff was able to perform the functions of her position"). Thus, to survive summary judgment plaintiff must set forth evidence to establish that she was "unable to work at all" or was "unable to perform any one of the essential functions" of her position "within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the regulations at 29 C.F.R. § 1630.2(n)." 29 C.F.R. § 825.115.
The court notes that, to survive summary judgment, plaintiff must set forth evidence to establish that her serious health condition rendered her "unable to perform the functions of her position." 29 U.S.C. § 2612(a)(1)(D). Because the "incapacity" requirement in 29 C.F.R. § 825.114(a)(2) is consistent with the requirement in 29 U.S.C. § 2612(a)(1)(D) that the health condition be so serious that the employee is unable to perform the functions of his position, the court reviews these requirement simultaneously. See Gudenkauf, 922 F. Supp. at 475 n. 12.
It is undisputed that plaintiff performed the functions of her position on August 5 for at least 90 minutes. Specifically, plaintiff admits that despite her injury, she came to work on August 5 and was able to perform all of her assigned job tasks. Plaintiff's admission on this issue merits the court's conclusion that plaintiff was not "incapacitated" within the meaning of the FMLA for the alleged period of incapacity — August 5 to August 8. Plaintiff's certification indicates plaintiff was unable to perform the functions of her position for the period between August 4 to August 8. However, the court again finds it significant that plaintiff's own admissions contradict this evidence. Further, there is nothing in the record to indicate Mr. Ford was aware of plaintiff's ability to perform her job on the morning of August 5. Accordingly, even drawing all inferences in favor of plaintiff, the court finds no reasonable fact finder could conclude that plaintiff was incapacitated within the meaning of the FMLA during the period at issue.
Plaintiff argues that defendant's actions should estop it from asserting objections to the certification completed by Dr. Ford on August 5, 1996. Specifically, plaintiff asserts that where "an employer doubts the validity of the certification" its remedy is "to request a second opinion, at its own expense, and a third opinion, also at its own expense, to resolve with finality any dispute that may exist between the first two opinions." 29 U.S.C. § 2613(c) (d). Plaintiff argues the defendant should have followed this procedure for contesting the certification when it initially received the medical certification information from plaintiff over the telephone on August 5, 1996. Other than reciting the statute, plaintiff cites no legal authority for her proposition.
In Stekloff v. St. John's Mercy Health Sys., the Eighth Circuit encountered a similar argument. 218 F.3d 858, 860 (8th Cir. 2000). The plaintiff in Stekloff contended that defendant had "waived its right to contest the fact that she has a 'serious health condition'" because the FMLA's regulations "allow an employer who wishes to contest the validity of the medical certification to require the employee to obtain a second opinion." Id.; 29 U.S.C. § 2613 (c)(1). In Stekloff, after plaintiff presented a medical certification to her employer, it did not request a second opinion in accordance with the regulations. The employer ultimately denied plaintiff FMLA coverage. The employer then defended against plaintiff's FMLA claim by contesting the validity of the certification. The Eighth Circuit concluded that in these circumstances the employer had not waived its right to contest the validity of the certification.
The court agrees with the Eighth Circuit's analysis and conclusion. As relevant here, the court recognizes, as did the Eighth Circuit, that the language of § 2613(c)(1) is permissive. The regulation states that an employer with "reason to doubt the validity" of the employee's certification "may" require a second opinion. Id. The court does not interpret § 2613(c)(1) to mandate that an employer request a second opinion or else be precluded from contesting the validity of a certification. Therefore, the court does not agree with plaintiff that defendant is estopped from contesting the validity of her medical certification.
Plaintiff also asserts that defendant's failure to react to the medical certification information on August 5, at the time plaintiff called Ms. Hug with the information, should preclude defendant from contesting its validity. The court agrees that defendant's failure to inform plaintiff on August 5 that her absences may not be covered under the FMLA worked a detriment to plaintiff, given her heightened status under Farmland's attendance policy. The court also notes that it appears plaintiff was lulled into assuming her absences would be FMLA covered when Ms. Hug told plaintiff it was not necessary for plaintiff to bring her FMLA certification form to her on August 5, but indicated she could bring the form upon her return to work August 8. Although this action may not be the most advisable human resources practice, as the current lawsuit may have been averted had defendant been more forthcoming, plaintiff has pointed to no provision in the FMLA indicating that such behavior violates the Act. Further, plaintiff cites no authority for her position that an employer must rely upon oral certification information provided by an employee. Although these facts may give rise to other actions, the court finds they do not give rise to an FMLA claim.
Accordingly, the court finds there are no genuine issues of material fact precluding summary judgment for defendant on plaintiff's FMLA discharge claim. The court grants summary judgment to defendant on plaintiff's FMLA discharge claim.
IV. FMLA Retaliation Claim
Plaintiff's original complaint appeared to allege a claim for FMLA retaliation. However, the pretrial order entered by this court on June 21, 1999 does not reflect this theory of recovery. Pursuant to its terms, the pretrial order supersedes the pleadings and controls the future course of the action, unless it is modified to prevent injustice. No motion to modify the pretrial order has been presented to the court. Therefore, it appears plaintiff has abandoned this theory of recovery.
Even if the court assumes plaintiff properly preserved her retaliation claim, the court finds she has failed to set forth sufficient evidence to sustain it. As noted, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a).
The court reviews plaintiff's FMLA retaliation claim under the McDonnell Douglas burden shifting analytical framework. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). In the summary judgment context, plaintiff must raise a genuine issue of material fact on each element of her prima facie case. Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996). Once plaintiff has established a prima facie case, the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for its employment decision. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). If the defendant meets this burden, the burden again returns to the plaintiff to show that "there is a genuine dispute of material fact as to whether the employer's proferred reason for the challenged action is pretextual." Id.
Pretext may be established by "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proferred legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996) (internal quotations omitted). "[M]ere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988).
Plaintiff's prima facie case of FMLA retaliation requires a showing that "(1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between the two actions." Morgan, 108 F.3d at 1325.
Defendant does not contest the first and second elements of plaintiff's prima facie case. Instead, defendant argues plaintiff cannot establish a causal connection between her exercise of FMLA rights and her discharge. Even if the court assumes plaintiff set forth evidence sufficient to establish a prima facie case, she is unable to show defendant's proferred reasons were pretextual.
Defendant asserts that plaintiff was discharged for excessive absences under its attendance policy. Specifically, defendant asserts it discharged plaintiff because she exceeded the allowable number of attendance points under the policy. It is significant to the court that plaintiff does not dispute that her discharge was made pursuant to the policy. Plaintiff does not contest that she incurred the number of attendance points assessed. Instead, plaintiff contends the assessment of the points on August 5, 6, and 7 was improper under the FMLA. The court has already ruled that such assessment was not in violation of the FMLA. Therefore, it remains uncontroverted that plaintiff incurred attendance points sufficient to merit her discharge pursuant to the policy.
Plaintiff argues that the timing of plaintiff's discharge following her assertion of FMLA rights merits an inference of retaliatory intent. The court is not persuaded. The timing of the adverse action in relation to the protected activity may at times give rise to an inference of retaliatory intent. See Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 329 (10th Cir. 1996) ("protected conduct closely followed by adverse action may justify an inference of retaliatory motive"). But see Day v. Excel Corp., No. 94-1439-JTM, 1996 WL 294341, at *13 (D.Kan. May 17, 1996) (noting discriminatory intent cannot be inferred merely from the time an employee is discharged following FMLA leave). However, where, as here, the reason for the defendant's adverse action (i.e., discharge) is uncontroverted, and the reason for the adverse action (i.e., exceeding allowable attendance points) is separate and unrelated to the protected activity, the close timing of the actions is not compelling.
Plaintiff also asserts that an inference of retaliation may be raised by Ms. Hug's provision of FMLA forms to plaintiff where she had not requested them. The court disagrees. An employer is required to provide employees who may qualify for leave with written notice of their rights and obligations under the FMLA. 29 C.F.R. § 825.301(b) (c). Accordingly, the court finds no reasonable factfinder could infer retaliatory intent from this action.
Plaintiff next argues that defendant's failure to give contemporaneous written warnings of the impending dismissal for absenteeism gives rise to an inference that defendant manufactured the written warnings. Plaintiff has not directed the court to that portion of the record establishing that such contemporaneous warning is required. Although the court must draw all reasonable inferences in favor of plaintiff, it is not required to rely upon assertions of fact not contained in the record. Plaintiff also asserts that because plaintiff did not sign the written warnings administered on August 5, 6, and 7, where she had signed all previously administered warnings, this gives rise to an inference that such warnings were manufactured. However, it remains uncontroverted that plaintiff was, in fact, absent on August 5, 6, and 7, and that these absences gave rise to the warnings. The court finds a reasonable factfinder could not, from the facts set forth here, draw an inference of retaliatory intent. Accordingly, because plaintiff is unable to set forth evidence to establish defendant's proferred reason is pretextual, she has not sustained her burden. Therefore, defendant is entitled to summary judgment on plaintiff's FMLA retaliation claim.
• Order IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Doc. 40) is granted. Defendant is granted summary judgment on plaintiff's FMLA discharge claim and FMLA retaliation claim. As no claims remain pending in this action, plaintiff's case is dismissed in its entirety.