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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARGARET BARRON, Plaintiff v. QUEST DIAGNOSTICS, INC., Defendant : : : : : : : CIVIL ACTION NO. 09-1247 MEMORANDUM S T E N G E L , J. March 1, 2010 M a rg a re t Barron worked for Quest Diagnostics from 2002 until she was fired in 2 0 0 8 . She claims Quest terminated her for using leave time to treat a serious medical c o n d itio n 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. I . FACTUAL BACKGROUND M s. Barron worked as a specimen technician for Quest Diagnostics starting in 2 0 0 2 . Def.'s SUF 1.1 Her shift generally ran from 2:00 a.m. until 10:30 a.m. Def.'s E x . Tab C, Barron Dep., 21. Starting as early as 2003, her performance evaluations noted th a t 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 1 Quest's statement of facts is referenced where the parties do not dispute the truth of the fact asserted. When a fact is in dispute, the record or the plaintiff's statement of facts is referenced. -1- n in e times in March of 2008 she was more than ten minutes late to work, in violation of Q u e st's personnel policies. Def.'s SUF 4, 6. She received similar reports in July and A u g u s t of 2008 identifying fourteen days in June and five days in July on which she was m o re than ten minutes late. Id. 8. The August CCA stated: "Final warning - Written: F a ilu re to correct this deficiency or follow Company policies and/or procedures may re su lt in further corrective action, up to and including termination, unless waived by m a n a g em e n t in some extreme circumstance(s)." Id. 9. Mrs. Barron was late eight times d u rin g August of 2008. Id. 10. On August 28, 2008, Heather McNeill, a Human Resources Representative, sent M s . 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 te rm in a tin g Ms. Barron. Id. 11. Ms. McNeill met with Ms. Barron on September 3, 2 0 0 8 , and warned her that more latenessess would result in termination. Id. 12; Barron D e p . 122-23. Ms. Barron was then late six times in September of 2008. Def.'s SUF 13. M s. McNeill stated in a declaration submitted for this litigation that she, Mr. N ic h o lls , and Mr. Nicholls' supervisor, Susan Mills, agreed during a meeting on S e p tem b e r 30, 2008, "that Ms. Barron should be terminated for her latenesses subject to o b ta in in g approval from [Ms. McNeil's supervisor, Debra Mcghee]." Def.'s Ex. Tab A, M c N e il Decl. 7. However, during Ms. Barron's Unemployment Compensation Appeal H e a r in g , Ms. McNeil stated that she and Mr. Nicholls made the decision to terminate Ms. -2- B a rro n . Unemployment Compensation Hearing Tr., 7. Mr. Nicholls testified that at the S ep tem b er 30, 2008, meeting, he, Ms. McNeill and Ms. Mills discussed Ms. Barron's a tten d a n c e issues. Def.'s Ex. Tab B, Nicholls Dep. 66-68. He stated, although he was "in f a v o r" of terminating Ms. Barron, he did not leave the meeting with the impression that s h e would be fired the next day; rather, he understood that they would be making "a re c o m m e n d a tio n " 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 b ro n c h itis . Def.'s SUF 28; Pl.'s SUF 38. She cancelled a doctor's appointment s c h e d u le d for Thursday, October 9, 2008 because she was too ill to travel, and went to the e m erg e n c y room for treatment on Sunday, October 12, 2008. Barron Dep. 148-50. On e a ch day she missed work, she called Quest and spoke to shift "leads" to report that she w a s sick and would be absent. Def.'s SUF 28. During these conversations, the leads c o m m e n te d 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 O c to b e r 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 w e e k ," 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 c o n tin u e d illness, and returned to work on October 18. Unemployment Compensation -3- H e a rin g Tr., 13. She did not call in sick on two or three of those days, but explained that sh e thought she had it "covered when [she] called in on [October] 14" and said she would b e missing more days. Barron Dep. 64. Erna Kolvik, a Benefits Specialist for Quest, in d ic a te d that Quest's call log shows that Ms. Barron called and left a message on O c to b e r 16, 2008 and that Ms. Kolvik returned her call on October 17. Def.'s Ex. Tab X, K o lv ik 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 te s tif ie d 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, " D e b ra and I talked it over . . . [m]y recommendation is that we move forward with te rm in a tin g [Ms. Barron]. I will be in the office on Friday . . . so if you can put the d o c u m e n ta tio n 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 M s . Barron was based solely on her latenesses in the months before October. Def.'s Ex. T a b J, Mills Decl. at 4; Def.'s Ex. Tab. B, Nicholls Dep. at 16. Mr. Nicholls testified th a t on October 16, 2008, after the decision was made to fire Ms. Barron, he discovered th a t there were no entries on October 15 or 16, 2008 for Ms. Barron in Quest's attendance b o o k . Def.'s SUF 19. He learned that no one had taken a call from her regarding these ab sen ce s, so he considered them to be "no show/no call" days. Nicholls Dep. 70-71. Mr. N ic h o lls and Ms. Mills both stated that because Ms. Barron failed to call on October 15 -4- a n d 16, 2008, they decided to add these incidents as additional support for her te rm in a tio n , which had originally been based solely on her lateness. Mills Decl. at 4; N ic h o lls Dep. at 15-16. Mr. Nicholls, Ms. Mills, and Ms. McNeill prepared a CCA dated October 21, 2 0 0 8 , stating that Ms. Barron was terminated. Def.'s SUF 25. On the morning of O c to b e r 21, Mr. Nicholls and Ms. McNeill met with Ms. Barron in Ms. McNeill's office, a n d informed her that she had been terminated. Id. 26. M s . Barron filed her complaint against Quest on March 23, 2009, alleging one c o u n t of violating the FMLA. Discovery closed on September 15, 2009. Quest filed a m o tio n for summary judgment on October 15, 2009 and Ms. Barron filed her response on N o v e m b e r 13, 2009. I I . STANDARD OF REVIEW S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury c o u ld return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is " m a te ria l" when it could affect the outcome of the case under the governing law. Id. -5- A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that it b e lie v e s demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's initial Celotex burden can be met simply b y demonstrating "to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, "the adverse party's response, by affidavits or otherwise as provided in this r u le , must set forth specific facts showing that there is a genuine issue for trial." FED. R. C IV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party f a ils to rebut by making a factual showing "based on the affidavits or by depositions and a d m iss io n s on file" that is "sufficient to establish the existence of an element essential to th a t party's case, and on which that party will bear the burden of proof at trial." Celotex, 4 7 7 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992). T h e court must view the evidence in the record in the light most favorable to the n o n -m o v in g party and draw all reasonable inferences in favor of that party. Anderson, 4 7 7 U.S. at 255. The court must decide not whether the evidence unmistakably favors o n e side or the other, but whether a fair-minded jury could return a verdict for the p la in tif f on the evidence presented. Id. at 252. If the non-moving party has produced m o re than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, -6- th e n the court may not credit the moving party's version of events against the opponent, e v e n if the quantity of the moving party's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). I I I . DISCUSSION In her complaint, Ms. Barron asserts four separate causes of action under the F M L A . She claims that Quest (1) interfered with her FMLA rights by failing to provide h e r with particularized notice of her rights under the FMLA after it was advised that she h a d an FMLA qualifying condition; (2) interfered with her rights under the FMLA by f a ilin g to reinstate her to her former position upon completion of FMLA leave; (3) re ta lia te d against her for exercising her rights under the FMLA by terminating her; (4) re ta lia te d against her for previous FMLA-qualifying absences. Pl.'s Compl. 25-28. Quest argues that summary judgment should be granted in its favor because Ms. Barron c a n n o t prove her FMLA claims for either interference or retaliation. C o n g re ss enacted the FMLA in 1993 to accommodate the important societal in te re st in assisting families by establishing a minimum labor standard for leave. Among C o n g re ss ' stated purposes for the Act are to (1) balance the demands of the workplace w ith the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; and (2) entitle employees to ta k e reasonable leave for medical reasons. Sommer v. Vanguard Group, 461 F.3d 397, 3 9 8 -9 9 (3d Cir. 2006). The FMLA endeavors to accomplish these purposes "in a manner -7- th a t accommodates the legitimate interests of employers." 29 U.S.C. 2601(b)(3). The FMLA contains two relatively distinct types of provisions. First, it creates a s e rie s of prescriptive substantive rights for eligible employees, often referred to as the " e n title m e n t" or "interference" provisions, which set floors for employer conduct. See C h u rc h ill v. Star Enters., 183 F.3d 184, 192 (3d Cir. 1999). Eligible employees "shall be e n title d to a total of twelve workweeks of leave during any twelve-month period" if the e m p lo ye e has a "serious health condition that makes the employee unable to perform the f u n c tio n s of the position of such employee." 29 U.S.C. 2612(a)(1)(D). To assert an interference claim, the employee needs to show only that she was en titled to benefits under the FMLA and was denied them. 29 U.S.C. 2612(a), 2 6 1 4 (a ). The Act provides that "it shall be unlawful for any employer to interfere with, re stra in , or deny the exercise of or the attempt to exercise, any right provided under this s u b c h a p te r." 29 U.S.C. 2615(a)(1). Under this theory, the employee need not show that s h e was treated differently than others. Callison v. City of Philadelphia, 430 F.3d 117, 1 1 9 (3d Cir. 2005). Further, the employer cannot justify its actions by establishing a le g itim a te business purpose for its decision. Id. at 119-120. An interference action is not a b o u t discrimination, it is only about whether the employer provided the employee with th e entitlements guaranteed by the FMLA. Id. A. F a ilu r e to Notify Claim A n employer's failure to advise an employee of her right to FMLA leave c o n stitu te s interference in violation of 2615(a)(1). See Conoshenti v. Public Serv. Elec. -8- & Gas Co., 364 F.3d 135, 144-45 (3d Cir. 2004). Advisement of FMLA rights is n e c es s a ry "to ensure that employers allow their employees to make informed decisions a b o u t leave" and to allow employees to plan their medical absence in such a way as to e n s u re protection under the FMLA. Id. at 144 (citing Nusbaum v. CB Richard Ellis, Inc., 1 7 1 F.Supp.2d 377, 379-80 (D.N.J. 2001)). A plaintiff asserting a failure to advise claim m u st also prove prejudice by showing that had she been properly informed of her FMLA rig h ts , she could have structured her leave differently. Id. at 145-46; see also Capilli v. W h ite s e ll Constr. Co., 271 Fed.Appx. 261, 267 (3d Cir. 2008). I will grant Quest's motion as to Ms. Barron's failure to notify claim. Even a ss u m in g that Ms. Barron's calls to Quest informing them that she was sick and coughing w e re sufficient to notify them that she suffered from a serious medical condition that was c o v e re d under the FMLA, she has failed to show prejudice. Ms. Barron presents no e v id e n c e that she returned to work earlier than she would have had she been properly n o tifie d of a right to take FMLA leave, or that she could have structured the leave she did ta k e differently. Ms. Barron took days off due to her asthmatic bronchitis until she was rea d y to return. Ms. Barron testified during her deposition that she called Quest's d is a b ility and leave services department to inquire about taking time off for knee re p la c em e n t surgery in the future, and did not call to inquire about further leave for her b ron ch itis. Because there is simply no evidence that Ms. Barron was told to return p re m a tu re ly or that she returned to work prematurely, no reasonable jury could conclude th a t she was prejudiced by any failure on the part of Quest to notify her of her rights -9- u n d e r the FMLA. B. F a ilu r e to Reinstate Claim U p o n return from a qualified absence, an employee is entitled to be restored to her fo rm er position or to an "equivalent position." 29 U.S.C. 2614(a)(1); see also Sommer, 4 6 1 F.3d at 399. An employer's failure to reinstate an employee "to an equivalent p o s itio n with equivalent employment benefits, pay, and other terms and conditions of em p loym en t" upon return from FMLA leave constitutes interference with that employee's F M L A rights. 29 U.S.C. 2614(a)(1)(B); Sommer, 461 F.3d at 399. However, an e m p lo ye e 's right to reinstatement is not absolute. "[T]he FMLA does not provide e m p lo ye e s with a right against termination for a reason other than interference with rights u n d er the FMLA." Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2 0 0 7 ); see also Conoshenti, 364 F.3d at 141 ("If an employee is discharged during or at the end of a protected leave, there is no right to reinstatement.") I cannot find any substantive distinction between Ms. Barron's failure to reinstate in te rf e re n c e claim and her retaliation claim, and, in her response to Quest's motion for su m m a ry judgment, she makes no effort to set one forth. Because this failure to reinstate claim is duplicative of her retaliation claim, it will be treated as a retaliation claim. In C o n o s h e n ti, the employee plaintiff claimed his taking leave was used by the employer as a negative factor in its decision to discharge the employee, and the Third Circuit treated th is as a retaliation claim. See Conoshenti, 364 F.3d at 146-48. C o u rts in this district have recognized that there is often confusion about whether a -10- p la in tif f 's FMLA claim is rightly characterized as an interference or a discrimination c la im , especially when the plaintiff-employee is terminated following completion of F M L A leave. See Whitman v. Proconex, Inc., No. 08-2667, 2009 WL 141847 at *7 (E .D .P a . Jan. 20, 2009) (citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th C ir. 2006)). In essence, the determination whether Quest has met its burden in showing th a t it would have terminated Ms. Barron even if she did not take FMLA leave would a p p ly to both her failure to reinstate claim and her retaliation claim. See id. at n. 4 (" [ T ]h e legitimate, nondiscriminatory reasons for termination that Defendant articulates u n d e r the McDonnell Douglas framework regarding the retaliation claim . . . can be v i e w e d as an affirmative defense under the FMLA interference analysis."); see also A tch iso n v. Sears, --- F.Supp.2d ----, No. 08-3257, 2009 WL 3210063 at *7 (E.D.Pa. Oct. 9 , 2009) ("[Plaintiff's] interference claim is identical to his retaliation claim, and p r e m is e d on the same allegation that [Defendant] took adverse employment action against h im because he requested FMLA leave. He cannot escape the McDonnell Douglas a n a lysis to prove his case merely by affixing an "interference" label to one of his d u p lic a tiv e claims.); Mascioli v. Arby's Restaurant Group, Inc., 510 F. Supp. 2d 419, 433 (W .D .P a . 2009) ("Since plaintiff's interference claim should be properly characterized as a retaliation claim, the interference claim will be denied as moot in light of the assertion b y plaintiff of her retaliation claim."). Therefore, I will grant Quest's motion as to Ms. B a rr o n 's reinstatement claim because it is duplicated in her retaliation claim. C. R e ta lia tio n Claim -11- In its "discrimination" or "retaliation" provisions, the FMLA provides protection a g a in s t discrimination based on the exercise of FMLA rights. 29 C.F.R. 825.220(c) (" A n employer is prohibited from discriminating against employees . . . who have used F M L A leave"). Employers may not "use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. 8 2 5 .2 2 0 (c ); see also Conoshenti 364 F.3d at147 n.9 (3d Cir. 2004). 1. D ir e ct Evidence of Retaliation W h e n a plaintiff alleging termination presents direct evidence that her use of F M L A leave was "a substantial factor" in the decision to fire her, her claim is analyzed u n d e r the framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1 7 7 5 , 104 L.Ed.2d 268 (1989). See Conoshenti, 364 F.3d at147. When direct evidence is p re se n te d , "the burden of persuasion on the issue of causation shifts, and the employer m u st prove that it would have fired the plaintiff even it if had not considered the FMLA le a v e." Id. Direct evidence is evidence "sufficient to allow the jury to find that `the d e c isio n makers placed substantial negative reliance on [the protected activity] in re a ch in g their decision' to fire [the plaintiff]." Id. at 148 n. 10. M s . Barron claims she has provided sufficient direct evidence of retaliation for her c la im to be evaluated under the Price Waterhouse framework. Whitman v. Proconex, 2 0 0 9 WL 141847, is also instructive to this issue. There, the plaintiff was ostensibly fired b e c au s e she received numerous customer complaints, but her employer also made s ta te m e n ts concerning attendance issues that may have implicated her rights under the -12- F M L A . See Whitman, 2009 WL 141847 at *11. The court found that, although some of th e employer's concerns had to do with the plaintiff's attendance, she had not produced s u f f ic ie n t direct evidence of retaliation because "[d]efendant's stated reason for te rm in a tin g Plaintiff's employment--customer complaints--is well documented and m a n y complaints did not correspond in time to any absence, FMLA-qualified or not." Id.2 T h e evidence Ms. Barron has presented does not constitute direct evidence of re ta lia tio n . Ms. Barron's lateness problems at Quest began as early as 2003. She c o n sis te n tly received CCA reports concerning her lateness, and admitted to attending m e e tin g s with Ms. McNeill in August and September of 2008 where Ms. McNeill in f o rm e d Ms. Barron that if she did not address her timeliness issues she would lose her jo b . Barron Dep. 75, 77, 87, 88, 92, 95, 121-24. Quest has submitted evidence e sta b lis h in g that Ms. McNeill and Mr. Nicholls spoke about the possibility of terminating M s . Barron for her lateness in August and September of 2008, and resolved at the end of S e p te m b e r to recommend her termination. McNeill Decl. 7; Nicholls Dep. 66-68. Because Ms. Barron had an extensive history of lateness, and her supervisors had begun d is c u s s io n s about terminating her because of lateness before she commenced FMLA le a v e in October of 2008, Ms. Barron has not presented sufficient evidence that her su p e rv iso rs relied substantially on her FMLA-related absences in deciding to terminate The Whitman court relied in this reasoning on the District of New Jersey decision in Tamayo v. Deloitte & Touche, LLP, No. 05-3364, 2007 WL 135975 (D.N.J. Jan. 16, 2007). -13- 2 h er. 2. I n d ir e ct Evidence of Retaliation B e c au s e Ms. Barron has not presented direct evidence in support of her retaliation c la im , it will be analyzed under the framework set forth in McDonnell Douglas Corp. v. G r e e n , 411 U.S. 792, 93 S.Ct. 1817 (1973). See Atchinson, 2009 WL 3210063 at *8. To p ro v e an FMLA retaliation claim with indirect evidence, a plaintiff must show that (1) s h e took an FMLA leave; (2) she suffered an adverse employment decision; and (3) the a d v e rs e decision was causally related to her leave. Id. If the plaintiff meets the prima f a c ie burden, a rebuttable presumption of unlawful retaliation arises and the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the plaintiff's te rm in a tio n . Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 503 (3d Cir.1996) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). I believe that Ms. Barron has stated a prima facie case. The parties do not dispute th a t she qualified for FMLA leave, and there is sufficient evidence to establish that she to o k FMLA leave. An employee seeking FMLA leave "shall provide the employer with n o t less than 30 days' notice, before the date the leave is to begin . . . except that if the d a te of the treatment requires leave to begin in less than 30 days, the employee shall p ro v id e such notice as is practicable." 29 U.S.C. 2612(e)(2)(B). "It is clear that an e m p lo ye e need not give his employer a formal written request for anticipated leave. S im p le verbal notification is sufficient." Sarnowski, 510 F.3d at 402. The employee p ro v id in g notice of anticipated leave must only provide her employer with "reasonably -14- a d e q u ate information under the circumstances to understand that the employee seeks le a v e under the FMLA." Id. Although Quest claims that "it is unclear how Barron in t e n d s to establish the she `exercised her rights under the FMLA,'" there is evidence Ms. B a rro n gave sufficient notice of her illness to adequately inform Quest that she was taking F M L A -q u a lif ie d leave. Ms. Barron called shift leads at Quest to inform them that she w a s severely ill and that she would be bringing a doctor's note confirming this when she re tu rn e d . Because she was too sick to report to work or to attend her first scheduled d o c to r's appointment, and made this clear to the leads she spoke to when she called in s ic k , she provided reasonably adequate information for Quest to understand that she n e e d ed FMLA leave. M s . Barron clearly suffered an adverse employment action--her termination-- f o llo w in g her return from leave. The only remaining question is whether she has e sta b lis h e d a causal connection between her exercise of FMLA rights and her te rm in a tio n . Ms. Barron claims that the temporal proximity between her leave and ter m in a tio n is sufficient to establish a prima facie case. The Third Circuit, while re c o g n iz in g that "the mere fact that adverse employment action occurs after [a protected a c tiv ity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a c a u sa l link," has also clarified that when the alleged retaliatory action is "unusually s u g g e stiv e " of retaliatory motive, a causal link may be inferred. Reinhart v. Mineral T e c h n o lo g ie s, Inc., 2006 WL 4050695 at *11 (E.D. Pa. Nov. 27, 2006) (citing Robinson v . City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)). "When a plaintiff is relying -15- u p o n temporal proximity to satisfy her prima facie case for the purpose of summary ju d g m e n t under McDonnell Douglas, close temporal proximity can, by itself, support a fin d ing of causation. Id. at n. 10 (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1 9 8 9 )). M s . Barron's leave began on October 9, 2008, and she returned to work on October 1 8 , 2008. She took two scheduled days off on October 19 and 20, 2008, and returned to w o rk as scheduled on October 21. She was fired on October 21, 2008. Because the time b e tw e e n Ms. Barron's return to work and her termination was so short--only one full w o rk day, or three regular days--she has met her burden of proving a prima facie case of re ta lia tio n . This is true even though Quest has presented evidence that the re c o m m e n d a tio n to fire Ms. Barron was made before she began FMLA leave. See C h a m p io n v. Spencer Gifts, LLC, 2009 WL 3131461 at *6 (D.N.J. Sep. 24, 2009) ( f in d in g that temporal proximity was sufficient to establish a prima facie case because e v e n though "the preliminary recommendation to terminate Plaintiff was made before he a n n o u n c e d his intent to take FMLA leave . . . the final decision to terminate Plaintiff's em p loym en t was made while he was out on protected FMLA leave"). B e c au s e Ms. Barron has established a prima facie case of retaliation, the burden s h if ts to Quest to articulate a legitimate nondiscriminatory reason for her termination. Whitman, 2009 WL 141847 at *11. Quest has easily met this burden. It relies on Ms. B a rro n 's continued lateness, citing specifically the warnings she received in August and S e p te m b e r of 2008 that if she did not improve her timeliness in reporting to work, she -16- w o u ld be terminated. T h ere fo re, the burden shifts back to Ms. Barron to show that the nondiscriminatory re a so n Quest provided is a pretext for actual discrimination. Whitman, 2009 WL 141847 a t *11. To show pretext, a plaintiff must present "some evidence . . . from which a f a c tf in d e r could reasonably either (1) disbelieve the employer's articulated legitimate re a so n s; or (2) believe that an invidious discriminatory reason was more likely than not a m o tiv a tin g or determinative cause of the employer's action." Fuentes v. Perksie, 32 F.3d 7 5 9 , 764 (3d Cir. 1994). "[T]o avoid summary judgment, the plaintiff's evidence . . . must a llo w a factfinder reasonably to infer that each of the employer's proffered n o n -d is c rim in a to ry reasons . . . was either a post hoc fabrication or otherwise did not a c tu a lly motivate the employment action." Id. (internal citations omitted). "[T]he n o n - m o v in g plaintiff must demonstrate such weaknesses, implausibilities, in c o n sis ten c ies , incoherencies, or contradictions in the employer's proffered legitimate re a so n s for its action that a reasonable factfinder could rationally find them `unworthy of c re d e n ce ,' and hence infer `that the employer did not act for [the asserted] n o n -discrim in ato ry reasons.'" Id. (internal citations omitted). M s . Barron claims that summary judgment is inappropriate because a material q u estio n of fact remains whether her lateness was the primary motivation behind Quest's d e c is io n to terminate her. She argues that, although she was warned about lateness and c o u ld have been fired for this reason numerous instances before October 2008, Quest did n o t make the final decision to terminate her until she was on leave. This calls into -17- q u e s tio n whether her lateness was the motivating reason for her termination. She also c ites inconsistencies in the testimony of Ms. McNeill, Ms. Nicholls, and Ms. Mills as to w h o made the final decision to terminate her. Finally, Ms. Barron notes the decision to te rm in a te her was made after she notified her supervisor that she would need time off for k n e e surgery and while she was on leave because of her bronchitis. I will therefore deny Quest's motion for summary judgment and allow Ms. B a rro n 's retaliation claim to proceed. She is correct in arguing that her continued p ro b lem s with lateness qualified her for termination months before she was actually ter m in a ted on October 21, 2008. Under Quest's personnel policies, an employee is su b ject to termination after four occasions of being over ten minutes late to work more th a n three times in a four week period. Def.'s SUF 4. Pursuant to this policy, Ms. B a rro n could have been terminated for her absences in March 2008, June 2008, July 2 0 0 8 , August 2008, and September 2008. Def.'s SUF 6, 8-10, 13. Quest argues that M s . McNeill, Mr. Nicholls, and Ms. Mills made the decision to fire Ms. Barron during th e ir September 30, 2008, meeting; however, a fact finder could conclude that they d e c id e d at that meeting to recommend her termination subject to approval from other s u p e rv is o rs . Mr. Nicholls testified that he did not leave that meeting with the impression th a t Ms. Barron would be fired. Nicholls Dep. 66-68. Ms. Barron missed her first day of w o r k due to bronchitis on October 9, 2008; but it was not until October 14 that Ms. M c N e ill told him that she would be "moving forward" with Ms. Barron's termination. T h e Corrective Counseling Action terminating her was not prepared until October 21, -18- 2 0 0 8 . Def.'s Ex. Tab. R. Mr. Nicholls stated that he did not realize until October 17 that M s . Barron had not called before her absences on October 15 and 16, 2008; he did not te stif y that he was unaware Ms. Barron had been on sick leave starting on October 9, 2 0 0 8 . Nicholls Dep. 70-71. A reasonable fact-finder could assume that Mr. Nicholls, as M s . Barron's direct supervisor, knew that she was out on sick leave beginning on October 9 , 2008 and could have communicated this to Ms. McNeill at any time before October 14, 2 0 0 8 . The email from Ms. McNeill to Mr. Nicholls on October 14 refers to "moving to th e next step in the corrective action chain for Maggie" and does not establish that Ms. B a rro n 's absences were not a factor in her termination. Furthermore, Ms. Barron c o rre c tly notes that Mr. Nicholls', Ms. McNeill's, and Ms. Mill's declarations asserting th a t they recommended Ms. Barron's termination subject to approval from Ms. Mcghee a re inconsistent with Ms. McNeill's testimony during Ms. Barron's unemployment c o m p e n s a tio n hearing that only she and Mr. Nicholls decided to terminate Ms. Barron. Unemployment Compensation Hearing Tr., 6. A reasonable fact finder could conclude that this timing was merely coincidental a n d that Ms. Barron's termination was imminent before October 9, 2008. However, a re a so n a b le fact finder could also conclude that, because Ms. Barron's supervisors didnot ta k e the final steps to fire her until she missed work due to illness, her exercise of FMLA rig h ts was the motivating factor behind the ultimate decision to terminate her. Therefore, I will deny Quest's motion for summary judgment as to Ms. Barron's FMLA retaliation c la im . -19- I V . CONCLUSION B e c a u se it is not for this Court to make the credibility assessments necessary to d e c id e whether Quest fired Ms. Barron solely because of her history of lateness or b e c a u se she used FMLA leave, I will deny Quest's motion for summary judgment as to M s . Barron's retaliation claim. I will grant Quest's motion as to her FMLA claims for f a ilu r e to notify and failure to reinstate. An appropriate order follows. -20-

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