The opinion of the court was delivered by: Siragusa, J.
In this employment discrimination case, Plaintiff alleges violations of the Family and Medical Leave Act ("FMLA"), including retaliation. The case is now before the Court on Defendant's motion (Docket No. 12) for summary judgment. For the reasons stated below, the motion is granted.
Paychex Incorporated ("Paychex") hired Plaintiff in January 2005 as a temporary employee. (Beligotti-Fenti Dep., at 18.) She worked as a Human Resources Services Specialist in the Content Management Department at Paychex's John Street facility in Henrietta, New York. (Id., at 18 & 20.) Plaintiff performed various clerical tasks, including data entry and scanning documents. (Id., at 20.) Paychex made Plaintiff's position permanent in April 2005. (Id., at 22.) She reported to Amy Parrow and Jessica Manchester, who in turn reported to Carrie Stella. (Stella Aff. ¶ 2.) When she was hired full-time, Plaintiff was given a Paychex Employee Handbook ("Handbook"). The Handbook contained the terms and conditions of her employment, including Paychex's FMLA leave policy. (Beligotti-Fenti Dep., at 23-25; Shinaman Aff., Ex. B (Receipt of Employee Handbook Form signed by Plaintiff on April 26, 2005); Shinaman Aff, Ex. C (Paychex Employee Handbook.)
Paychex employees in Plaintiff's department were required to inform a direct supervisor of the need to take time off. (Beligotti-Fenti Dep., at 30.) Plaintiff testified at her pretrial deposition that she has never had any ongoing illness or condition that caused her to utilize sick time. (Id., at 36.) The parties, for the purposes of this motion, agree that Plaintiff's son has autism. (Paychex Mem. of Law, at 3.) During her employment with Paychex, Plaintiff took time off to be with her son, unrelated to his autism, including because a babysitter was unavailable. (See Shinaman Aff., Exh. H (email from Plaintiff to Amy Parrow (Sept. 5, 2006, 8:23 a.m.); Exh. I (email from Plaintiff to Lana Hadzlosmanovic (May 11, 2007, 7:55 a.m.).
Carrie Stella, manager of the ENS Department at Paychex, stated in an affidavit that,
[a]ccording to Paychex personnel practices, when an employee's intermittent absences become excessive and the employee meets the length of service and hours requirements under the Family Medical Leave Act ("FMLA"), the employee is informed of his or her right to apply for FMLA intermittent leave. Pursuant to this practice, Plaintiff was sent an email with information apprising her of her right to apply for FMLA leave on June 28, 2007 and providing her with instructions as to the forms that would need to be submitted. (Stella Aff., ¶ 4.) Plaintiff, however, indicated she did not want to apply for FMLA leave. Stella further related in her affidavit that,
On October 3, 2007, Plaintiffs co-workers reported that Plaintiff made an inappropriate sexual comment to them during a car ride to an annual shareholders' meeting. In response, a sexual harassment investigation was conducted I, in consultation with others, determined that plaintiff was not truthful or forthcoming during the investigation. I determined that based on this conduct, and her prior record unrelated to absences, her employment should be terminated. She was terminated on October 8, 2007. The termination was completely unrelated to her absence record or any FMLA issue.
In my role as Manager and in adherence to Paychex policy, I do not discriminate against employees who apply for and take FMLA leave. Over the past three years, at least 7 employees under my management have taken FMLA, including 5 who have taken intermittent FMLA leave, and none of these employees have been terminated. (Id. ¶¶ 7-8.)
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. ...