The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this employment discrimination case, Plaintiff Michael T. Meggison ("Meggison") alleges violations of the Family and Medical Leave Act ("FMLA"), including retaliation. The case is now before the Court on a motion for summary judgment filed by Defendant Paychex, Incorporated ("Paychex") (Docket No. 14). For the reasons stated below, the motion is granted.
The following account is, except where indicated, undisputed. Paychex hired Meggison in the summer of 2003 to work as a Distribution Specialist in the Distribution Department at Paychex' facility in East Rochester, New York. In 2004, Plaintiff began working as an administrative assistant in Paychex's Online Services Department. Meggison's duties involved the performance of various clerical tasks, including faxing and scanning documents. During the time period relevant to this action, Meggison reported to John McDonough ("McDonough"). Upon being hired at Paychex, Plaintiff received and reviewed the Paychex Employee Handbook, which contained terms and conditions of his employment, including Defendant's FMLA leave policy. From time to time, Paychex issued Meggison updates to the Employee Handbook.
In June 2006, McDonough counseled Plaintiff for forcibly opening a break room door and throwing papers down on a desk in front of other co-workers, though Meggison testified at his deposition that he did not recall the incident or the counseling. Plaintiff's annual performance review at the end of June 2006 noted issues regarding his relationships with co-workers, but otherwise graded him four out of a possible five.
On August 7, 2006, McDonough issued Plaintiff a written warning for additional inappropriate behavior involving his co-worker relationships that occurred in June 2006. McDonough Aff. ¶ 4; McDonough Aff. Ex. B (W arning dated Aug. 7, 2006). Plaintiff contends that "the individual who claimed Plaintiff acted in an "unprofessional manner" is the one who initiated the verbal attack on Plaintiff and threw papers around in the fax room." (Meggison Aff. ¶ 19.) Meggison, however, conceded at his deposition that he signed the written warning acknowledging that he engaged in inappropriate behavior, and also acknowledging that he received Paychex' Standards of Conduct and Non-Harassment Policies. (Meggison Dep. 61).
Subsequently, on October 6, 2006, Meggison was counseled for inappropriate interactions with co-workers, including failure to acknowledge them, uncomfortable staring, and other rude behavior. In an October 24, 2006, meeting, McDonough offered Meggison various resources, including the Paychex Employee Assistance Program and a leave of absence. Plaintiff did not follow up with McDonough regarding these offers. Plaintiff acknowledges the disciplinary record, but states [w]ith regards to "not acknowledging other co-workers" Plaintiff was simply attempting to act in a professional manner towards a particular co-worker.
(56.1 Counter ¶¶ 50-51). With regards to allegations that Plaintiff "glared" at co-workers, Plaintiff simply removed his glasses and squinted, this was directed at no person in particular. (56.1 Counter ¶ 52). To avoid future conflict and keep peace Plaintiff apologized to his co-workers. (56.1 Counter ¶ 53). (Pl.'s Response to Def.'s Statement of Facts ¶ 9.) However, Meggison admits that none of the 2006 disciplinary actions were in retaliation for any FMLA-protected activity.
On April 26, 2007, Meggison became ill and took time off from work after developing tumors. On May 9,2007, Paychex Leave of Absence Specialist Teresa Wesley ("Wesley") wrote to Meggison regarding leave and benefits related to his absence. The letter and enclosures included information explaining to Meggison that he qualified for FMLA leave.*fn1 W esley also provided him the Paychex FMLA Policy and Procedure, which contains information on FMLA leave, including intermittent leave, and also provides employees with instructions on how to apply for FMLA. Intermittent FMLA leave is also discussed in the Employee Handbook. (Shinaman Aff. Ex. B, Employee Handbook 14.)
On May 7, 2007, McDonough filled out and approved a Request for Leave of Absence Form for Meggison. Meggison was granted leave-including FMLA leave-from April 25, 2007 to May 14, 2007. Meggison's treating physician cleared him to return to work on May 10, 2007, and Meggison in fact returned to work on May 14, 2007. Meggison contends that he was not ready to return to work, however, but begged his doctor to return him to work so to protect his employment with Paychex. (Pl.'s Response to Def.'s Statement of Facts ¶ 14.)
On May 24, 2007, W esley assisted Meggison with his request to supplement his disability benefits earned while on leave with paid vacation time. Plaintiff responded to an email from W esley expressing his gratitude for her assistance with issues related to his leave of absence.
On June 27, 2007, McDonough counseled Meggison for speaking loudly and making negative comments about a co-worker whom Meggison was accused of having antagonized him. McDonough warned Meggison that if his inappropriate behavior continued, further disciplinary action, up to an including termination, could occur. McDonough once again reviewed with Meggison resources available to him, including EAP and a leave of absence. Meggison did not take advantage of any of these resources.
On September 7, 2007, one of Meggison's colleagues reported to Paychex managers that Meggison, upset with another employee, stated that he wished her house would burn down and that "she would be burned up in the fire." (McDonough Aff. ¶ 12; McDonough Aff. Ex. G (Michelle L. Kimball email to Janet S. Justice dtd Sep. 7, 2007 10:17 AM).) One of Meggison's superiors also reported that Meggison had separately made similar comments to her regarding the co-worker, including that he "hated her," "he wished her house would burn down with her in it," and "he hoped any pregnancies she had would end in miscarriage." (Id.) Plaintiff denies having made any such statements "even remotely similar to the reports contained above." (Pl.'s Response to Def.'s Statement of Facts ¶ 18.)
Meggison was terminated on September 7, 2007, for violation of the Paychex Standards of Conduct Policy based on this incident and his prior inappropriate behavior. (McDonough Aff. ¶ 12; McDonough Aff. Exs. S, G & H.) Paychex' policy provides for discipline, up to and including discharge, where an employee's behavior "interferes with the orderly and efficient operation of a department" by, among other things, "unprofessional behavior" and "disrespect toward fellow employees." (Id.) Meggison responds that the termination letter stated only that he was fired for "Violation of Company Policy." (Pl.'s Response to Def.'s Statement of Facts ¶ 19.) Paychex contends that Meggison's termination was not related to his absence record or any FMLA issue, and Meggison responds that his "termination was directly related to his previous FMLA leave from April -- May 2007, and then his intermittent leave between May 2007 and September 2007, including leave the day prior to his termination. (Pl.'s Response to Def.'s Statement of Facts ¶ 20.) It is undisputed that from the time Meggison returned to work on May 14, 2007, until his termination on September 7, 2007, he periodically took time off totaling fourteen hours.
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 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 (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. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Of course, it is well--settled that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (citations and internal quotations omitted). However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (citations and internal quotations omitted); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
The FMLA entitles an eligible employee to a total of twelve work weeks of leave during any twelve month period "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C) (2008). The Act requires that the employee give at least 30 days' notice to the employer where the leave is foreseeable, or if not foreseeable, then "as soon as practicable." 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.303(a). The leave may be unpaid under the following circumstances:
(c) Unpaid leave permitted. Except as provided in subsection (d), leave granted under subsection (a) may consist of unpaid leave. Where an employee is otherwise exempt under regulations issued by the Secretary pursuant to section 13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an employer with this title [29 U.S.C. §§ 2611 et seq ...