Opinion
Case No. 03 C 9076.
April 11, 2005
OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment brought pursuant to Federal Rule of Civil Procedure 56(f). For the following reasons, Defendant's Motion for Summary Judgment is granted.
I. BACKGROUND
The court takes the undisputed facts from the parties' Local Rule 56.1 Statements, and notes disputed facts within the text.
A. Facts
Plaintiff Clark Gilmour ("Gilmour") was employed by Defendant Abbott Laboratories ("Abbott") from February 15, 1988 until his dismissal for attendance problems on March 27, 2003. While employed at Abbott, Gilmour was a Senior Maintenance Mechanic. Gilmour worked in various departments, including the Preventive Maintenance Group, and the Vehicle Repair Group. His primary duties included maintenance of company vehicles, such as fork lifts, semitractors and trailers, railroad moving equipment, scooters and bicycles.
Gilmour had problems with attendance, and Abbott first counseled him regarding his absences on March 17, 1993, and March 22, 1994. Then, on February 2, 1996, Gilmour received additional counseling for tardiness and unexcused absences. He concedes, "I may have been close to the Departmental guidelines for incidents." Gilmour again had difficulty with his attendance on September 28, 1998, when his Performance Evaluation included recommendations that Gilmour needed to start work on time, stop unauthorized and excessive breaks, and become aware of Departmental attendance guidelines. A year later, on September 27, 1999, Gilmour's Performance Evaluation stated that he had six incidents relating to tardiness, and was late a total of four times during the one year review period.
George Shorman ("Shorman") was Gilmour's supervisor at Abbott from 2000 until Gilmour's termination in 2003. Shorman reported to David Taylor ("Taylor"), Section Manager for North Chicago Central Services. Taylor, in turn, reported to Dan Fruehe ("Fruehe"), the Manager of North Chicago Maintenance. While Taylor never directly supervised Gilmour, he reviewed Shorman's written evaluation of Gilmour's attendance problems. Eventually, Taylor met with Gilmour and discussed these incidences. After the meeting, Taylor approved Shorman's recommendation to terminate Gilmour.
Between 2000 and 2003, Shorman conducted three performance evaluations of Gilmour. On September 5, 2000, Gilmour was given oral notification of his excessive attendance problems. Gilmour himself acknowledged that his main problems at Abbott were his continued struggles with tardiness and absences from work. Three weeks later, on September 29, Gilmour requested, and was granted, a flexible work schedule, or a "flex schedule." This flex schedule allowed employees to arrive at their discretion, and depart upon completion of their work. Employees under this plan were not required to stay at their jobs from the standard 7:00 a.m. to 3:00 p.m. shift. The flex schedule was a new plan developed by Abbott, and a supervisor's approval was required for an employee to enroll in the plan. Before he was placed on the flex schedule, Gilmour worked five, eight hour work days. On the flex schedule, he only worked four days a week, but for ten hours a day. Gilmour remained on the flex schedule until he was fired from Abbott.
In addition to Shorman and Taylor, Lynne Faragher ("Faragher") was the Manager of Human Resources in Corporate Engineering at Abbott. She reported to Mark Naidicz ("Naidicz"). Faragher was responsible for general human resources duties, employee relations, recruitment, and training. Faragher was also involved in the decision to terminate Gilmour. According to Faragher, the North Chicago Maintenance Group, where Gilmour worked, had attendance guidelines and Gilmour did not meet these requirements. Faragher stated that if an employee had an excessive number of tardies and absences, a warning letter would go to the employee. A manger would review the letter with Faragher prior to delivery to the employee. Although she couldn't recall if she had a phone conversation with him, Faragher met with Gilmour personally, regarding the attendance guidelines and personal counseling. Between 2002 and 2003, Faragher had several meetings with Shorman and Taylor regarding Gilmour's constant absenteeism and tardiness. Furthermore, between April 2, 2001 and April 2, 2002, Gilmour had a total of seven tardies, six hourly sick occurrences, two days plus seven hours of unplanned vacation occurrences.
Then, on June 10, 2002, Gilmour received further counseling for his attendance problems, and was put on notice that continued absences or tardiness could result in his eventual termination from Abbott. On August 5, Gilmour was given a final written warning about his ongoing attendance situation. Shorman met with Gilmour on August 16 to discuss this letter, and had follow up meetings on September 10 and October 10, 2002 to review any progress. Then, on November 5, 2002, Gilmour's doctor retroactively certified him as being incapacitated from October 18, 2002 to November 7, 2002. Subsequently, Gilmour was granted an Intermittent Leave of absence. During this time off, Gilmour continued to work a partial work week. On the days he stayed home, Gilmour was required to call Abbott and inform his supervisors that he would not report to work. On November 6, 2002, Gilmour called his group leader Larry Heg ("Heg") and said that he would be an hour late for work. Gilmour cannot remember if he gave Heg a reason for his late arrival, or if his tardiness was due to drowsiness caused by medication.
Soon thereafter, Gilmour was granted leave pursuant to the Family Medical Leave Act (the "FMLA") from November 7, through November 22, 2002. Upon his return to Abbott, Gilmour resumed his regular work schedule, including regular pay and duties. However, on December 24, 2002, Gilmour experienced yet another problem with his attendance. When Gilmour called Abbott, he informed Mr. Heg that he would be late as a result of an apparent knife fight between Gilmour's son and daughters.
This is not the medical leave at issue in this case.
On January 28, 2003, Shorman received notification that Gilmour was granted another FMLA leave, which was set to begin on February 6. At the time, Shorman was awaiting a decision from Regina Warmouth ("Warmouth"), the Leave Coordinator in the Family Leave Center (hereafter the "FMLA office") at Abbott as to which of Gilmour's absences were covered under the FMLA. Warmouth was then in charge of coordination of family and medical leave for Abbott employees at the Lake County, Illinois corporate office. She was responsible for the approval or denial of FMLA requests. In order to be granted medical leave, the employee must submit a medical certification from a treating physician, in addition to satisfying certain criteria set out in the federal regulations. Such criteria include: greater than three calendar days incapacitation, inpatient or overnight stay within a health care facility, pregnancy, treatment with a licensed physician, prescription medication provided or written, follow up office visits and treatment plans. See 29 U.S.C. § 2613(b). Furthermore, the Family Leave Center determines whether the condition is either chronic or ongoing. Warmouth spoke to Gilmour about his pending FMLA request for February 6, and Gilmour indicated that he did not receive the initial forms when he requested medical leave.
Abbott has a set procedure to notify supervisors if an employee has requested medical leave. Typically, an employee's supervisor and the Human Resources department would receive an e-mail from the FMLA office notifying them of the employee's request. In addition, Faragher would receive a copy of the initial request and the decision as to whether the medical leave was approved. The e-mail would include the name of the employee and the date by which supporting medical information was to be supplied. The FMLA office worked with an outside vender, Kemper, who would actually determine if the medical documentation supported the FMLA request. Furthermore, the FMLA office determines whether tardiness or absences are FMLA approved. At the time Gilmour requested medical leave, the FMLA office at Abbott was severely backed up, and as a result, there was a lag in rendering decisions.
On January 16, 2003, Warmouth wrote to Faragher to advise Gilmour that his tardies on November 6 and December 23, 2002 were not covered under the FMLA. Gilmour subsequently appealed this determination. Then, on January 30, 2003, Shorman, Faragher, and Naidicz met to review Gilmour's file. At that meeting, Shorman agreed to arrange a discharge work sheet and initiate Gilmour's termination. Abbott's reason for not terminating Gilmour on January 30 is that Faragher and Naidicz still required a determination from the FMLA office as whether the November 6, 2002 and December 24, 2002 tardies were covered under the FMLA. On January 31, 2003, Faragher met with both Gilmour and Shorman it discuss these incidents. Gilmour reiterated that he was late to work on November 6 because his medication made him drowsy, and he was late on December 24 because of a family altercation. After this meeting, Faragher met with Naidicz and other managers to discuss Gilmour's termination. Naidicz's job was to verify that Faragher or himself met with the management team to insure that they all agreed Gilmour should be fired. Naidicz had the final authority to approve Gilmour's termination. In addition, on January 31, Shorman drafted a letter to Gilmour in regards to his termination. The letter was not sent because Shorman required approval from the Human Resources Department.
Then, on March 20, 2003, Gilmour was cleared to return to work, but was not allowed to lift anything over 20 pounds. Shorman notified Taylor and Faragher of Gilmour's return to work, and what action Shorman should take, because Gilmour was under review for termination. Gilmour was eventually fired from his position at Abbott on March 27, 2003. According to Abbott, he was not fired earlier because Gilmour had appealed the November and December incidents to the FMLA office. After Gilmour was notified of his termination, he met with Taylor and Shorman. They told Gilmour he was fired as a result of his constant absenteeism and habitual tardiness over the course of his employment at Abbott.
B. Procedural History
Gilmour filed a one count Complaint on December 17, 2003, in which he alleged retaliatory discharge for exercising his rights under the FMLA. Abbott filed its Motion for Summary Judgment on January 28, 2005. Gilmour filed his Response on March 7, and Abbott filed its Reply on March 21, 2005. Abbott's Motion for Summary Judgment is fully briefed and before the court.
II. DISCUSSION
A. Standard of Review
Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Szymanski v. Rite-Way Lawn Maintenance Co., 231 F.3d 360, 364 (7th Cir. 2000); see also Vukadinovich v. Bd. of Sch. Tr.'s of North Newton School, 278 F.3d 693, 699 (7th Cir. 2002).
In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See FED. R. CIV. P. 56(c); see also Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1108 (7th Cir. 2004). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280 (1968);Spiegla v. Hall, 371 F.3d 928, 935 (7th Cir. 2004). The choice between reasonable inferences from facts is a jury function.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
When a party moves for summary judgment, the court must view the record and all inferences in a light most favorable to the non-moving party. Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences construed in the non-moving party's favor must be drawn from specific facts identified in the record that support that party's position. See Szymanski, 231 F.3d at 364. Under this standard, "[c]onclusory allegations alone cannot defeat a motion for summary judgment." Thomas v. Christ Hospital and Medical Center, 328 F.3d, 890, 892-93 (7th Cir. 2003) (citingLujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89 (1990)).
B. The Substantive Law
1. Retaliation Claims under the FMLA
The FMLA states in part, "an . . . employee shall be entitled to a total of 12 work weeks of leave during any 12-month period for one or more of the following: . . . because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D)(2003). The FMLA, therefore, requires health-related leave only for employees who suffer from "a serious health condition." Id; Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001). To establish the existence of such a condition an employee must submit medical certification. 29 U.S.C. § 2613(a); see Diaz v. Ft. Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997). Moreover, an employee who returns from medical leave is "entitled to be restored by the employer to the position of employment held by the employee when leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and others and conditions of employment." 29 U.S.C. § 2614(a)(1)(A)-(B).
In addition to substantive rights, the FMLA provides that "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 subchapter." 29 U.S.C. § 2615(a)(1);see Haefling v. United Parcel Service, Inc., 169 F.3d 494, 498 (7th Cir. 1999). The statute prohibits an employer for discriminating or retaliating against an employee who exercises his or her rights under the FMLA. See King, 891.
In Diaz, the court held that the McDonnell Douglas framework does not apply to cases in which an employee alleges a deprivation of the FMLA's substantive guarantees by an employer. 131 F.3d at 712; see also King v. Preferred Technical Group, 166 F.3d 887, 991 (7th Cir. 1999). Gilmour's Complaint only contains a count for retaliation, and therefore theMcDonnell Douglas analysis is applicable to the case at bar. Compl., at 2.
In order to proceed in a claim of retaliatory discharge under the FMLA, a plaintiff may proceed under the direct method of proof, or indirect burden-shifting framework. King, 166 F.3d at 892. Under the indirect burden-shifting method, courts in the Seventh Circuit apply the McDonnell Douglas burden-shifting framework to "claims that an employer discriminated against an employee exercising rights guaranteed by the FMLA." Id; see Horwitz v. Bd. of Educ. of Aroca School Dist. No. 37, 260 F.3d 602, 616 (7th Cir. 2001). A claim of FMLA retaliation is assessed "in the same manner that we would evaluate a claim of retaliation under other employment statutes, such as the ADA or Title VII." Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004).
In order to establish a prima facie case for retaliation under the indirect evidence method, the plaintiff must show that: (1) he engaged in protected conduct; (2) was subject to adverse employment action; (3) he was performing his job satisfactorily; and (4) no similarly situated employees who did not engage in protected activity were subjected to an adverse employment action. Buie, 366 F.3d at 503 (quoting Rogers v. City of Chicago, 320 F.3d 748, 750 (7th Cir. 2003)); see Hudson v. Chicago Transit Authority, 375 F.3d 552, 560 (7th Cir. 2004) (quoting Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 644 (7th Cir. 2002)); see also McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Failure to satisfy any one element of the prima facie case is fatal to an employee's retaliation claim. Hudson, 375 F.3d at 560 (citing Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002)).
A plaintiff engages in protected activity when he or exercises medical leave rights under the FMLA. See 29 U.S.C. § 2615(a)(1). Additionally, "an adverse employment action is a significant change in employment status, such as hiring, firing . . . or a decision causing a significant change in benefits."Herron v. DaimlerChrysler, 388 F.3d 293, 300, n. 1. (7th Cir. 2004). Lastly, a plaintiff must "demonstrate that a `similarly situated' employee is someone who is directly comparable to him in all material aspects." Id. The court must "look to all relevant factors, the number of which depends on the context of the case." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000)). Relevant factors include "whether the employees `dealt with the same supervisor' and were `subject to the same standards.'" Id. Additionally, the court must inquire as to whether the employees had "comparable experience, education, and qualifications, provided that the employer took these factors into consideration when making the personnel decision in question." Id.
After the plaintiff has set forth his or her prima facie case, the burden shifts to the employer to demonstrate a legitimate reason for the action. Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000). If the defendant satisfies this burden, then the burden shifts back to the plaintiff to articulate that the reasons proffered by the defendant were pretextual. Id;McDonnell-Douglas, 411 U.S. at 804; Herron, 388 F.3d at 301. Moreover, if the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Buie, 366 F.3d at 503 (quoting Rogers, 320 F.3d at 750). To establish pretext, the plaintiff may show that the reason given by the employer are factually baseless, were not the actual motivation for the decision, or were insufficient to motivate the decision. Stewart, 207 F.3d at 378. With these principles in mind, we turn to Abbott's Motion for Summary Judgment.
2. Gilmour has not established a prima facie case of retaliation under the FMLA
As a preliminary matter, Gilmour has failed to satisfy the similarly situated element in his prima facie case of retaliation. "Failure to satisfy any one element of the prima facie case dooms an employee's retaliation claim." Mitchell v. Dutchman Mfg., Inc., 389 F.3d 746, 750 (7th Cir. 2004) (citingHudson, 375 F.3d at 560)). However, with an abundance of caution, the court analysis each element of Gilmour's prima facie case. It is undisputed that Gilmour both had engaged in a protected activity, by virtue of his request for medical leave under the FMLA, and that he suffered an adverse employment action, as demonstrated by his termination from Abbott.
However, it is under the third and fourth prongs of the retaliation claim that Gilmour encounters problems. Under the third element, Gilmour must show that he was performing his job satisfactorily. Gilmour cannot rest on his own deposition, or self-serving affidavits to meet his burden of proof. "Self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (quotingSlowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993)); see also Fanslow v. Chicago Mfg. Center, Inc., 384 F.3d 469, 483 (7th Cir. 2004). At the summary judgment stage, "the party opposing a motion for summary judgment must take reasonable steps to provide the district court sufficient evidence to create a genuine issue of material fact." Shank, 192 F.3d at 683 (citing Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 503-04 (7th Cir. 1999) (indicating that summary judgment is the "put up or shut up" moment in a lawsuit)). However, self-serving affidavits may be sufficient if they are based on personal knowledge supported by facts in the record that create a genuine issue of material fact. See Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003).
Here, Gilmour has submitted his personal performance reviews from Abbott to accompany his own statement that he had performed his job satisfactorily. See Pl.'s Resp., Ex. F; Ex. G; Ex. H; Ex. I; Ex. J. Such materials do not raise a genuine issue of material fact because Gilmour has failed to establish at least one element of his prima facie case. See Hudson, 375 F.3d at 560. According to these reviews, Gilmour had performed his job to Abbott's expectations, and had not received any severe disciplinary action, notwithstanding the habitual tardiness and counseling for his attendance problems. In spite of Gilmour's attendance record, Shorman felt that Gilmour's performance was satisfactory. Therefore, Gilmour's assertions in his deposition are not merely self-serving. The accompanying Performance Reviews support his claim that he performed his job satisfactorily.
Under the last prong of a retaliation claim, Gilmour must show that similarly situated employees who had a similar amount of absences and tardies, yet did not take medical leave were not fired. See Buie, 366 F.3d at 503; see also Patterson, 281 F.3d at 680 (internal citations omitted). Similarly situated does not mean two employees have similar jobs; the employees must be directly comparable to the plaintiff in all material aspects.Id; see Herron, 388 F.3d at 301. It is this element that gives Gilmour the most difficulty.
Here, Gilmour alleges that during the time Shorman directly supervised him, "each of the other employees supervised by Shorman were held to the same standards and responsibilities in terms of tardiness and attendance." Pl.'s Stmt. of Mat. Facts, ¶ 155. However, this allegation misstates Shorman's actual testimony. At his deposition, the question posed to Shorman was: "When in the position that you had when you supervised Mr. Gilmour, there were a number of other people that you supervised. And you had the same responsibilities in terms of tardiness, and attendance responsibilities and accountability, correct?" Pl.'s Resp., Ex. B, at 80. Shorman answered, "[Y]es." Id. The actual testimony says nothing about the attendance habits or standards that other Abbott employees were held to in relation to Gilmour. It only speaks to Shorman's responsibilities within his department. This is insufficient to satisfy Gilmour's burden of proof that other employees were similarly situated.
There are yet additional discrepancies in Gilmour's Motion that do no support a finding that other employees at Abbott were similarly situated. Gilmour lists several other employees who were not fired, yet had a high percentage of absences, such as William Vandergrift ("Vandergrift"), a Senior Pipe Fitter, Kevin Deram ("Deram") and Chester George ("George"), Senior Mechanics, and Scott Christopher ("Christopher"), Group Leader for the Lubricators Group. Pl.'s Stmt. of Mat. Facts, ¶¶ 149, 150, 154. Gilmour does not explain exactly who these employees are, only what their positions were at Abbott, and the fact that they had high percentages of absences in their departments. Gilmour submits no information as to these employees' education, background, and qualifications. See Patterson, 281 F.3d at 680. Without such evidence, the other employees cannot be considered similarly situated. See Herron, 388 F.3d at 300. Additionally, Vandergrift is a Senior Pipe Fitter, a job completely different from Gilmour's, which is enough to state that the two workers are not similarly situated. Furthermore, Christopher was a Group Leader, while Gilmour was a Senior Maintenance Mechanic. A Senior Maintenance Mechanic, who is not a supervisor, and who was primarily responsible for vehicle maintenance, cannot be considered similarly situated to a Group Leader in a separate group. As a result, Gilmour has not satisfied this element of his prima facie case, and his retaliation claim is doomed. See Mitchell, 389 F.3d at 750.
3. Abbott's Legitimate Reason for Gilmour's Termination
Despite Gilmour's failure to establish each element of his retaliation claim, with an abundance of caution, the court will analyze the burden-shifting analysis of Defendant's Motion for Summary Judgment.
Assuming, arguendo, that Gilmour establishes his prima facie case, Abbott is required to put forth a legitimate reason for Gilmour's termination. See Stewart, 207 F.3d at 376. Here, Abbott alleged that it fired Gilmour because of his habitual absence problems. Despite Gilmour's absences and tardiness, which started in 1993, and lasted an entire decade until his eventual termination in 2003, Abbott made several attempts to allow Gilmour back to work. He was allowed to participate in the flex schedule plan, and had numerous counseling sessions with Faragher and Shorman. The facts show that Gilmour did not conform to Abbott's attendance requirements, and after several efforts to help him and solve the problem, Abbott decided Gilmour was not an employee it wanted to retain. Gilmour was given numerous opportunities to conform to the company's attendance policy, yet he failed to do so.
Furthermore, Gilmour has not shown how Abbott retaliated against him for taking FMLA leave, when Abbott granted Gilmour similar medical leave in November 2002. Gilmour does not address the question of why Abbott would retaliate against him for exercising his rights under the FMLA in 2003, but not in 2002. Moreover, Gilmour's own statements show that he knew Abbott was concerned about his attendance problems. See Def.'s Stmt. of Mat. Facts, Ex. A., at 102. Therefore, Abbott has established a legitimate reason for the decision to terminate Gilmour.
4. Gilmour's Pretext Argument
After Abbott has established its legitimate reason for termination, Gilmour is required to show that the proffered reason is pretextual. See Stewart, 207 F.3d at 376; see also Herron, 388 F.3d at 301. "The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered." Stewart, 207 F.3d at 378 (quoting Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999)). The court will not "sit as a superpersonnel department that reexamines an entity's business decision and reviews the propriety of the decision." Id. Moreover, it is not sufficient to prove that the reason was doubtful or mistaken.Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 541 (7th Cir. 1998). Pretext does not mean simply a mistake, but instead a lie, "specifically a phony reason for some action." Id (quoting Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996)). The only concern is whether the legitimate reason provided by Abbott is in fact an honest one. See Stewart, 207 F.3d at 378.
Here, Gilmour alleges that Abbott's reason is merely pretext because he was fired while on FMLA leave. However, Abbott has explained that the reason for the delay in termination was a result of the severe work load in the company's FMLA office, and the need for Shorman to wait until he received a determination as to whether Gilmour's absence of November and December 2002 were covered under the FMLA. The fact that Gilmour was actually terminated while on medical leave is irrelevant. The procedure to terminate Gilmour started long before his medical leave of February 2002. Gilmour has presented no evidence that would cast doubt on the veracity of Abbott's reason for termination, or that any of his managers did not honestly believe Gilmour was terminated because of his attendance record. Based on the established elaborate procedures Abbott implements when it terminates an employee, Gilmour has failed to show any basis to alter the judgment of those individuals who had worked closely with, and tried to solve, unsuccessfully, Gilmour's attendance problems for almost ten years. Id. Therefore, Gilmour has failed to satisfy the similarly situated element of his retaliation claim, and additionally has not shown that Abbott's proffered reason for termination was pretextual. As a result, there are no genuine issues of material fact in this case, and summary judgment is proper as to Abbott.
III. CONCLUSION
For the foregoing reasons, the court grants Defendant's Motion for Summary Judgment.IT IS SO ORDERED.