The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Defendant's Motion for Summary Judgment,*fn1 and Plaintiff's Motion to Strike Defendant's Reply to Plaintiff's Response.*fn2 Also pending is Plaintiff's Motion to Amend her Complaint,*fn3 to which Defendant responded.*fn4
Plaintiff's complaint*fn5 alleges that Defendant interfered with her rights under the Family Medical Leave Act ("FMLA") and retaliated against her for requesting FMLA leave. Plaintiff also claims that she was terminated in 2004 because of her gender and pregnancy in violation of the Arkansas Civil Rights Act*fn6 and Title VII.*fn7
Defendant denies Plaintiff's allegations and argues that it is entitled to judgment as a matter of law because (1) Plaintiff did not have a "serious medical condition" and was not entitled to FMLA leave in May 2003; (2) Plaintiff was not entitled to FMLA leave in June 2004, because she did not work a total of 1250 hours before she requested time off; (3) Plaintiff did not present sufficient evidence to support a claim of retaliation based on the FMLA; and (4) Plaintiff does not make out a prima facie case for gender or pregnancy discrimination related to the May 2004 termination.
Defendant uses a point system to determine when an employee should be terminated for missing work. If an employee accrues12 points, termination is automatic.
In May 2003, Plaintiff went over the 12 point limit because she injured her hand and missed four days of work (on the recommendation of Dr. Starnes, her treating physician). According to Dr. Starnes, Plaintiff had swelling, bruising, and a decreased range of motion, but had not suffered an injury serious enough to require prescription pain medication. Dr. Starnes ordered Plaintiff to have an x-ray, stay home, take ibuprofen, and keep ice on her hand, but he did not require a follow-up visit.*fn8 Defendant denied Plaintiff's request for FMLA leave, and she was terminated. After this, she filed a union grievance. As a result of the this process, her termination was changed to a suspension without pay, she was reinstated in October 2003, and she was given 11 points for accrued absences.
Plaintiff was fired again in June 2004. This time, Plaintiff missed work due to pregnancy. Under the FMLA, an employee must work 1250 hours in the previous 12 months, before becoming eligible for leave. When Plaintiff took off work, she had not accrued enough hours to be eligible for FMLA leave. She was unable to acquire the requisite number of hours because of her previous suspension.
II. Summary Judgment Standard
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn9 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.*fn10
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an extreme remedy that should only be granted when the movant has established a right to the judgment beyond controversy.*fn11 Nevertheless, summary judgment promotes judicial economy by preventing trial when no genuine issue of fact remains.*fn12 I must view the facts in the light most favorable to the party opposing the motion.*fn13 The Eighth Circuit has also set out the burden of the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e.,"[to point] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.*fn14
Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.*fn15
A. Interference and Retaliation Under the FMLA
Under the FMLA, eligible employees are entitled to take leave from work for certain family or medical reasons, including a serious health condition that causes an inability to work.*fn16
"The FMLA provides eligible employees up to 12 workweeks of unpaid leave during any 12-month period."*fn17
An employer is prohibited from interfering with, restraining, or denying an employee's exercise of or attempted exercise of any FMLA right.*fn18 Interference includes refusing to authorize FMLA leave or discouraging an employee from using such leave. It also includes manipulating the process to avoid responsibility under FMLA.*fn19 "An employer's action that deters an employee from participating in protected activities constitutes an 'interference' or 'restraint' of the employee's exercise of his rights."*fn20 Such conduct gives rise to an the interference theory of recovery.*fn21 In such a claim, the ...