The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment (Dkt. 29). The Court has considered the parties' briefing and oral argument. For the reasons expressed below, the Court will deny the motion in part, and grant in part.
Plaintiff Heather Brennan was employed by Defendant Qwest from June 14, 2006, until she was terminated on December 27, 2007. Brennan's position with Qwest was as a Customer Sales and Service Associate (CSSA). As a CSSA, Brennan answered phone calls from Qwest customers and assisted in customer service issues such as billing, connection problems, and changes to services. According to Qwest, Brennan was terminated for unsatisfactory attendance, including seven different "occurrences" of absenteeism during her year and a half with Qwest. (Defs.' Statement of Facts, Dkt. 29-2, ¶¶ 16, 46.)
Under Qwest's employment policy -- the Occupational Employee Performance Plan (OEPP), absenteeism is defined as unexcused time, or time not covered by the Family Medical Leave Act (FMLA), when the employee is away from normally scheduled work time. (OEPP, Dkt. 29-9 at 31.) Absenteeism excludes tardies, which are addressed separately in the OEPP. An employee is not eligible for FMLA coverage until she has been employed with Qwest for at least 12 months, and has worked at least 1250 hours in the previous 12 months. (OEPP, Dkt. 29-9 at 30.) Under the OEPP, if an employee takes leave that is not entirely covered by the FMLA, such leave is lumped together and counted "as one absence occurrence and one day." (Id. at 31.) A single "occurrence" of absenteeism can include multiple days, which are also recorded under the OEPP.
Under the OEPP, five occurrences and/or eight days of absenteeism within 12 working months is considered "unsatisfactory" performance. (Id.) When performance is unsatisfactory, an employee is subject to progressive disciplinary measures that Qwest calls its Corrective Action Process. (Id. at 23.) Qwest asserts that its FMLA policy was "posted on the company intranet and available to all employees." (Defs.' Statement of Facts, Dkt. 29-2, ¶ 3.) Brennan does not deny this, but states that supervisor Jessica Davis "did not advise Brennan of the availability of [FMLA] until a disciplinary meeting on October 23, 2007." (Pl.'s Statement of Facts, Dkt. 38, ¶ 16.)
In November of 2006, about five months after she started working for Qwest, Brennan was involved in a car accident. (Pl.'s Statement of Facts, Dkt. 38, ¶¶ 1, 3.) As a result of the accident, Brennan suffered injuries, including traumatic brain injury (TBI), that made her unable to work from November 13, 2006 until December 22, 2006. (Id., ¶ 3.) Under the OEPP, because Brennan had not yet worked 12 months or 1250 hours for Qwest, her November and December absence were lumped together and she received one absence occurrence and one day. That occurrence and day were recorded on January 19, 2007.
According to her termination notice, dated December 28, 2007, Brennan was terminated for unsatisfactory attendance which included seven occurrences and 12 days of absences. (Notice, Dkt. 29-11 at 18.) These occurrences are described briefly as follows:
Occurrence DateNumber of DaysBrennan's Reason for Absence
1/19/20071leave following 11/11/2006 car accident
10/19/20072brain lapse related to car accident
10/25/20071brain lapse related to car accident
(Notes of Investigatory Meeting, Dkt. 29-11 at 13-15.)
Brennan brought this suit on May 22, 2009, alleging that Qwest violated the FMLA and the Americans with Disabilities Act (ADA), breached the covenant of good faith and fair dealing, and negligently or intentionally inflicted emotional distress as a result of her termination. Qwest now moves for summary judgment on each of these counts.
One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). However, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.
The Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The Circuit "has repeatedly held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment." Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir.1988).
In her response to this motion, Brennan agrees to dismiss the claim for intentional -- but not negligent -- infliction of emotional distress. (Pl.'s Opp'n at 15.) The Court will dismiss the ...