MEMORANDUM OPINION AND ORDER
In this action, plaintiff Diane Lindemann charges that defendant Mobil Oil Corporation terminated her in retaliation for her prior use of short-term disability benefits (sick leave). Presently pending before the Court are cross-motions for summary judgment. Mobil argues that the reason Lindemann was fired was her many absences, not her use of benefits per se, and that absenteeism is a legitimate, non-discriminatory reason for her termination. Lindemann agrees that she "was discharged solely due to absences," Pl.'s Mem. Supp. of Second Mot. for Partial Summ. J. and Opp. Def.'s Mot. for Summ. J. at 1, but argues that as a matter of law, a discharge based on approved absences that involved the use of benefits (such as those taken by Lindemann) is the same as a discharge based on the use of benefits, and that it violates § 510 of the Employee Retirement Insurance Security Act ("ERISA") because it has the effect of penalizing the employee for a protected use of benefits. Thus, the sole question presented by this motion for summary judgment is an issue of law. For the following reasons, we grant summary judgment in favor of Mobil.
The following facts are taken from the statements of fact submitted by the parties pursuant to Local General Rule 12, and the responses thereto. Diane Lindemann worked for Mobil Oil at its Cicero Lube Plant. Mobil has an employee benefit plan covering short term disability, which provides that employees who are disabled by injury or illness not related to work will be paid their base salary during the disability, adjusted by several factors. See Def.'s Ex. 14, Disability Benefits Program brochure, at 78-79. In order to be receive these benefits, employees need only notify their supervisors as soon as possible, obtain the supervisors' approval for the absence as "an excused absence due to disability," and provide medical evidence of the disability if requested. Id. at 85. At the very end of the section explaining the short and long term disability benefits plans, the program description states, "Neither the existence of the disability plans nor any of their provisions shall restrict the Company's right to terminate employment." Id. at 87.
In late 1992, Lindemann asked Matt Burbach, who was then her supervisor, for time off for a medical procedure related to treatment of a cataract. Burbach approved her request, and Lindemann was absent December 29-31, 1992. Thereafter, Lindemann called in sick on over two dozen days during the next year and a half. Each time she called in sick, her request for sick leave was approved by her supervisor, and she was paid her full base pay, indicating that Mobil considered her absences "excused absence[s] due to disability."
Mobil's attendance policy was a "no fault" policy, i.e., an employee could be penalized for absences regardless of whether they were excused or not. On July 23, 1993, Burbach and Lindemann had a conversation in which Burbach told Lindemann that due to her past absences, she could be disciplined and perhaps even fired if she was absent from work again in the near future. Following additional absences due to illness in August, Burbach and Lindemann had a repeat of this conversation on August 31, 1993. On several occasions, Burbach told Lindemann that the fact that her absences were approved under Mobil's disability benefits program did not excuse compliance with Mobil's attendance policy. On these occasions, Lindemann responded that she felt her excused absences should not count as absences under the attendance policy. Burbach wrote several letters to Lindemann's personnel file regarding Lindemann's ongoing absences, and other matters not relevant here.
In April, 1994, Janet Lieb became Lindemann's supervisor. On May 31, 1994, which was apparently the first time Lindemann asked Lieb for the day off due to illness, Lieb told Lindemann that she really needed Lindemann to come in that day because she was the only one in the department that day. Lindemann remained at home. Lindemann called Lieb the next day as well, asking for another day off due to illness.
Lieb told her immediate supervisor, Plant Superintendent Jim Lewis, that Lindemann's absences were causing her a problem. At Lewis' suggestion, Lieb and Lewis obtained Lindemann's personnel file and reviewed it. Lindemann's personnel file showed that Lindemann had been "counselled" for attendance problems three times, on March 19, 1993, July 31, 1993, and August 31, 1993, and Burbach had written Lindemann a letter stating that it was her "Final Letter of Warning" on November 4, 1993. Lieb and Lewis determined that grounds existed to fire Lindemann for absenteeism. Lieb drafted a letter firing Lindemann, which was approved by Plant Manager John Thomas and the plant's Employee Relations Advisor. The letter stated in pertinent part: "A review of your attendance record for the past 24 months illustrates the factors which resulted in your termination[.] [List of absences.] . . . On many occasions within the past 24 months, you have been given copies of documentation concerning your attendance problem[.] . . . After repeated warnings, you have failed to be at work regularly and on time." The letter fired Lindemann effective June 6, 1994.
The parties agree that Mobil discharged Lindemann in accordance with its attendance program and policy, as expressed in Mobil's "Salaried Attendance Improvement Guidelines," Pl.'s Ex. 5, which provided that an employee could be terminated if she was absent after being counseled twice regarding attendance. Lindemann contends that this policy violates ERISA, as it allows employees to be penalized for absences that are approved and excused uses of their benefits under Mobil's disability benefits program.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Because we find that Mobil is entitled to judgment as a matter of law, we grant summary judgment in its favor.
Lindemann argues that she was discharged in retaliation for her use of short term disability benefits. The parties do not dispute that Mobil's employee benefit plan is covered by ERISA. Section 510 of ERISA provides in pertinent part:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . ..