The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kathleen Ryl-Kuchar ("Ryl-Kuchar") filed on August 29, 2006 a First Amended Complaint, asserting that the defendant Care Centers, Inc. ("Care Centers") retaliated against her for and interfered with her exercise of her rights under the Family Medical Leave Act ("FMLA") and intentionally inflicted emotional distress. Care Centers filed a counterclaim, seeking repayment of Ryl-Kuchar's salary and car allowance, for which summary judgment was granted against Care Centers (Dkt. No. 120). Now Care Centers files a motion for summary judgment on Ryl-Kuchar's claims. (Dkt. No. 107.) For the reasons stated below, the motion is granted in part and denied in part.
Taking all facts and inferences in favor of the nonmoving party, Ryl-Kuchar, the court recites the relevant evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). RylKuchar worked as a full-time dietary consultant at Care Centers visiting various nursing facilities out in the field under the supervision of Bernadette Sanders ("Sanders"), Mark Steinberg ("Steinberg"), Chris Wayer, and Chris Verddin. (Def. L.R. 56.1 Stmt. ¶¶ 1-2.) Ryl-Kuchar discovered she was pregnant with triplets in December 2002, and informed Steinberg around that time that she intended to take maternity leave. (Id. ¶ 3.) When she told Care Centers about her pregnancy, she stated that she did not wish to take leave until after the birth of her triplets if necessary. (Id. ¶ 6.) Some point between January and May 2003, when Barb Balthazor ("Balthazor"), Care Centers' Director of Human Resources, found out that Ryl-Kuchar was pregnant, the two discussed FMLA leave. (Id. ¶ 5.)
Care Centers faxed the FMLA "certification of heath-care provider form" to RylKuchar's doctor. (Pl. L.R. 56.1. Stmt. Exs. F; I at Ex. 1.) The filled-out FMLA certification given to Care Centers by Ryl-Kuchar stated that Ryl-Kuchar's qualifying condition was her pregnancy with triplets. (Id.) Her expected due date was August 25, 2003, and that she may have to work intermittenly or work less than a full schedule because she "will be on bedrest from 25 weeks [arrow] until 2 months post C-section." (Id.) The FMLA certification also stated that "Incapacity will be from May 11th until 2 months post-delivery." (Id.) The FMLA certification was unsigned and undated. (Id.) There is no evidence that Care Centers notified Ryl-Kuchar of any deficiencies in her FMLA certification or asked her to provide additional information.
Due to her pregnancy, Ryl-Kuchar could no longer drive as of some point in May 2002, and she began to work from home as of either May 9, 11 or 22, 2003. (Pl. L.R. 56.1. Stmt. ¶¶ 9-10.) Ryl-Kuchar informed Sanders that she planned to work from home as of May 22, 2003. (Id. ¶ 11.) Ryl-Kuchar also understood a conversation with Steinberg to mean that she could work from home. (Def. L.R. 56.1. Stmt. Ex. 1 at 252.) Ryl-Kuchar, however, did not discuss whether she could work part-time from home with Steinberg. (Id.) In fact, the only conversation that Ryl-Kuchar had with Care Centers regarding whether she could work part-time before the birth of her children was noted in Balthazor's May 13, 2005 "Compliance Review" memorandum submitted to the Department of Labor, where Balthazor states the following:
In February of 2003 Ryl-Kuchar presented a verbal request to work from home so that she could initiate a reduced work schedule and initiate FMLA leave on an intermittent basis. The organization indicated that this would only be possible on an extremely limited basis because of the nature of her position, which required her to be on-site at the facilities. The approval was conditional upon her ability to perform bon-a-fide [sic] work, which was extremely limited. This was a general discussion only. But again RylKuchar was uncertain as to when or if this would be necessary. No time frames were ever indicated from as to when this would be necessary. It was a "what if" conversation. That was the last conversation that was ever initiated by Ryl-Kuchar regarding her FMLA. Although she provided a completed medical certification form she made it very clear that the date she would initiate intermittent leave or continuous leave was uncertain. Again she was informed that she was responsible to notify the organization as soon as possible once she was unable to continue her responsibilities. (Pl. L.R. 56.1 Stmt. Ex. F.) Ryl-Kuchar did not have permission to work part-time after May 22, 2006, yet Ryl-Kuchar worked between 20-34 hours a week from May 22, 2006 until July 25, 2003 while being paid her full time salary. (Id. Ex. I, Exs. 3-15; Def. L.R. 56.1 Stmt. Ex. 1 at 253.) Ryl-Kuchar explained in her deposition, however, that she did not require the bed rest that her health care provider had noted on her FMLA certification form. (Def. Reply L.R. 56.1. Ex. A at 177-78.) Working less than 35 hours a week constitutes part-time work according to Care Centers' Employee Handbook. (Def. L.R. 56.1. Ex. B.) Ryl-Kuchar's hours were documented on time sheets that were incomplete and written by her mother, who was also an employee at Care Centers, based on information provided by Ryl-Kuchar. (Def. L.R. 56.1 Stmt. ¶ 20; Pl. Resp. ¶ 20.) The Care Centers's Employee Handbook requires all employees to maintain an accurate record of all time worked and makes a dischargeable offense the falsifying or alterning of any time-keeping record. (Def. L.R. 56.1. Ex. B.) The parties dispute whether Ryl-Kuchar, by dictating her hours to her mother, falsified records.
On July 16, 2006, more than a month before her expected due date, Ryl-Kuchar gave birth to her triplets. (Pl. L.R. 56.1 Stmt. ¶ 16.) Sometime after the birth, Ryl-Kuchar spoke with Sanders and informed her of Ryl-Kuchar's intention to take maternity leave. (Def. L.R. 56.1. Ex. 1 at 54.) Ryl-Kuchar worked through July 25, 2006 and then took maternity leave. (Def. L.R. 56.1 Stmt. Ex. 1 at 257.) Care Centers paid Ryl-Kuchar her car allowance, even though she was no longer able to drive, and her full salary from May 22, 2003 to July 31, 2003, and withheld her health care premiums. (Pl. L.R. 56.1. Stmt. ¶ 19.)
At some point during Ryl-Kuchar's maternity leave, an audit by Care Centers' health insurance plan, "CCS-VEBA," a plan not administered by Care Centers itself, established that Ryl-Kuchar had not been working full-time before taking maternity leave. (Def. L.R. 56.1. Stmt. ¶¶ 38, 40.) During this period, Balthazor and Sanders telephoned Ryl-Kuchar to discuss that she was overpaid in wages and car allowance. (Def. L.R. 56.1. Stmt. ¶ 55, Ex. F.) Ryl-Kuchar recollects that she responded that she would repay the car allowance if she was not entitled to it. (Def. L.R. 56.1. Stmt. ¶ 55, Ex. F; Pl. L.R. 56.1. Stmt. ¶ 37.) Subsequent to the telephone conversation, Balthazor sent Ryl-Kuchar a letter dated August 27, 2003. (Def. L.R. 56.1. Stmt. ¶ 56.) In the letter, Balthazor stated that Care Centers was investigating overpayments of RylKuchar's salary and car allowance based on evidence that she had not been working since March 1, 2003. (Def. L.R. 56.1. Stmt. Ex. F at Ex. A). The letter formally requested Ryl-Kuchar to provide a detailed summary of the work performed and hours worked since March 1, 2003 within ten days of receiving the letter. (Id.) Ryl-Kuchar did not respond to the letter, and claimed that she never received it. (Pl. L.R. 56.1. Resp. ¶ 56.) Sometime between her conversation with Balthazor and the second week in September 2003, Ryl-Kuchar left three messages with Steinberg asking him to call her back about whether she could work part-time when she returned. (Pl. L.R. 56.1. Ex. A at 92.) Steinberg did not return Ryl-Kuchar's telephone calls. (Id.)
On October 1, 2003, Ryl-Kuchar submitted a written resignation to Care Centers. (Pl. L.R. 56.1. Stmt. ¶ 20.) Following Ryl-Kuchar's resignation, Ryl-Kuchar was notified that her health insurance had been cancelled retroactively effective June 15, 2006. (Id. at 21.) On the COBRA event notification from CCS-VEBA, processed November 19, 2003, CCS-VEBA stated that her benefits terminated on June 15, 2003 due to the qualifying event of "termination of employee employment." (Id. Ex. M.)
The record establishes several possible dates and reasons for Ryl-Kuchar's alleged termination. Ryl-Kuchar asserts that she resigned effective October 1, 2003. Yet, a COBRA event notification processed on November 19, 2003 states that her health plan, CCS-VEBA, terminated her benefits based on the qualifying event of Ryl-Kuchar's employment termination on June 15, 2003. Care Centers denies that Ryl-Kuchar was terminated as of June 15, 2003, despite the COBRA notification based on the qualifying event of her termination, and offers several different dates for Ryl-Kuchar's termination. According to Balthazor's Compliance Review, sometime after the birth of her triplets, Ryl-Kuchar was "discharged for misconduct related to direct payroll violations." (Id. Ex. F; Pl. L.R. 56.1 Stmt. ¶ 29.) In her affidavit, Balthazor states that "The termination of Kathy's employment occurred sometime after the middle of September 2003, when Kathy failed or refused to furnish information which I had requested on or about August 27, 2003" and that "Kathy's employment was not terminated by Care Centers retroactive to mid-June of 2003, or to any other date." (Def. L.R. 56.1. Stmt. Ex. F; Pl. L.R. 56.1 Stmt. ¶ 31.) In a Oppenheimer Funds Distribution Form, Care Centers listed RylKuchar's termination date as August 1, 2003 (not June 15, 2003, or mid-September). (Pl. L.R. 56.1 Stmt. ¶ 28.) Finally, the Federal Rule of Civil Procedure 30(b)(6) deponent for Care Centers, Steinberg, testified in a deposition that Ryl-Kuchar resigned and had not been fired. (Id. ¶ 30.) At no point does the record establish that Care Centers ever notified Ryl-Kuchar that she had been terminated.
After Ryl-Kuchar either resigned or was fired, CCS VEBA sent a COBRA notice to RylKuchar that she did not receive. (Def. L.R. 56.1 Stmt. ¶ 42; Pl. L.R. 56.1. Resp. ¶ 42.) RylKuchar stated in her interrogatory that she discussed her rights under COBRA with Care Centers in October 2003, but later denied any recollection of the statement at her deposition. (Pl. L.R. 56.1. Resp. ¶¶ 59-60; Def. Reply L.R. 56.1. Resp. ¶ 24.) Ryl-Kuchar never elected to continue health care benefits under COBRA. Since Ryl-Kuchar's health benefits were canceled retroactive to June 15, 2003, CCS VEBA required Ryl-Kuchar's health care providers to refund insurance payments made after that date, leaving Ryl-Kuchar liable for those payments. (Pl. L.R. 56.1. Stmt. ¶ 25.)
Based on the cancellation of her health insurance retroactive to June 15, 2003, Ryl- Kuchar filed a First Amended Complaint on August 29, 2006, alleging retaliation due to and interference with the exercise of her rights under the FMLA in addition to intentional infliction of emotional distress. Care Centers filed counterclaims for a return of the wages and car allowance paid to Ryl-Kuchar since March 2003 based on claims of breach of contract and fiduciary duties. The court granted summary judgment on Care Centers's counterclaims in favor ...