The opinion of the court was delivered by: Harold A. Baker United States District Judge
The plaintiff, Joseph M. McMahan, is a former employee of the defendant, North American Lighting, Inc. ("NAL"). He was hired in November 2003 to work in the warehouse at NAL's Paris, Illinois. Initially, McMahan's assigned work shift was from 3:00 p.m. to 11:00 p.m. In 2004, his hours changed and he began to work from 7:00 p.m. to 3:30 a.m. McMahan knew that NAL considered it "mandatory" for its warehouse workers to work overtime as needed.
NAL's "No Fault Point System" assesses points for unexcused absences from work. The program assessed one point against an employee whose unexcused absence totaled four hours or more, and half a point for an unexcused absence of less than four hours. If an employee received seven points in any twelve month period, his or her employment would be terminated. Arriving late and leaving early on the same day were treated as separate occurrences and one point would be assessed for the day. If the employee did not stay for overtime when required, he or she would be assessed half a point. McMahan admits that he was informed of the attendance policy when he was hired, and he knew how the program worked.
NAL employees also receive personal absence days ("PAD"). After the first year of employment, each employee receives twenty-four hours of unpaid PAD time which is credited on the employee's anniversary date. PAD time may be taken in increments of two hours, with requests for PAD time to be submitted in advance except in cases of emergency. According to NAL's Employee Guidebook, "Personal Absence Days do not count towards overtime."
Since childhood, McMahan has had a serious case of asthma.*fn1 McMahan does not think that he had made any requests for FMLA leave before June 13, 2005; however, he does not dispute that, as of that date, he had been assessed a total of four points under the attendance program.*fn2 McMahan claims he had asthma problems in July 2005 and was absent for much of that month. McMahan picked up a FMLA package from NAL's Human Resources Department, had his treating physician complete the forms, and he turned them into his supervisor on or about July 26, 2005. He was approved for intermittent FMLA leave on July 27, 2005. Although McMahan states he missed some work prior to July 2005 due to asthma attacks, he does not believe (or does not remember whether) he ever told anybody at NAL about the asthma attacks prior to July 25, 2005.
McMahan characterizes his asthma condition as no worse after obtaining approval for intermittent FMLA leave than it was before. He does not remember whether he was ever absent in 2003 or 2004 due to asthma problems. However, McMahan had at least nineteen asthma attacks in August through October 2005 and was absent for part or all of nineteen workdays in that time. He claims he notified his supervisor and was granted FMLA leave each time.*fn3
On November 10, 2005, McMahan took FMLA leave and went to the doctor about his asthma. The doctor's notes state: "Joe presents with exacerbation of asthma. He notes chest congestion, cough. He had to miss work. He is in no acute respiratory distress at rest and O2 sat at room is 95%. . . . Chest shows decreased air entry and expiratory rhonchi increased at right base. Respiratory rate 22. . . . Impression: Exacerbation of asthma." The note then discusses treatment for asthma, including an inhaler, Albuterol and nebulizer treatments, prednisone, Cefzil and a recommendation for a chest x-ray if the symptoms did not resolve.
McMahan returned to his doctor on December 14, complaining of shoulder pain. The doctor wrote three notes on prescription medication forms. The first simply says, "Has had recent worsening of asthma recurring absence from work." The second says, "Light Duties - X 2 weeks. No lifting over 15 pounds. No repetitive movement. L Shoulder. DX Bursitis L Shoulder." The third says "Recent episode of anxiety was related to exacerbation of asthma. 12/1/05."
The doctor's December 14 treatment notes mention increased anxiety and panic attacks and increased pain in his left shoulder. Other than a notation that McMahan's chest showed "decreased air entry with rare rhonchi,"*fn4 there is no indication that the doctor noted a worsening of asthma or that asthma caused McMahan to see the doctor that day. During the visit, McMahan didn't tell his doctor about the asthma attack he claims to have had hours earlier, even though it was so severe it required him to leave work, because he had asthma attacks "all the time."
After accumulating unexcused absences on December 1, 6 and 14, 2005, McMahan was terminated for having accumulated seven points in one year. McMahan claims the points were wrongly assessed because those absences were due to asthma and/or related anxiety. NAL contends the points were warranted and denies it interfered with McMahan's FMLA rights.
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is proper when "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must consider the evidence in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The burden of establishing that no genuine issue of material fact exists rests with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470, 473 (7th Cir. 1988). Once the movant has done so, the party opposing the motion bears the burden to respond, not simply by resting on the pleadings, but by affirmatively demonstrating that there is a genuine issue of material fact for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-324.
In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). "If [the non-movant] does not [meet his burden], summary judgment, if appropriate, shall be entered against [the non-movant]." See Fed. R. Civ. P. 56(e).
The FMLA entitles eligible employees to take leave for a period of up to twelve weeks in any twelve-month period because of a serious health condition. 29 U.S.C. § 2612 (a)(1)(D). It is unlawful for an "employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C. § 2615(a)(1). It is also unlawful to "discharge or in any other manner discriminate ...