The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Lorraine Margelewski has sued her former employer, Cosco Industries ("Cosco"), for unlawful employment discrimination under the Family and Medical Leave Act, 29 U.S.C. § 2615(a), and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). Cosco has moved for summary judgment on both of Margelewski's claims. For the reasons set forth below, the Court grants Cosco's motion on all of Margelewski's claims except for her ADEA claim concerning her termination.
Margelewski began working for Cosco, part of whose business is producing stamps, as a typesetter in 1994. Although Margelewski's performance evaluations for the last several years she worked for Cosco suggest she lacked "people skills" and was sometimes late for work, they also show that her supervisors generally believed she was competent in her work.
By 2004, the area of Cosco's business in which Margelewski primarily worked-what the parties call "RSM," for rubber stamp manufacturing-had fallen off and Margelewski was spending more than half her work time lending a hand on Cosco's production line. Although this kept Margelewski busy, her supervisors felt it was below her pay grade; her hourly wage was nearly $20, which was apparently significantly higher than the wage for line workers. In 2004, Cosco's management had discussions with Margelewski about reducing her position to part-time or cutting her pay.
In the first half of 2004, Margelewski requested and was granted intermittent FMLA leave, which she used to see to her dying mother and then to help her newly widowed father move in with her. Margelewski took a week of leave in February, two weeks in March, roughly two weeks in April, and then an unspecified number of individual days away until July 2004.
Late in 2004, Cosco's management sought to train Margelewski and other employees who did typesetting work to use software for a growing line of business, which Cosco calls "custom" or "Corporate Express." Cosco's custom work involved typesetting but used different software and resulted in products different from those in the RSM business. Margelewski received some training on the custom business software, primarily from co-workers who had themselves only recently learned the programs. Margelewski did not feel prepared to use the new programs, in part because they were run on PCs and not the Mac computers Margelewski was accustomed to using.
In June 2005, Margelewski was moved to Cosco's customer service department, where her supervisor was Octavio Colon, who in turn reported to William Roy. On October 24, 2005, Margelewski failed to take a break at the time prescribed by a new departmental break schedule. Scott Kendall, a manager in the department, told her about the new schedule and gave her a warning. Kendall believed Margelewski had learned about the new schedule from a department-wide e-mail, but that e-mail apparently had gone to an erroneous address. Margelewski took her break at the wrong time again the next day, and Kendall again sought to give her a warning, this time in the privacy of his office. Margelewski responded to the warning by becoming emotional, raising her voice and saying that she could not work under these conditions. This drew the attention of Colon, who came into Kendall's office and tried to calm Margelewski down, telling her that the warning was unrelated to her performance and had to do with the break schedule only. Margelewski, who at this point felt sick and on edge, then left the building without punching the time clock. She later called Cosco's human resources manager to say she had left work because she was sick and had forgotten to punch out but that she would come back the next day. That evening, however, Margelewski received a letter by courier from Cosco telling her Cosco considered her to have abandoned her job and that she should not return to work. The decision to send the letter came out of a meeting between Colon, Kendall, and Roy that happened shortly after Margelewski left Cosco's facility.
Margelewski was fifty-five years old when her employment with Cosco ended.
Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences drawn in that party's favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).
A. Margelewski's FMLA Claim
Two threshold issues must be addressed before the Court can proceed with the analysis of plaintiff's claim. First, the Court rejects outright Cosco's argument that Margelewski has no FMLA retaliation claim under the terms of the statute because she "received all the FMLA leave to which she was entitled and claims only that after she returned from her leave was she subjected to purportedly adverse employment actions." Def. Br. at 5. That argument is directly contrary to governing Seventh Circuit authority to the effect that an employee who suffers an adverse employment action after returning from leave taken pursuant to the statute may pursue an FMLA retaliation claim. See, e.g., King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); Breneisen v. Motorola, Inc., __ F.3d __, 2008 WL 126034, *4 (7th Cir. 2008) (citing 25 C.F.R. § 825.220(c)) ("[I]f an employee takes FMLA leave, an employer cannot use it as a negative factor in hiring, promotions, or disciplinary actions.").
The second threshold issue is raised by Cosco's argument that none of the relevant Cosco personnel were aware that Margelewski had taken FMLA leave when her employment ended. A defendant cannot be claimed to have retaliated for an employee's protected activity of which it was unaware. See, e.g., Bernier v. Morningstar, 495 F.3d 369, 376 (7th Cir. 2007) (citing Sitar v. Ind. Dep't of Transp., 344 F.3d 727 (7th Cir. 2003)). Margelewski argues that one of the relevant Cosco managers was aware she had taken FMLA leave. Specifically, she says Robert Hylton, her direct supervisor in 2004, knew because he approved the leave and hired Laura Ochoa to replace her temporarily during that period. Hylton also worked with Roy, who had a direct role in ending Margelewski's employment, to prepare her 2004 ...