Full opinion text
ORDER VINING, Senior District Judge. The plaintiffs Motion to Exceed Page Limitation and Correct Record Testimony [Doc. No. 300] is GRANTED; the defendants’ Motion for Leave to Increase Page Limit [Doc. No. 301] is GRANTED. After making a de novo review of the record and after carefully considering the report and recommendation of the magistrate judge, together with the objections thereto, the court receives it with approval and adopts it as the opinion and order of this court. FELDMAN, United States Magistrate Judge. Attached is the Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and this Court’s Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties. Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period. MAGISTRATE JUDGE’S FINAL REPORT, RECOMMENDATION AND ORDER History of the Case Part One This is a civil rights employment discrimination case filed pursuant to Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.) (hereinafter “Title VII”) by Terry Bozeman (hereinafter “the Plaintiff’), who was employed as the Human Resources Director of Per-Se Technologies, Inc. in the eHealth Solutions Division, against defendants Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. (hereafter collectively referred to as “Per-Se”), and Per-Se employees Phillip M. Pead (hereafter referred to as “Pead”), Charles Moore (hereafter referred to as “Moore”), and William N. Dagher (hereafter referred to as “Dagher”). In his Second Amended Complaint filed on June 23, 2004 [Doc. 43], the Plaintiff alleges that the defendants violated his civil rights by (1) retaliating against him in violation of Title VII (i.e., causing him to suffer adverse employment actions including threats, harassment, intimidation, humiliation, reduction and/or elimination of job functions, reduction in status and constructive discharge) because of (a) his participation in investigations of alleged discrimination committed by the defendants against other company employees [Doc. 43, ¶¶ 18-19, 21-29], and (b) alleging that Per-Se filed inaccurate required federal employer reports and concealed evidence of its commitment to equal employment opportunity laws from the Government [Id. at ¶¶ 20, 54, 71]; (2) intentionally inflicting emotional distress upon him in violation of Georgia law [Id. at ¶¶ 106-121]; (3) negligently supervising, retaining, and hiring employees in violation of Georgia law [Id. at ¶¶ 122-130]; and (4) violating the Sarbanes-Oxley Act (18 U.S.C. § 1514A) by retaliating against him for reporting financial irregularities to the Securities and Exchange Commission (“SEC”) [Id. at ¶¶ 131-143]. On July 9, 2004, the defendants filed their Answer to the Plaintiffs Second Amended Complaint [Doc. 48]. In their Answer, Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. asserted three Counterclaims against the Plaintiff, to wit: (1) damages for computer theft and computer trespass in violation of O.C.G.A. § 16-9-93; (2) conversion; and (3) attorney’s fees and expenses of litigation incurred in bringing these Counterclaims. See [Doc. 48, pp. 48-53]. Presently pending before the undersigned are (1) the Plaintiffs February 1, 2006 Motion for Partial Summary Judgment, Brief in Support thereof, Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 210], and supporting exhibits [Doc. 211] (hereafter referred to as “PX-”), including a copy of the parties’ Stipulation of facts (PX-1); excerpts from the depositions of Karen Baker (“Baker Depo.”) (PX-2), Dan Swaine (“Swaine Depo.”) (PX-3), Charles Moore (“Moore Depo.”) (PX-4), William Dagher (“Dagher Depo.”) (PX-5), Liesl Rowe (“Rowe Depo.”) (PX-6), Jackie Jackson (“Jackson Depo.”) (PX-7), Phil Pead (“Pead Depo.”) (PX-8), and Kellen Jame-son (“Jameson Depo.”) (PX-9); and the Plaintiffs Affidavit (“PLAff.”) (PX-10). On March 9, 2006, the defendants filed their (2) Response in Opposition to Plaintiffs Motion for Partial Summary Judgment [Doc. 262], including their Response to Plaintiffs Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 263], and (3) their Notice of Objection to the Plaintiffs Affidavit, and Motion to Strike the Plaintiffs Affidavit with an incorporated Brief in Support thereof [Doc. 261]. On March 23, 2006, the Plaintiff filed his (4) Response to Defendants’ Motion to Strike the Plaintiffs Affidavit and Brief in Opposition thereto [Doc. 265], to which the defendants (5) replied on April 10, 2006 [Doc. 276]. Also pending before this Court are (6) Per-Se’s February 6, 2006 Motion for Summary Judgment, Brief in Support thereof, and Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Docs. 223, 227]. In addition, on February 6, 2006, defendants Pead, Moore, and Dagher filed individual ((7),(8), (9)) Motions for Summary Judgment and Briefs in Support thereof [226, 229, 225, 230, 224, 231]. The defendants also filed a joint Appendix in Support of their Motions for Summary Judgment [Doc. 228] with supporting exhibits (hereafter referred to as “DX-”), including the deposition excerpts of Terry Bozeman (“PI. Depo.”) (DX-1), William Dagher (“Dagher Depo.”) (DX-2), Charles Moore (“Moore Depo.”) (DX-3), Kellen Jameson (“Jame-son Depo.”) (DX-4), Karen Baker (“Baker Depo.”) (DX-5), Dan Swaine (“Swaine Depo.”) (DX-6), Jennifer Bender (“Bender Depo.”) (DX-7), Liesl Rowe (“Rowe Depo.”) (DX-8), Tracy Fried (“Fried Depo.”) (DX-9), and Patrick Coleman, M.D. (“Coleman Depo.”) (DX-10); the declarations of Dan Swaine (“Swaine Deck”) (DX-11), Maria Dress (“Dress Deck”) (DX-12), Karen Baker (“Baker Deck”) (DX-13), Matthew Myers (“Myers Deck”) (DX-14), and Kellen Jameson (“Jameson Deck”) (DX-15); Plaintiffs Responses to Defendant Per-Se Technologies, Ine.’s Amended First Interrogatories to Plaintiff (DX-16); and the Plaintiffs Responses to Defendant Per-Se Technologies, Inc.’s First Request for Admissions (DX-17). Subsequent thereto, (10) the Plaintiff filed his February 21, 2006 Response to defendants Moore, Dagher, and Pead’s individual Motions for Summary Judgment and Brief in Opposition thereto [Doc. 287], his March 15, 2006 Memorandum in Response to the Defendants’ Motions for Summary Judgment [Doc. 255], Responses to Defendants’ Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Doc. 257], and his own Statement of Material Facts in Support of the Denial of Defendants’ Motions for Summary Judgment [Doc. 256], and (11) his February 24, 2006 Cross-Motion for Summary Judgment as to Per-Se Technologies, Inc.’s Counterclaim, Brief in Support thereof, and Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Docs. 240-1, 240-2]. On March 20, 2006, (12) the defendants filed a Motion to Strike Plaintiffs Cross-Motion for Summary Judgment with respect to Defendant Per-Se Technologies, Inc.’s Counterclaim, and Brief in Support thereof [Docs. 259-1, 259-2], and (13) their Response in Opposition to the Plaintiffs Cross-Motion for Summary Judgment (as to Defendant Per-Se Technologies, Inc.’s Counterclaim) [Doc. 260]. On March 23, 2006, (14) the Plaintiff filed his Response to Defendants’ Motion to Strike his own Cross-Motion for Summary Judgment and Brief in Opposition thereto [Doc. 264], to which (15) the defendants replied on April 10, 2006 [Doc. 277]. Furthermore, (16) on April 7, 2006, the defendants filed their Response to Plaintiffs Statement of Material Facts in Support of Denial of Defendants’ Motions for Summary Judgment [Doc. 275], and (17) their Reply Briefs in Support of their Motions for Summary Judgment [Docs. 274, 271, 272, 273]. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT In his Motion for Partial Summary Judgment, the Plaintiff contends that he is entitled to summary judgment on his (1) Title VII retaliation claims because under the authority of Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), he can make out a prima facie case showing that a retaliatory motive played a part in the defendants’ adverse employment actions taken against him (i.e., a mixed-motive theory); and his (2) constructive discharge claim under the authority of Penn. State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). See [Doc. 210]. PER-SE’S MOTION FOR SUMMARY JUDGMENT In their joint Motion for Summary Judgment (hereinafter “MSJ”), Per-Se contends that (I) the Plaintiff cannot make out a prima facie case of retaliation under Title VII and Sarbanes Oxley because (a) he has failed to establish that he suffered any actionable adverse employment action, (b) he has failed to establish that his alleged protected activity contributed to Per-Se’s employment actions, and (c) Per-Se would have taken the same actions against the Plaintiff even in the absence of the Plaintiffs alleged protected activity. In addition, Per-Se further contends that (II) it had legitimate, nondiscriminatory reasons (“LNDR”) for its employment actions; (III) the Plaintiff cannot show that Per-Se’s legitimate, nondiscriminatory reasons for its employment actions were pretexts for retaliation; (IV) the Plaintiffs Title VII retaliatory hostile work environment claim fails as a matter of law because he has failed to establish a hostile work environment; (V) the Plaintiffs constructive discharge claim fails because his working conditions were not so intolerable that a reasonable person would have felt compelled to resign; (VI) the Plaintiff cannot make out a prima facie case of intentional infliction of emotional distress against Per-Se pursuant to state law because, inter alia, he failed to: (a) show that Per-Se engaged in “extreme or outrageous” conduct, (b) show that he suffered severe emotional distress, and (c) establish Per-Se’s liability for its employees’ actions under a theory of respondeat superior; and (VII) the Plaintiff cannot make out a pri-ma facie case of negligent retention in violation of Georgia state law. PEAD, MOORE, AND DAGHER’S MOTIONS FOR SUMMARY JUDGMENT In their Motions for Summary Judgment, Pead and Dagher contend that (I) the Plaintiffs claim for intentional infliction of emotional distress fails because: (a) Pead and Dagher are not liable for the actions of their fellow employee Moore, and (b) Moore’s conduct, was not, in any event, “extreme or outrageous”; and (II) the Plaintiffs retaliation claim, in violation of Sarbanes-Oxley, fails because, inter alia, he: (a) failed to exhaust his administrative remedies, (b) failed to make out a prima facie case of retaliation because (1) he cannot establish that Pead knew that the Plaintiff had engaged in any alleged protected activity by the Plaintiff while the Plaintiff was employed with Per-Se, (2) Dagher has established that all employment actions taken by Per-Se with regard to the Plaintiff would have been taken by Per-Se in the absence of any alleged protected activity by the Plaintiff, (3) the Plaintiff failed to establish that he suffered any actionable adverse employment action, and (4) the Plaintiff failed to establish a causal connection between any alleged protected activity which the Plaintiff took, and any alleged adverse employment actions taken against him [Docs. 229, 231]. In his Motion for Summary Judgment, Moore contends that (I) the Plaintiffs intentional infliction of emotional distress claim fails because the Plaintiff, inter alia, failed to (a) show that Moore engaged in any “extreme or outrageous” conduct against the Plaintiff, and (b) show that he suffered severe emotional distress [Doc. 230]. PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AS TO PER-SE TECHNOLOGIES, INC.’S COUNTERCLAIM In his Cross-Motion for Summary Judgment, the Plaintiff contends that Per-Se Technologies, Inc.’s Counterclaims should be dismissed because Per-Se Technologies, Inc. has failed to state a valid cause of action for the alleged deletion of information from the Plaintiffs company-issued laptop computer [Doc. 240 — l]. The Issues Part Two I. Whether the Plaintiff can make out a prima facie case of retaliation against Per-Se under Title VII. II. Whether Per-Se has articulated legitimate, nondiscriminatory reasons (LNDR) in support of its employment actions. III. Whether the Plaintiff has proved or created a disputed material issue of fact as to whether Per-Se’s legitimate, non-discriminatory reasons were pretexts for retaliation. IV. Whether the Plaintiff can make out a pyima facie case of retaliatory constructive discharge against Per-Se in violation of Title VII. V. Whether the Plaintiff has failed to exhaust his administrative remedies with regard to his Sarbanes-Oxley Act claims against Pead and Dagher. VI. Whether the Plaintiff can make out a prima facie case of retaliation against Per-Se in violation of the Sarbanes-Oxley Act. VII. Whether the Plaintiff can make out a prima facie case of intentional infliction of emotional distress against the defendants under Georgia law. The Facts Part Three In support of their respective positions, the parties have submitted, inter alia, their Statements of Disputed and Undisputed facts as required by Local Rule 56.1(B), N.D.Ga., from which properly supported material facts of this matter are culled. The defendants have filed Statements of Material Undisputed Pacts [Docs. 227, 229, 230, 231] in support of their Motions for Summary Judgment, and the Plaintiff has filed his Responses to their Statements of Material Facts as to Which There are No Genuine Issues to be Tried [Doc. 257]. The Plaintiff has also filed a Statement of Material Facts in support of the denial of defendants’ Motions for Summary Judgment [Doc. 256], and the defendants have filed their Response to the Plaintiffs Statement of Material Facts [Doc. 275]. In addition, the Plaintiff filed his Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 210] in support of his Motion for Partial Summary Judgment, and the defendants have filed their Response to Plaintiffs Statement of Material Undisputed Facts [Doc. 263]. In SubPart I, this Court sets out the Undisputed Facts as drawn from the defendants’ Statements of Material Facts as to Which There are No Genuine Issues to be Tried to the extent that the Plaintiff has not properly disputed these facts. To the extent that they are not duplicative or disputed by the defendants, in SubPart II, this Court sets out the Plaintiffs Facts as Drawn from his Statements of Material Facts. This Court must deem admitted those facts in the party’s statement that are uncontroverted by the opposition. LR 56.1 B(2) NDGa. In SubPart III, this Court sets out the Disputed Facts. To the extent possible, except for clarity, this Court will use the parties’ own wording. I.The Undisputed Facts 1. Per-Se is engaged generally in the business of providing medical billing and collection services technology to hospitals, physician groups, and individual physicians. (Second Amended Complaint (hereafter “S.A. Compl.”), [Doc. 43, ¶ 12]). 2. During the Plaintiffs active employment with Per-Se, Per-Se operated primarily through three subsidiaries, often referred to as “divisions,” to wit: (1) eHealth Solutions Division; (2) Physician Services Division; and (3) Application Software Division. (Swaine Decl., [Doc. 228, ¶ 4]). The eHealth Solutions Division was in fact the corporate subsidiary known as Per-Se Transaction Services, Inc. (hereafter “PSTS”). (Id.) 3. At the time of his resignation with Per-Se, the Plaintiff was the Director of Human Resources (hereafter “HR”) for the eHealth Division. (Id.) At that time, eHealth Division was based in Atlanta and had field offices in several cities, including, inter alia, Cleveland, Ohio; Columbus, Ohio; Cincinnati, Ohio; Southfield, Michigan, Elgin, Illinois; Indianapolis, Indiana; and Lawrenceville, Georgia. (Id. at ¶ 5). 4. Throughout the Plaintiffs employment, Per-Se maintained well-publicized policies prohibiting unlawful discrimination or harassment in its workplace. (Id. at ¶ 34, Ex. 9). 5. Throughout the Plaintiffs employment, Per-Se also maintained well-publicized standards of conduct that required, inter alia, compliance with all laws and regulations applicable to Per-Se’s business. (Id., Ex. 10). 6. Throughout the Plaintiffs employment, Per-Se further maintained well-publicized procedures establishing multiple forums through which its employees could report concerns about unlawful discrimination or harassment in its workplace, or about illegal or fraudulent conduct (including alleged financial improprieties). (Id., Exs. 9,10). 7. Throughout the Plaintiffs employment, Per-Se further maintained well-publicized policies prohibiting retaliation against persons who complained about or otherwise raised concerns about perceived unlawful discrimination or harassment in its workplace, or any illegal or fraudulent conduct (including alleged financial improprieties). (Id. at ¶ 34, Exs. 9,10). 8. Defendant Philip Pead (hereafter “Pead”) is the President and Chief Executive Officer (“CEO”) of Per-Se Technologies, Inc. 9. Defendant William Dagher (hereafter “Dagher”) was, at the time of Plaintiffs employment with Per-Se, the President of the eHealth Division. 10. Defendant Charles “Chip” Moore (hereafter “Moore”) was, during 2000 until November 2004, a Senior vice-president (“VP”) for Per-Se. (Moore Depo., [Doe. 214, pp. 7, 13]). Initially, Moore was Senior VP for the eHealth Division and was also the General Manager (“GM”) of Per-Se’s Cleveland, Ohio office. (Id. at p. 13; Swaine Deck, [Doc. 228, ¶ 6]). In this position, Moore reported directly to Dagher, the President of eHealth. (Moore Depo., [Doc. 214, p. 13]; Dagher Depo., [Doc. 216, p. 10] ). 11. Because the Cleveland office (where Moore was GM) was part of the eHealth Division, the Plaintiff had general responsibility to provide HR support to that office. (Swaine Deck, [Doc. 228, ¶ 6] ). 12. In or about July 2003, Moore was reassigned to a new Senior VP position with different responsibilities (i.e., product management) and was no longer the GM of the Cleveland office. (Swaine Depo., [Doc. 219, p. 175] ). 13. The Plaintiff did not report directly to Moore, and Moore had no authority to take personnel actions (i.e., promotion, pay raises, termination, disciplinary actions) with respect to the Plaintiff. (Moore Depo., [Doc. 214, pp. 52, 65, 79-80, 121, 221]; Kellen Jameson Depo. (hereafter “Jameson Depo.”), [Doc. 217, pp. 72, 90-91, 169-70] ). 14. On or about February 13, 2001, the Plaintiff applied for employment with Per-Se. (Karen Baker Decl. (hereafter “Baker Deck”), [Doc. 228, ¶ 3, Ex. 2]). As required by Per-Se, the Plaintiff submitted both an employment application and a current Resume. (Id.) 15. Karen Baker (hereafter “Baker”) was the Per-Se manager with authority to hire the Plaintiff. (Baker Deck, [Doc. 228, ¶ 3]). Baker relied on the Plaintiffs application and Resume when deciding whether to hire him. (Id.) 16. On his application for employment with Per-Se, the Plaintiff stated that during the period from May 1997 to January 1999, he was employed as a HR Manager by Nationwide Credit. (Id. at ¶ 4, Exs. 2,3; PI. Depo., [Doc. 292, pp. 107-108, Ex. 2]). 17. In addition, the Plaintiff also stated on his application for employment with Per-Se that his final salary with Nationwide was $36,000. (Id.) 18. Moreover, the Resume the Plaintiff submitted in connection with his application indicated that he was employed by Nationwide Credit in various capacities from May 1997 to January 1999. (Id. at ¶ 4, Ex. 3; PI. Depo., [Doc. 292, p. 125]). 19. According to representatives at Nationwide Credit, there is no record that the Plaintiff ever worked as an employee (or in any form as an independent contractor) for Nationwide Credit during the period claimed by the Plaintiff. (Matthew Myers Deck (hereafter “Myers Deck”), [Doc.228, ¶¶4-7]). 20. On his federal and state income tax returns in 1997-1999, the Plaintiff reported no income from Nationwide Credit. (PI. Resp. to Per-Se’s First Req. for Admissions, [Doc. 228, ¶¶ 4, 7,11]). 21. In his September 14, 2004 response to Per-Se’s Interrogatory No. 11 (i.e., a request for a description of his work history), the Plaintiff did not list Nationwide Credit at all, but rather indicated that he worked for Sun Healthcare Group from August 1997 until February 1999. (PI. Resp. to Per-Se’s First Amend. Interrog. No. 11, [Doc. 228] ). 22. On his federal and state income tax returns for 1997-1999, the Plaintiff reported no income from Sun Healthcare Group, any of its affiliates, or any similarly named entity. (PI. Resp. to Per-Se’s First Req. for Admissions, [Doc. 228, ¶¶ 4, 7, 11] ). 23. The Plaintiff testified that he graduated from college in May 1997, moved to Florida, and worked in Florida for Marketing by Innovation. (PLDepo., [Doc. 292, pp. 70-72]). 24. Various policies in effect at Per-Se at the time it hired the Plaintiff made it clear that falsifying an employment application was a terminable offense. (Swaine Deck, [Doc. 228, ¶ 7, Ex. 1]). 25. Per-Se’s Corrective Action Policy states that “Falsifying, making misleading statements, or making a material omission on an employment application ...” is an infraction that may result in termination without warning. (Id.) Similarly, the Employee Conduct and Work Rules policy in the Per-Se Employee Handbook states that falsifying an employment application may result in immediate termination. (Id. at ¶ 7, Ex. 2). 26. Per-Se would have terminated the Plaintiffs employment if management had learned prior to his resignation that he had provided false information regarding his employment history on his employment application prior to his employment in March 2001. (Id. at ¶ 8; Baker Deck, [Doc. 228, ¶ 6] ) 27. Per-Se hired the Plaintiff in March 2001 as the HR Manager for its eHealth Division. (Baker Deck, [Doc. 228, ¶ 3]). 28. As the HR Manager, the Plaintiff was responsible for managing and offering advice about personnel-related aspects for eHealth Division’s business, including, inter alia, hiring and dismissals, HR policy implementation and compliance, and related matters. (Swaine Deck, [Doc. 228, ¶ 7] ). 29. Initially, the Plaintiff reported to Karen Baker, the eHealth Division Director of Finance. (Baker Deck, [Doc. 228, ¶ 5]). 30. Baker reported directly to the President of eHealth, William Dagher. (Id.) 31. In October 2002, in connection with a change in the Director of Finance position, the Plaintiff began reporting to Rel-ien Jameson (hereafter “Jameson”), the new eHealth Director of Finance. (Jame-son Depo., [Doc. 217, p. 131]; Baker Depo., [Doc. 215, p. 27]). As of October 2002, the Plaintiff no longer reported to Baker. (Baker Depo., [Doc. 215, p. 102]). 32. Instead of reporting to the eHealth President (i.e., defendant Dagher), Jame-son reported directly to Chris Perkins (hereafter “Perkins”), the Per-Se Technologies Chief Financial Officer (“CFO”). (Jameson Depo., [Doc. 217, pp. 59, 97] ). 33. In December 2001, the Plaintiff hired Tracy Fried (hereafter “Fried”) to work as an HR Representative under his supervision in the corporate office in Atlanta. (Fried Depo., [Doc. 288, pp. 17-18] ). 84. During the Plaintiffs employment, the HR Director for the Physicians Services Division was Jennifer Bender (hereafter “Bender”). (Swaine Depo., [Doc. 219, p. 10]). The HR Director for the Applications Software Division was Liesl Rowe (hereafter “Rowe”). (Id.) 35. By the Spring of 2002, Baker, the Plaintiff’s direct supervisor, observed that the Plaintiff seemed “very nervous with senior management” and had a difficult time verbally communicating his thoughts (including “cutting off his thought and jumping to the next thought” and using “incomplete sentences”). (Baker Depo., [Doc. 215, pp. 36-38] ). 36. By the Spring of 2002, the Plaintiffs next level supervisor, eHealth President Dagher, also observed that the Plaintiff (1) was unable to articulate clear and concise thoughts (including using incomplete and incoherent sentences); and (2) was a poor business advocate (i.e., he had difficulty applying HR policy in a business setting). (Dagher Depo., [Doc. 216, p. 108] ). 37. During the following six months (between the Spring and Fall of 2002), Baker perceived that the Plaintiff seemed unable to “handle all [of] the responsibilities” of his job. (Baker Depo., [Doc. 215, p. 36]) 38. By the Fall of 2002, Baker further perceived that the Plaintiff seemed “incapable of fully handling the job.” (Id.). 39. During the Fall of 2002, Dagher continued to receive complaints from several senior managers regarding the Plaintiffs lack of responsiveness regarding HR support. (Dagher Depo., [Doc. 216, pp. 39-40]). 40. During the period of 2001-2003, Moore traveled to Per-Se’s Corporate Headquarters in Georgia about once or twice per month, and each visit typically lasted about one or one and a half days. (Moore Depo., [Doc. 214, p. 202] ). 41. Moore regularly attended division meetings at Per-Se’s Georgia offices; and the Plaintiff was also in attendance thereat on about five to eight occasions during 2001-2003. (Id. at pp. 202-03). 42. Moore perceived that the Plaintiff had a tendency to “start and stop tasks,” often failed to complete tasks, was inconsistent in his approach to resolving tasks, was inaccurate in his work, and consistently failed to give sufficient HR support to the Cleveland operation. (Id. at pp. 54, 56, 150). 43.Moore also perceived that the Plaintiff made poor personnel-related decisions. (Id. at p. 68). For example, on one occasion, the Cleveland office had recently undergone a difficult Reduction in Force (hereafter “RIF”) where several employees had been terminated. (Id.) Very soon after the RIF ended, the Plaintiff sent an e-mail to several employees requesting their job descriptions. (Id.) Given the uncertainty and stress already faced by his employees as a result of the RIF, Moore believed that the Plaintiffs e-mail constituted very bad timing and reflected the Plaintiffs inability to understand the psyche of Moore’s personnel. (Id.) 44. On one occasion in the Fall of 2002, the Plaintiff made a presentation during a management meeting regarding various employment statistics and personnel-related matters. (Id. at p. 66). Moore believed that the Plaintiffs presentation contained inaccurate information. (Id.) After the meeting, Moore approached the Plaintiff and stated, “If this is the kind of stuff you are going to produce and you’re not going to take the time to make sure that it is accurate, this could affect your job.” (Id.) 45. Moore also believed that when the company made personnel-related decisions (i.e., hiring, firing, RIFs, promotions), it was important for the decision maker to first focus on the proper business decision, that is, to base personnel decisions principally on what was best for the company. (Id. at pp. 51-55, 110-11, 113-14). To Moore, if business was the focus, decisions would be impartial and legally proper without regard to an employee’s race, gender, or other protected classification. (Id. at pp. 144-45). As an example, when deciding who to terminate among a group of employees being subjected to a RIF, Moore believed that their respective work performances should be the deciding factor irrespective of race, gender, or any other protected class. (Id.) 46.Moore also believed that after the company determined the best course of action from a business perspective, the HR professional needed to review the proposed action to determine if the company was in compliance with laws, or whether its proposed actions might have adverse ramifications (i.e., if the decision might result in perceived unfairness, the HR professional needed to identify this concern and work with the operations managers to make the most of the appropriate decision). (Id. at pp. 52-55,110-11,113-14,138). 47. The Plaintiff, Moore believed, “always went directly to a protected class discussion” before thinking through the business decision. (Id. at p. 52). For example, rather than focus on an employee’s work performance or conduct, the Plaintiff only cared about the employee’s protected class instead of making an impartial decision based on neutral factors (i.e., work performance, conduct). In Moore’s opinion, the Plaintiff wanted to let an employee’s race, gender, or other classification drive the personnel decision. (Id. at pp. 144415). 48. During 2002, Moore complained to the Plaintiffs supervisor, Baker, about the Plaintiffs “work product” and his lack of “responsiveness.” (Baker Depo., [Doc. 215, pp. 44-45]). 49. On several occasions during the Fall of 2002, Moore also complained to Dagher about the Plaintiffs work performance, noting that he had difficulty “communicating clear and concise thoughts,” had difficulty applying “HR policy ... to the nuances that business managers experience in the real world,” and lacked “business savvy.” (Dagher Depo., [Doc. 216, pp. 40, 45] ). 50. By late 2002, eHealth President Dagher had received several complaints from senior managers that the Plaintiff was not being responsive to requests for HR support. (Id. at pp. 47-49). 51. Dagher requested both the Plaintiff and Jameson (as Plaintiffs direct supervisor) to attend a meeting held in December 2002. (S.A. Compl., [Doc. 43, ¶ 66]; Jame-son Depo., [Doc. 217, pp. 55, 65]). Moore also joined the conference via speaker phone from his office in Ohio. (Id. at ¶ 66; Id. at p. 65). 52. Moore recalls that during the meeting, he told the Plaintiff that it would be “very difficult to work with him” unless he improved his ability to understand and support the business side of personnel-related decisions. (Moore Depo., [Doc. 214, p. 52] ). 53. At the end of this meeting, the Plaintiff agreed to work with the various business units and to provide better HR support. (Id. at p. 64). 54. After the meeting, Jameson had a follow-up meeting with the Plaintiff. (Jameson Depo., [Doc. 217, p. 69]). Jame-son counseled the Plaintiff on his deficiencies as highlighted during the meeting, encouraged him to improve, and helped him to develop a plan to be more responsive to senior management. (Id.) 55. During the Plaintiffs employment with Per-Se, the eHealth Division operated a facility in Elgin, Illinois (i.e., the “Elgin Exchange”). (Id. at p. 73). 56. As the HR Director for eHealth, the Plaintiff was responsible for providing HR support to the Elgin Exchange. (Swaine Deck, [Doc. 228, ¶ 5]). 57. The Elgin Exchange was responsible for processing all company claims transactions. (Jameson Depo., [Doc. 217, pp. 73-74]). This function made Elgin a “critical piece” in Per-Se’s business operations. (Id.) 58. The Elgin facility employed about fifty to fifty-five employees. (Id. at p. 80; Fried Depo., [Doc. 288, p. 41]). 59. The senior manager with overall responsibility for the Elgin Exchange was Senior VP John George (hereafter “George”). (Id. at p. 73). The second manager in charge of Elgin was VP Mubarak Chouhdry .(hereafter “Chouhdry”). (Id.) 60. In late 2002 and early 2003, the eHealth Division was considering shutting down the Elgin Exchange and moving its operation to Lawrenceville, Georgia. (Id. at pp. 79-80). 61. The Elgin project would be expensive, and would require approval from senior leadership at Per-Se. (Id. at pp. 79-81). 62. In early 2003, although the Elgin project had not yet been approved, the eHealth managers were planning and operating it as if it would be approved. (Id.) 63. If the Elgin Exchange was closed, it would require a substantial reduction in force at the Elgin Exchange (i.e., most of the fifty-five plus employees would be terminated). (Fried Depo., [Doc. 288, p. 41]; Jameson Depo., [Doc. 217, p. 80]). 64. As a result, in early 2003, the Elgin facility was experiencing “a lot of turmoil” and several HR-related issues needed to be addressed. (Id. at pp. 42-43; Id. at pp. 78-79) 65. In late 2002 and early 2003, Tracy Fried, an HR assistant who reported to the Plaintiff, started providing regular HR support to Elgin managers as they dealt with the difficult issues associated with the possibility of closing the facility. (Id. at pp. 42-45; Id. at p. 76). 66. By early 2003, senior managers in charge of the Elgin Exchange (i.e., George and Chouhdry) started to rely primarily on Fried for HR support to Elgin. (Id. at p. 42). 67. In addition, by early 2003, Fried was traveling to Elgin to provide HR support at least twice a month. (Id. at pp. 43-44) 68. Although Fried became the primary provider of HR support for the Elgin Exchange, the Plaintiff was still her supervisor. (Jameson Depo., [Doc. 217, pp. 78-79] ) 69. Senior managers in charge of the Elgin Exchange (i.e., George and Chouh-dry) were dissatisfied with the Plaintiffs HR support, and believed he was an obstacle to the excellent support they were receiving from Fried. (Id. at pp. 76-77). 70. By early 2003, George and Chouh-dry were “bombarding” Jameson about a “crisis” at the Elgin Exchange because of “all kinds of personal issues.” (Id. at pp. 73, 76-77). 71. George and Chouhdry informed Jameson that the Plaintiff “was an obstacle to keeping that operation successful ... because [Fried] was making decisions and helping, but the decisions would get withdrawn by [the Plaintiff].” (Id. at pp. 76-77) 72. George and Chouhdry also informed Jameson that when Fried spent some time in Elgin, “the temperature of the office just cooled down instantaneously.” (Id. at pp. 77-78). However, they further informed Jameson that the Plaintiff continued to be an obstacle to Fried, precluding her from providing the support they needed. (Id. at p. 78). 73. On January 27, 2003, George sent an e-mail to Jameson in which he (1) expressed his dissatisfaction with the Plaintiffs support of the Elgin Exchange; and (2) requested that Jameson allow Fried to provide direct support to Elgin. (Jameson Deck, Doc. 228, ¶ 4, Ex. 1). George stated to Jameson: I really need [Fried] to spend some time up at [Elgin] with [Choudhryjs team. With everything about to happen in the way HR issues are handled up there, she is a real asset to [Chouhdry]. I’m looking for a commitment from [the Plaintiff] on how much time per month she can spend there [but] I haven’t gotten anything from him ... I’m actually tired of dealing with [the Plaintiff] on this and just need an answer. 74. On January 29, 2003, Chouhdry sent an e-mail to Jameson noting that “HR issues [would] continue to be a challenge” as the Elgin project moved forward, and requested that Fried be permitted to provide direct HR support for the Elgin Exchange. (Id. at ¶ 5, Ex. 2). 75. By March 2003, based on complaints he was receiving from the senior managers at Elgin and others, Jameson believed that the Plaintiffs responsiveness to senior management was seriously deficient. (Jameson Depo., [Doc. 217, pp. 78-79]). Jameson perceived that the Plaintiff was increasingly non-responsive to management, was difficult to find, was often missing from the workplace, and was becoming an obstacle to HR support to El-gin. (Id. at pp. 76, 78-79). Meanwhile, Jameson also perceived that Fried was doing a “wonderful job” of “diffusing a time bomb” situation in Elgin. (Id. at p. 84). 76. In early February 2003, an employee at the Elgin Exchange, Corine Morrow (hereafter “Morrow”), was terminated for poor performance. (Fried Depo., [Doc. 288, p. 81]). Following her termination, Morrow began sending harassing e-mails and making harassing phone calls to Elgin employees. (Id. at pp. 81-82, Exs. 2, 4). 77. Morrow, inter alia, contacted employees and made defamatory allegations about her former supervisor; invited employees to hold a “roast” of her former supervisor; sent harassing greeting cards to her former supervisor; sent e-mail messages to employees falsely claiming their job positions were posted in another city (i.e., implying that these employees were being terminated); and contacted company clients to make derogatory comments about Per-Se. (Id.) 78. Elgin management sensed that, in light of the tentative plan to close Elgin and the inevitable rumors moving through the workplace, the actions of Morrow were causing a potential for significant employee morale problems. (Id. at pp. 82-85, Exs. 2, 4). Elgin management, therefore, wanted immediate action to quell the situation. (Id.) 79. On February 21, 2003, Fried (who was providing substantially all of the HR support to Elgin by this point) provided to the Plaintiff a proposed letter to be sent to Morrow. The letter would instruct Morrow not to contact Per-Se employees during business hours via company-owned media; inform Morrow that she was interfering with company operations and causing undue stress to employees; and warn Morrow that, if she continued, Per-Se may take legal action against her. (Id. at p. 82, Ex. 2). 80. Later that day on February 21, 2003, the Plaintiff sent an e-mail to Fried instructing her not to send the letter to Morrow because he was “concerned of several laws that may be at risk” by sending the letter. (Id.) 81. As of March 4, 2003, the Plaintiff still had not approved sending the above referenced letter to Morrow. (Id.) Also on March 4, 2003, Fried contacted George and informed him that the Plaintiff still had not approved the letter to Morrow. (Id.) 82. Later that day on March 4, 2003, George sent an e-mail to the Plaintiffs supervisor, Jameson, complaining about the Plaintiffs lack of responsiveness regarding the Morrow situation. (Id.; Jameson Deck, [Doc. 228, ¶ 6, Ex. 3]). George stated to Jameson: This is the type of issue with [the Plaintiff] that I have a problem with. He never follows thru [sic]. We are having a problem with [Morrow] contacting people in our office and possibly some clients. I wanted a letter to go to her. [Fried] created something but [the Plaintiff] put it on hold for review. He talks about it here [referencing the Plaintiffs earlier e-mail] but it’s March 4th and I never got any information from him or update as to where it is at. 83. On March 5, 2003, Chouhdry sent an e-mail to the Plaintiff describing his dissatisfaction with his support to the El-gin Exchange, particularly with respect to the Morrow situation. (Jameson Decl., [Doc. 228, ¶ 7, Ex. 4]). George then forwarded this e-mail to Jameson. (Id.) Choudhry stated to the Plaintiff: What we need is to receive support from you and I feel you are not providing that support. I know that [Fried] has been very forthright in describing the issues and challenges relating to the Exchange to all [of] us. Since September, I have asked you on numerous occasions to visit the Exchange to evaluate the HR related issues. Several times you indicated that you would visit but you have not follow[ed] thru [sic]. I truly appreciate that [Fried] was able to spend time at the Exchange to evaluate and provide the needed assistance whenever possible. We are all dealing with a complex process which requires assistance from the whole team. 84. On or about March 6, 2003, George and Chouhdry contacted the Plaintiff by telephone and insisted that he take some action with respect to the Morrow situation. (Fried Depo., [Doc. 288, p. 84, Ex. 4]). 85. Subsequently, on or about March 6, 2003, the Plaintiff contacted Morrow to address her conduct. (Id.) Fried witnessed the telephone calk (Id.) 86. On March 10, 2003, Chouhdry sent another e-mail to the Plaintiffs supervisor, Jameson, regarding his dissatisfaction with the Plaintiffs support to the Elgin Exchange, particularly with respect to the Morrow situation. (Jameson Deck, [Doc. 228, ¶ 8, Ex. 5]; Fried Depo., [Doc. 288, pp. 86-87, Ex. 5]). Chouhdry complained to Jameson that (1) the Plaintiffs poor performance with respect to the Elgin Exchange was “getting out of control”; (2) he had made a “mistake” in not allowing Fried to send a letter to Morrow; (3) he had contacted Morrow by telephone contrary to Chouhdry’s specific request to have a written letter sent to Morrow; and (4) he was frustrating the process by preventing Fried from managing a situation she had more knowledge about. (Id.) Chouhdry also stated, “My suggestion is to take [the Plaintiff] off this ease and let [Fried] work with compliance and legal if necessary. [Fried] has been to the Exchange several times and understands the situation much better than any other HR person.” (Id.) 87. On Thursday, March 13, 2003, Jameson, George and Chouhdry had an early-morning conference call with Chris Perkins, the CFO of Per-Se Technologies, Inc. (Jameson Depo., [Doc. 217, p. 80]). During this conference, Perkins gave final approval of the budget for the Elgin project. (Id.) 88. Having received final budget approval, eHealth would be under significant pressure to implement plans for, inter alia, a major RIF at the Elgin facility. (Id. at pp. 82-83). Jameson understood that this action would require substantial HR support over the coming months. (Id.) 89. Following the conference with Perkins, George and Chouhdry immediately approached Jameson and asked for his commitment to assign Fried to provide direct HR support for the Elgin project. (Id. at pp. 83-84). George and Chouhdry demanded that Fried be assigned directly to them and that she not be required to report to or through the Plaintiff. (Id.) 90. Faced with these demands by two of eHealth’s senior managers, and considering the importance, expense, and extraordinary urgency of the Elgin project, Jameson determined that Fried needed to be fully committed to assisting George and Chouhdry for the duration of the Elgin project. (Id. at pp. 84, 87-88). 91. Jameson therefore made the decision that Fried would be assigned to provide direct HR support to Elgin for the duration of the Elgin project and that she would report directly to Jameson in lieu of the Plaintiff. (Id. at p. 84). 92. Jameson made the decision to revise Fried’s reporting arrangement on his own, without consulting eHealth President, Dagher. (Id. at pp. 84, 94, 97, 169-70). 93. Immediately following his telephone conference with Perkins and his subsequent meeting with George and Chouhdry, Jameson met with Fried and asked if she believed she could handle HR support for the Elgin project on her own. (Id. at p. 88). Fried assured Jameson that she was capable of doing so. (Id.) 94. Immediately following his meeting with Fried, Jameson met with the Plaintiff in a conference room. (Id.; PI. Depo., [Doc. 293, p. 579]). 95. The Plaintiff admits that he was not sure whether this temporary reporting arrangement was going to be “a long-term thing or if that was a temporary thing.” (Pl.Depo., [Doc. 293, p. 458]). 96. The arrangement regarding Fried had no impact on the Plaintiffs job title or his compensation and benefits. (Pl.Depo., [Doc. 228, pp. 446-47] ). 97. The Plaintiffs job title never changed between the date of his promotion to HR Director in March 2002 and his resignation in July 2003. (Id. at p. 446; Dagher Depo., [Doc. 216, pp. 67, 75] ). 98. The Plaintiffs rate of pay was never diminished at Per-Se between the date of his initial promotion to HR Director in March 2002 until his resignation in July 2003. (Id. at p. 447). 99. On March 14, 2003, the Plaintiff met with eHealth President Dagher. (PI. Depo., [Doc. 292, p. 60; Doc. 293, pp. SOS-OS] ). The Plaintiff complained about Jameson’s decision to have Fried report directly to Jameson for the duration of the Elgin project. (Id. at pp. 553-55). 100. The Plaintiff left the workplace after his meeting with Dagher and never returned to work another day at Per-Se. (Id. at [Doc. 292, pp. 60-61, 175; Doc. 293, p. 374] ). 101. As of Sunday, March 16, 2003, the Plaintiff “thought that [he] was going to be out for a little while.” (Id. at [Doc. 292, p. 173]). 102. At the time, the Plaintiff felt that he would “be away for a while but not for an extended period.” (Id. at pp. 176-77). 103. Later that night on March 16, 2003, the Plaintiff returned to his office at Per-Se in order to collect “some things [he] would need while [he] was out” including some things “[he] was working on.” (Id. at p. 173). 104. When the Plaintiff returned to his office that Sunday night, his intent was to retrieve “whatever I was working on and my ... personal stuff, [such as] my checkbook and ... a couple of things I was working on [such as] some recruiting stuff and ... some of that kind of stuff that I thought I might need while I was out.” (Id. at pp. 175-76). 105. After his meeting with Dagher on March 14, 2003, and his brief return on Sunday night, March 16, 2003, to retrieve some personal items and materials for current work projects, the Plaintiff never returned to the workplace at Per-Se. (Id. at p. 374). 106. The Plaintiff did not, however, intend to resign from Per-Se as of his last day at work on March 14, 2003 as he stated, “March 14th had no significance to me other than I was out on I was out on a medical leave. I mean, so I was still employed there.” (Id. at p. 60). 107. The Plaintiff was out sick during the period of March 17 to March 26, 2003. (Swaine Deck, [Doc. 228, ¶ 11]). 108. On March 26, 2003, the Plaintiff requested permission to take leave under the Family Medical Leave Act (hereafter “FMLA”). (Swaine Deck, [Doc. 228, ¶ 12, Ex. 3]). The Plaintiff said he understood that in order to qualify for FMLA leave, he would be “required to complete a Certification of Health Care Provider form and submit it to the HR department.” (Id.) 109. After completing the required paperwork, the Plaintiff was approved for FMLA leave effective March 26, 2003 with an expected date of return on April 29, 2003. (Id.) 110. On April 14, 2003, Swaine sent a letter to the Plaintiff noting that (1) his request for FMLA leave was approved beginning on March 26, 2003 with an expected return date of April 29, 2003; (2) pursuant to Per-Se’s company policy, the Plaintiff was required to use all vacation and sick benefits concurrently with his FMLA leave, and after such benefits were exhausted, any remaining leave would be unpaid; and (3) pursuant to Per-Se’s company policy, the Plaintiff was also required to present a fitness-for-duty certificate pri- or to his return to work. (Jet) 111. On April 24, 2003, after the Plaintiff had been on FMLA leave for more than five weeks, Swaine sent him a letter stating, “We look forward to your return next week on Tuesday [April 29, 2003].” (Swaine Depo., [Doc. 219, p. 137, Ex. 6]). Swaine also noted, ‘We will need to discuss several matters as you resume your work,” and suggested a one to two hour meeting with Jameson and Dagher in order to “plan your priorities and bring you up to speed on relevant matters.” (Id.) 112. On April 28, 2003, the Plaintiff sent a letter to Swaine stating, “I was pleased to receive your letter of April 24, 2003 indicating that you, [Jameson], and [Dagher] are planning for my return. Regrettably, my physician has indicated that I should not return to work until May 4.” (Id. at pp. 137-38, Ex. 6). 113. On May 5, 2003, the Plaintiff sent another letter to Swaine stating that his health had not improved, and that his physician had suggested that he continue on his leave of absence. (Id.) 114. On May 8, 2003, the Plaintiff sent a letter to Swaine stating that despite his doctor’s suggestion, “I look forward to returning to work as soon as possible.” (Id.) He also asked Swaine to “provide [him] with an assurance in writing that [he] will fulfill [his] legal obligation to provide both a safe place and a safe system of work.” 115. On May 14, 2003, Swaine responded to the Plaintiffs May 8 letter. (Id.) In this letter, Swaine acknowledged that the Plaintiff could not return to work at the time, and assured him that the company would “uphold all its legal obligations with respect to [the Plaintiffs] leave and return to work.” (Id.) Finally, Swaine asked the Plaintiff to contact him as soon as his “condition improve[d], so that [Per-Se could] plan [his] return.” (Id.) 116. The Plaintiff continued to work on current Per-Se job responsibilities while he was on FMLA leave. (Pl.Depo., [Doc. 292, p. 61]). 117. After March 14, 2003, and while he was out on FMLA leave through early July 2003, the Plaintiff continually “intend[ed] to come back to the company.” (Id.) 118. Until his resignation in July, the Plaintiff still “wanted to go back” to Per-Se (“I really did”), and he “still had plans to return.” (Id. at p. 62, [Doc. 293, p. 636]; Swaine Depo., [Doc. 219, p. 102]). 119. On June 18, 2003, the Plaintiff exhausted his twelve-week FMLA leave. (Swaine Deck, [Doc. 228, ¶ 13]). At that time, Swaine had not heard from the Plaintiff in several weeks. (Id.) 120. On June 20, 2003, Swaine sent a letter to the Plaintiff stating that he had exhausted his FMLA leave as of June 18, 2003, and that he needed to contact Swaine to coordinate his return to work. (Id. at ¶ 13, Ex. 4). Swaine also noted that the Plaintiff was eligible, under company policy, to apply for an additional period of “Personal Leave of Absence” for a maximum of thirty (30) days. (Id.) 121. On June 24 or 25, 2003, the Plaintiff telephonically contacted Swaine and advised him that he would not need to apply for additional personal leave, and that he planned to return to work on June 27, 2003. (Id. at ¶ 14). 122. During this telephone conversation, Swaine assured the Plaintiff that he would be welcomed back to Per-Se. (Id.) Swaine further explained that appropriate arrangements would need to be made for his return, and that he would need to meet with Swaine and Jameson in order to coordinate his return. (Id.) 123. In addition, during this conversation, Swaine and the Plaintiff agreed that he would report on Friday, June 27, 2003, for a meeting to plan his return to work at Per-Se. (Id.) 124. Furthermore, Swaine and the Plaintiff agreed that the Plaintiff would resume his full-time duties as eHealth’s HR Director during the following week. (Id.) 125. Swaine also reminded the Plaintiff that he would need to bring a medical release from his physician and a request for personal leave to cover his absence between June 18 (i.e., the end of his FMLA leave) and his return. (Id.) 126. Prior to the Plaintiffs return to work on June 27, 2003, Moore had been reassigned to a different Senior VP position with new job duties in product management. (Id. at ¶ 18). As a result of this reassignment, Moore would no longer be the GM of the Cleveland, Ohio office. (Id.; Swaine Depo., [Doc. 219, p. 175] ). 127. In March 2003, Medaxxis, a business unit in the eHealth Division, was transferred from eHealth to Physicians Services, a different Per-Se division. (Bender Depo., [Doc. 228, pp. 117-20, Ex. 13] ). 128. The Medaxxis transfer was based on the fact that the business model of Medaxxis (i.e., sale of software packages to small physician practices) was “better aligned” with the business model of the Physician Services Division. (Id. at p. 120). 129. As a result of this transfer, Me-daxxis management would then be supported by the Physician Services Division’s HR Department. (Id. at p. 120, Ex. 13). 130. On March 19, 2003, the Senior VP of Medaxxis sent an e-mail to the unit’s senior managers in which he thanked the Plaintiff for his support and welcomed the Physician Services HR staff (i.e., Rhian and Jennifer) to the Medaxxis team. (Id.) 131. On June 30, 2003, the President and CEO of Per-Se, Philip Pead, announced that effective that day, Per-Se HR Directors would report directly to Division Presidents. (Id. at p. 39, Ex. 2). Accordingly, as of June 30, 2003, the Plaintiff would report directly to eHealth President Dagher. (Id.; Rowe Depo., [Doc. 214, pp. 165-66, Ex. 20]; Swaine Depo., [Doc. 219, p. 159]). 132. On June 27, 2003, the Plaintiff was scheduled for a meeting with Swaine, Dagher, and Jameson in order to plan for the Plaintiffs transition back into the workplace after his three-month leave of absence. (Swaine Depo., [Doc. 219, p. 142]; Swaine Deck, [Doc. 228, ¶¶ 14-15]; Pl. Depo., [Doc. 293, pp. 637-39] ). 133. Upon his arrival at Per-Se on June 27, 2003, the Plaintiff was not asked to proceed directly to work at his desk as he might have done before his three-month absence. (Swaine Depo., [Doc. 219, p. 142]). Instead, the Plaintiff waited in the lobby for a few minutes until Swaine came to walk him to a conference room for the scheduled meeting. (Id.; Pl. Depo., [Doc. 293, pp. 641, 646]). Dagher and Jameson joined the meeting soon thereafter. (Pl. Depo., [Doc. 293, p. 649]). 134. Swaine’s intent for this meeting was to focus primarily on two topics, to wit: (1) the reassignment of duties and responsibilities to the Plaintiff that had been handled by other HR personnel during his three-month absence; and (2) the steps Per-Se would take to guard against any potential retaliation upon the Plaintiffs return to work. (Swaine Deck, [Doc. 228, ¶ 16]; Pl. Depo., [Doc. 293, p. 655] ). 135. During this meeting, the Plaintiff expressed that he was ready to work and “wanted to return” to work the following business day. (PhDepo., [Doc, 292, p. 68] ). 136. Swaine also asked the Plaintiff to prepare a list of communications he had received during his leave of absence. (Swaine Depo., [Doc. 219, p. 144]). 137. Swaine further asked the Plaintiff to prepare and furnish a list of all projects he had been working on prior to his extended leave of absence. (Swaine Deck, [Doc. 228, ¶ 16]; Pl. Depo., [Doc. 293, p. 652]). 138. Swaine further advised the Plaintiff about some procedural and personnel changes that had occurred during his absence that would potentially have an impact on his duties upon his return to work. (Id. at ¶¶ 17-18; Id. at p. 658). 139. Swaine further informed him that Moore had recently been reassigned to a different Senior VP position with new job duties in product management, and that he would no longer be the GM of the Cleveland, Ohio office. (Id. at ¶ 18). 140. During this meeting, Dagher advised the Plaintiff that certain performance deficiencies observed before his leave of absence would also need to be addressed upon his return to work. (Pl. Depo., [Doc. 293, pp. 654-55]; Dagher Depo., [Doc. 216, pp. 106-07, 122]). In response, the Plaintiff denied that any performance issues had ever been brought to his attention. (Id. at p. 654; Id. at pp. 107, 122; Swaine Depo., [Doc. 219, p. 145]). 141. Swaine also explained that in order to have time to communicate the Plaintiffs return to Per-Se’s employees and to plan for his transition back into the HR Director position after his three-month absence, he would need one more business day before the Plaintiff could begin working full-time again. (Swaine Depo., [Doc. 219, p. 147]; Swaine Deck, [Doc. 228, ¶¶ 19-21]; PL Depo., [Doc. 293, pp. 650-51] ). 142. Accordingly, the group agreed that the Plaintiffs official return-to-work date would be Tuesday, July 1, 2003. (Swaine Deck, [Doc. 228, ¶ 21]; PI. Depo., [Doc. 228, p. 68]). 143. Swaine informed the Plaintiff that if, upon his return, he had any concerns about the way he was being treated, he should not hesitate to contact Swaine or, if appropriate, another HR Director. (Id.; PI. Depo., [Doc. 293, p. 653] ). 144. At the end of this meeting, Swaine again asked the Plaintiff to obtain and furnish the required medical release permitting him to return to work. (Swaine Depo., [Doc. 219, p. 143]; PI. Depo., [Doc. 293, pp. 656, 658]). 145. Pursuant to Per-Se’s company policy, an employee must present a medical release prior to returning to work following an extended leave of absence pursuant to FMLA leave. (Id. at p. 143; Rowe Depo., [Doc. 214, p. 63]). 146. The Plaintiff promised to provide Swaine a medical release by facsimile later that day. (Swaine Deck, [Doc. 228, ¶ 22]; PI. Depo., [Doc. 293, pp. 658-59]). 147. The June 27, 2003 meeting lasted approximately thirty minutes. (Id. at ¶ 23). 148. On June 30, 2003, Swaine sent an e-mail to the Per-Se employees with whom the Plaintiff routinely worked with regarding his return to work on Tuesday, July 1, 2003. (Swaine Depo., [Doc. 219, p. 99, Ex. 5]). The message stated in pertinent part: You may be aware that Terry Bozeman has been away from the company on leave and that Terry has complained about certain employment and other practices at the company. Terry is scheduled to return to the company tomorrow, and the company will be welcoming him back. We will be working to address the concerns raised by Terry. In the meantime, we know that you appreciate the sensitive nature of this and other personnel issues, and that you will act professionally and not discussing or “gossiping about” Terry’s situation. In addition, and very importantly, please understand that Terry is not to be treated any differently whatsoever based upon the fact of his leave or the fact that he has raised concerns as described above. 149. Swaine also personally met with the HR Department employees and informed them that the Plaintiff was returning from his leave of absence, and that there was to be no retaliation against him. (Swaine Deck, [Doc. 228, ¶ 24]; Bender Depo., [Doc. 228, p. 128] ). 150. After the June 27, 2003 meeting, the Plaintiff “hoped to” and “wanted to go back” to work at Per-Se. (Pl.Depo., [Doc. 292, pp. 62, 68]). 151. When the meeting ended, the Plaintiff was “ready to come back to work provided [he] could get comfortable with the situation.” (Id. at p. 65). 152. Over the next several days, the Plaintiff “still had plans to return ... right down to the [day I was to return].” (Id. at p. 62). 153. On Monday afternoon, June 30, 2003, the Plaintiff sent an e-mail to Swaine regarding some administrative matters relating to his return to work scheduled for the following day. (Swaine Deck, [Doc. 228, ¶ 25, Ex. 6]). At the end of the email, the Plaintiff emphasized, “I look forward to seeing you upon my return tomorrow.” (Id) 154. Despite his e-mail to Swaine, the next morning on Tuesday, July 1, 2003, while the Plaintiff was driving to work, he changed his mind, and decided he would not return to work on that day. (PI. Depo., [Doc. 292, p. 69; Doc. 293, p. 426] ). 155. However, even on the afternoon of July 1, 2003, the Plaintiff was still debating whether he should return to work. The Plaintiff telephoned Swaine to say he was “not sure” if he would return to work, and that he would contact Swaine later that day or the next day. (Swaine Deck, [Doc. 228, ¶ 26] ). 156. The Plaintiff did not contact Swaine again on either July 1 or July 2, 2003. (Id. at ¶ 27). 157. On July 3, 2003, Swaine telephoned the Plaintiff at his home and left a voicemail message in which he (1) stated that he hoped the Plaintiff was feeling better; (2) reminded him that his FMLA leave had expired; (3) reminded him that he had not yet received medical information regarding his ability to return to w