Mahoney v. Ernst & Young LLP (487 F. Supp. 2d 780, 2006)

ORDER

RAINEY, District Judge.

Before the Court is Magistrate Judge Nancy K. Johnson’s Memorandum, Recommendation, and Order (“M & R”) entered February 2, 2006 (Dkt.# 94). Timely objections to the M & R were filed by the Plaintiff on February 16, 2006 (Dkt.# 95). After considering the M & R, the objections, the entire record, and the applicable law, the Court SUSTAINS Plaintiffs objection to the calculation of the FMLA period and Plaintiffs objection to the conclusion that Defendant established, as a matter of law, that Plaintiff failed to mitigate damages. Plaintiffs other objections are OVERRULED, and the Court ADOPTS the remaining recommendations of the M & R.

Standard of Review

A district court that refers a case to a magistrate judge must review de novo any portions of the magistrate judge’s proposed findings and recommendations on dispositive matters to which the parties have filed specific, written objections. See Fed. R. Civ. P. 72(b). The district court may accept, reject, or modify, in whole or in part, those portions of the proposed findings and recommendations. See id. In contrast, when considering the magistrate judge’s orders addressing nondisposi-tive matters, the district court may modify or set aside portions of the orders only if they are “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a).

Discussion

Plaintiff objects to Judge Johnson’s determination that her twelve weeks of FMLA leave began on August 29, 2002 and expired on November 21, 2002. (M & R pp. 38-39). Plaintiff contends that Defendant elected to use its fiscal year, not a calendar year, for purposes of calculating FMLA leave. Defendant admitted in its First Amended Answer at paragraph 16, that “its relevant fiscal year for purposes of its FML policy began on October 1, 2002 and ended on September 30, 2003.” (Dkt.# 16, p. 4). Consequently, although Plaintiff did begin FMLA leave on August 29, 2002, that period of leave ended on the last day of the fiscal year, September 30, 2002, and a new twelve week FMLA period commenced on October 1, 2002. This twelve week period expired on December 23, 2002. Therefore, the Court finds that Plaintiffs FMLA leave commenced on August 29, 2002, expired on September 30, 2002, recommenced on October 1, 2002 and expired again on December 23, 2002. As a result of this recalculation, the Court also finds that issues of material fact remain as to whether Defendant improperly interfered with Plaintiffs right to reinstatement under the FMLA when she requested to return to work in December 2002.

Plaintiff also objects to Judge Johnson’s determination that Defendant proved, as a matter of law, its affirmative defense that Ms. Mahoney failed to mitigate damages. To begin, the Court notes that Plaintiffs objection misstates the relevant law. The law, as the Supreme Court has articulated it, states that “absent special circumstances,” a plaintiffs refusal of an unconditional offer for a “substantially similar” position stops the accrual of back-pay. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 241, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). Grounds for reasonable refusal are “special circumstances” under the Ford precedent. See Smith v. World Ins. Co., 38 F.3d 1456, 1465 (8th Cir.1994). If a defendant establishes that it made an unconditional offer for a substantially similar position, then the plaintiff must present evidence that the refusal was reasonable. Id. Plaintiff concedes in her objection that the offer made to her was unconditional and for a substantially similar position. (Dkt.# 95, p. 9). The evidence Plaintiff presents to establish that her refusal of the offer was reasonable essentially reiterates the factual allegations giving rise to her FMLA and ADA claims. (Dkt.# 62, p. 4). Judge Johnson rejected the sufficiency of this evidence on the grounds that Plaintiff was actively seeking reinstatement at the time the events underlying her evidence took place. The Court would tend to agree if Plaintiff only alleged facts pertaining to one event contemporaneous to a request for reinstatement. However, Plaintiff alleges events spanning over a year. Defendant did not offer Plaintiff a new position until November 2003, nearly a year after she began actively seeking reinstatement and nearly six months after her long term disability benefits ceased. These sort of allegations have been accepted by other courts considering a plaintiffs refusal to accept an offer of reinstatement. In Smith v. World Ins. Co., the Eighth Circuit Court of Appeals wrote, “[w]hile many of the individual factors standing alone would not be sufficient to establish an objectively reasonable rejection of the offer, the totality of the circumstances would have allowed the jury to reach that conclusion.” Smith, 38 F.3d at 1465. In her deposition, Plaintiff stated that she refused the offer of reinstatement because she did not feel like it was a good faith effort that she could trust. The only relevant inquiry for this Court is whether any reasonable jury could consider Plaintiffs proffered evidence, taken as a whole and in the light most favorable to Plaintiff, and determine that her refusal to accept Defendant’s offer was objectively reasonable. The Court cannot state as a matter of law that Plaintiffs evidence is deficient. Therefore, the Court finds that the jury should consider the issue of mitigation of damages.

It is so ORDERED.

MEMORANDUM, RECOMMENDATION AND ORDER

JOHNSON, United States Magistrate Judge.

Pending before the court are: 1) Plaintiffs Motion for Partial Summary Judgment (Docket Entry No. 54); 2) Defendant’s Motion for Partial Summary Judgment (Docket Entry No. 58); 3) Defendant’s Motion to Strike (Docket Entry No. 59); 4) Plaintiffs Motion to Strike (Docket Entry No. 61); 5) Defendant’s Supplemental Motion for Summary Judgment (Docket Entry No. 67); 6) Defendant’s Motion for Summary Judgment (Docket Entry No. 68); 7) Defendant’s Motion to Bifurcate Trial (Docket Entry No. 70); 8) Plaintiffs Motion for Partial Summary Judgment (Docket Entry No. 77); 9) Plaintiffs Second Supplemental Motion for Partial Summary Judgment (Docket Entry No. 88); and Plaintiffs Motion to Strike Defendant’s Summary Judgment Pleadings (Docket Entry No. 92).

The court has considered the motions, all relevant filings, and the applicable law. Three of the motions, Docket Entry Numbers 77, 88, and 92, were filed beyond the applicable motion deadline without leave of court. The court ORDERS that these motions be stricken. For the reasons set forth below, the court RECOMMENDS that: 1) Plaintiffs and Defendant’s partial summary judgment motions on Plaintiffs Family and Medical Leave Act (“FMLA”) claim (Docket Entry Nos. 54, 58) be DENIED; 2) Defendant’s partial summary judgment motion on Plaintiffs back pay claim (Docket Entry No. 67) be GRANTED; and 3) Defendant’s summary judgment motion on Plaintiffs Americans with Disabilities Act (“ADA”) and Employee Retirement Income Security Act (“ERISA”) claims (Docket Entry No. 68) be DENIED IN PART AND GRANTED IN PART. The court also DENIES the motions to strike (Docket Entry Nos. 59, 61) and the motion to bifurcate (Docket Entry No. 70).

I. Case Background

Plaintiff filed this employment action against her former employer, alleging violations of the FMLA, the ADA, and ERISA.

In December 2000, Defendant hired Plaintiff as a consultant in marketing. Five months later, Defendant hired Plaintiff as a full-time regular employee. Plaintiff held the position of pursuit strategist in Defendant’s Sales, Sales Support and Marketing practice.

Between June 24, 2002, and July 15, 2002, Plaintiff regularly worked more than 40 hours a week. Over the weekend of July 7-8, Plaintiff telephoned Brad Williams (“Williams”), a coworker, at home from another employee’s work extension and left voice messages referring to Williams as a “tactical genius” and referring to the pending work project as a military operation. On Monday, Plaintiff remained delusional and made little sense during conversations with Sarah Trammel (“Trammel”), sales lead and Plaintiffs immediate supervisor. Trammel sent Plaintiff home. Plaintiffs physician, Scott Sprabery, M.D. (“Dr. Sprabery”), hospitalized her for the treatment of anxiety and depression.

Plaintiff returned to work on August 19, 2002, under doctor’s orders to work reduced hours for a month. Defendant agreed to comply with a reduced-hour tyork schedule. On her second day at work, Trammel called Plaintiff into her office for a discussion about Plaintiffs hours. According to Plaintiff, Trammel suggested that Defendant would not be able to accommodate a reduction in Plaintiffs work hours. Without settling the work-hour issue, Plaintiff testified, Trammel began to critique Plaintiffs work performance on past job assignments. Plaintiff viewed Trammel’s comments as critical, harsh, and untimely. According to Trammel, Plaintiff became extremely upset, began to cry, and left Trammel’s office.

Plaintiff immediately went to see De-laine Barr (“Barr”) in human resources to discuss Plaintiffs conversation with Trammel. During the course of the conversation with Barr, Plaintiff cried on and off. Barr, professedly out of concern for Plaintiff, called EY Assist, the outsourced employee assistance program, to get the opinion of someone accustomed to dealing with similar situations. Her contact person recommended that Barr check back in with Plaintiff and encourage her to go home early.

Barr went to Plaintiffs office and asked whether Plaintiff felt like she was ready to be back at work. Although Plaintiff answered that she was, Barr recommended that Plaintiff go home and await Barr’s telephone call with information on the next step. Acting on the recommendation of the EY Assist counselor, Barr required that Plaintiff undergo an independent medical evaluation (“IME”) at Defendant’s expense before returning to work. Laura McLaughlin (“McLaughlin”) of Managed Health Network, Defendant’s EY Assist program outside provider, telephoned Plaintiff on the following day to give her an appointment date with Rahn Bailey, M.D., (“Dr. Bailey”), the designated psychiatrist for Plaintiffs return-to-work IME. In the conversation, Plaintiff confided that her symptoms were returning and that she had called her treating physician.

On August 23, 2002, Barr spoke with Plaintiff by telephone regarding several issues. Plaintiff explained that she could not make her appointment with Dr. Bailey scheduled for August 27, 2002. At Plaintiffs request, Barr detailed Plaintiffs leave as follows: July 15-19 — sick time; July 22-August 19 — short-term disability; August 21-28 — sick time; August 29-?— FMLA leave. Barr also spoke with Plaintiffs legal representative and emergency contact, J.P. Kumar (“Kumar”), by telephone later that same day. In addition to discussing several other issues, Barr gave Kumar a facsimile number for confidential transmissions in case Plaintiff would like to provide any additional information from her own treating physician. She also notified him of the date of Plaintiffs rescheduled appointment with Dr. Bailey. Barr’s notes reflect that she had another conversation with Plaintiff later that day during which Plaintiff covered many topics, but not in coherent fashion.

On August 28, 2002, Kumar telephoned Barr to notify her that Plaintiff was in the hospital and could not make the rescheduled appointment with Dr. Bailey. In a follow-up letter dated August 28, 2002, Ku-mar “invoked” Plaintiffs FMLA rights. Barr responded to Kumar’s letter on August 29, 2002, stating, “We are placing Mary Beth Mahoney on FMLA (Family Medical Leave Act) leave effective immediately.”

Pursuant to its policies, Defendant allows employees sixteen weeks of family medical leave each fiscal year. Additionally, Defendant’s policy states, “And while FMLA permits an employer to include paid vacation or disability periods in the leave, Ernst & Young elects the more generous policy of treating any paid and unpaid portions of time, which might be available under other firm policies, as separate from Family Medical Leave.”

During the August hospitalization, Dr. Sprabery again treated Plaintiff for depression. He discharged her from inpatient care in early September 2002. Later in September, Plaintiff requested medical leave beginning in early September and extending through November 4, 2002. As of October 15, 2002, however, Plaintiff had not seen Dr. Bailey for the return-to-work IME. In a conversation with Plaintiff on that date, Barr reminded Plaintiff that she must complete the IME before she could return to work. The two also discussed how Plaintiffs FMLA status affected her ability to use vacation time to cover her leave of absence.

On October 31, 2002, Plaintiff requested an extension on her medical leave for an additional month. Upon examination on November 11, 2002, Dr. Sprabery found Plaintiff to be doing well. Also on November 11, 2002, Dr. Bailey evaluated Plaintiff.

Five days later, Dr. Bailey completed his written report based on the clinical interview of Plaintiff and his communication with McLaughlin. He did not contact Plaintiffs treatment providers or perform personality tests on Plaintiff in connection with the formulation of his opinion. In the report, Dr. Bailey discussed Plaintiffs psycho-social history, her psychiatric symptoms, and her mental status. He opined:

Psychiatrically, Ms. Mahoney currently exhibits significant depressive, manic, and anxiety-laden symptoms that are resulting in psychiatric distress and impairment. ... Furthermore, though Ms. Mahoney reports progress due to psychiatric intervention, she continues to present with symptoms that warrant treatment and appear to impair her ability to return to her former position. It appears highly plausible that given her present state, Ms. Mahoney will experience decompensation if subjected to the same level of stress and fast paced environment indicative of her position as a Pursuit Strategist. She would benefit instead from placement in a position that requires less multitasking, fewer deadlines, and is more conducive to her need for flexibility and frequent periods for relaxation and breaks.

Dr. Bailey concluded that Plaintiff suffered from Major Depressive Disorder and was not able to perform the duties of her job. “Therefore, I find [Plaintiff] not fit for duty ....”

Before either Plaintiff or Defendant knew the results of Dr. Bailey’s evaluation, Plaintiff informed Defendant of her desire to return to work on December 2, 2002. After examining her again on December 2, 2002, Dr. Sprabery released Plaintiff to return to work immediately on a three-quarters work schedule for the initial forty-five days. The court found no indication in the record of Plaintiffs contemporaneous submission of this release to Defendant.

Plaintiff telephoned Monica Hampton (“Hampton”), Barr’s maternity replacement, on December 2 and December 4 to inquire about Dr. Bailey’s findings. Hampton contacted McLaughlin, who reported that Dr. Bailey recommended Plaintiff not return to work yet and be reevaluated in ninety days. Dr. Bailey’s records indicate that he did not forward a copy of his report to Defendant until December 6, 2002. Hampton did not relay any of this information to Plaintiff at that time.

Plaintiff wrote Hampton a letter on December 16, 2002, in which she reiterated her desire to return to work. At that time, she remained uninformed about Dr. Bailey’s findings. Plaintiff urged Defendant to act quickly because “FMLA leave is unpaid.”

As of December 28, Defendant still had not informed Plaintiff of Dr. Bailey’s results or provided her with a copy of Dr. Bailey’s report. Plaintiff wrote:

I presume that Dr. Bailey’s report did not identify anything that would prohibit me from returning to work. If, for some reason, Dr. Bailey has indicated that he believes that I am not medically capable of returning to work at this time, I would like to file a claim for long-term disability under my benefits as an Ernst & Young employee and will need to receive the necessary forms from you to initiate this claim. In either event, I request a copy of the IME report.

Plaintiff also requested assistance with a couple of other human resource matters. She again indicated an awareness that Defendant had designated her leave as FMLA-qualifying.

In late December, Defendant hired an individual as a pursuit strategist to replace Plaintiff. The record does not reveal that Defendant notified Plaintiff of this action or that Defendant took any action in recognition of the expiration of Plaintiffs FMLA leave.

In early January, Plaintiff spoke with Sandra Turner (“Turner”), Defendant’s internal EY Assist director, about Dr. Bailey’s report. Turner revealed Dr. Bailey’s findings to Plaintiff. Based on that conversation and without having seen the actual report, Plaintiff stated that she believed that Dr. Bailey’s'conclusions conflicted with those of her treating physician. Plaintiff received a copy of the report on January 9, 2003. She sent Hampton an e-mail the following day asking for, among other things, information about disability leave and requesting the exact dates of her FMLA leave.

After receiving Dr. Bailey’s report, Plaintiff began the application process to claim long-term disability benefits with two insurers. On the statement she provided to Unum in explanation of how her ailment impeded her ability to work, Plaintiff stated that she was hospitalized in July and August and that Dr. Bailey determined that she could not return to work in November. She also stated that her return to work was “[d]ependent on being cleared to return to work by Dr. Bailey.” In a letter submitted to Unum in connection with her application, Plaintiff wrote, “Dr. Bailey’s opinion has prevented me from returning to work.”

In an April phone interview, an Unum representative asked Plaintiff, “What keeps you from working?” Plaintiff responded, “My employer required that I have an Independent Medical Examination. Dr. Rahn Bailey is the doctor that the company chose, and it was Dr. Bailey’s opinion that I was not able to return to work.” When asked if she would like to return to work, she stated, “Yes, I believe I have been ready to return to work since late November.” Plaintiff reported that she had not experienced any symptoms for months. She continued, “What is preventing me from returning to work is Dr. Bailey’s determination.”

On the Attending Physician’s Initial Statement of Disability that Plaintiff filed with American Express IDS Life Insurance Company (“American Express”), her private disability insurer, Dr. Sprabery stated that Plaintiff was experiencing “[depressed mood and overwhelming anxiety.” He reported that “[p]oor concentration!,] [f]requent crying spells [and] anxiety attacks” interfere with her ability to work. Plaintiff reported to American Express, in separate phone conversations, that her “employer won’t allow her to return to work yet” and that she felt like she could have returned to work “a long time ago.” In a letter to American Express, with which she enclosed Dr. Bailey’s report, she noted her disagreement with many factual statements and stated that she sent it because “it nonetheless is the document that contains the medical determination that prevents me from returning to my position.”

On February 20, 2003, Dr. Bailey recommended, without a follow-up evaluation, that Plaintiff seek placement in a less demanding position and opined that she was able “to begin gradual re-entry, meaning part-time, into a lower level position.” On the same date, Dr. Bailey signed an attending physician’s statement that Plaintiff filed in connection with her long-term disability application. He noted on the statement that Plaintiff could return to part-time work as of that date and should be able to return to full-time work in three to six months with continued treatment.

In communication with Barr early in March, Plaintiff registered her objections to Dr. Bailey’s original report, including disagreement with Dr. Bailey’s background facts and his conclusions. Barr communicated this information to Turner, who noted, “Mary Beth seems to think that she will be returned to a position at the firm. This is not true. Mary Beth would be better off to move ahead with her life.”

Plaintiff addressed a letter to Hampton on March 19, 2003, that detailed her objections to Dr. Bailey’s report. In that letter, Plaintiff also stated that her understanding was that her FMLA leave began on August 29, 2002, and expired on December 29, 2002. By denying her information regarding Dr. Bailey’s findings until December 31, 2002, she wrote, Defendant had denied her the opportunity to contest his report until after her FMLA leave had expired. Following a summary of her employment history with Defendant, Plaintiff requested a new IME and expressed an interest in positions in other cities where Defendant had offices.

Plaintiff followed this letter with an email directed to Hampton on April 16, 2003. She referred to Dr. Bailey’s February partial release and to her March correspondence. She noted that she had not received any response from Hampton or anyone else concerning her request to return to work. In response, Barr (who had returned from maternity leave) indicated that Defendant planned to take no action while Plaintiffs long-term disability claim was pending. Barr gave Plaintiff a contact number for the disability carrier and told her to contact the carrier for updates. When pressed by Plaintiff in a subsequent e-mail, Barr responded that Dr. Bailey had clarified that Plaintiff could not return to her former position and that Defendant had no available position meeting the physician’s restrictions.

Dr. Bailey’s April clarification came in response to an inquiry by Turner. Dr. Bailey “strongly recommend[ed]” a second evaluation of Plaintiff or “gradual reentry (part-time) in a position that requires much less multi-tasking, fewer deadlines, and is more conducive to her need for flexibility and frequent periods for relaxation and breaks.” Shortly thereafter, Dr. Bailey reaffirmed by letter his recommendation of February 2003, restating that Plaintiff could begin gradual re-entry into a lower level position.

Defendant did not act upon Dr. Bailey’s recommendation because, in Turner’s view, Plaintiffs pending application for long-term disability indicated that she did not intend to return to work at that time and, thus, made return-to-work assessment or accommodation unnecessary. Turner decided to allow the long-term disability provider evaluate Dr. Bailey’s additional opinions in connection with any other medical information available to the carrier.

Sometime later, Dr. Bailey communicated with Dr. Sprabery and Plaintiffs therapist. Based on their shared opinion that Plaintiff had made significant progress and was ready to return to full-time employment, Dr. Bailey opined in a letter dated May 15, 2003, that Plaintiffs intellect, education, desire, and compliance “have apparently produced an outcome sufficient for her return to her previous post, immediately. According to Barr, Turner was “very surprised that Dr. Bailey reversed his decision. Said typically Forensic Psychiatrists do not do this.”

After Dr. Bailey released Plaintiff to return to work in May, Barr was not able to find a full-time position for her. Plaintiff wrote Barr on May 20, 2003, after receiving a copy of Dr. Bailey’s release to work. Plaintiff requested placement in a position anywhere in North America.

Around the second week of June, Unum approved Plaintiffs claim and granted disability coverage for December 22, 2002, through May 15, 2003. American Express granted Plaintiff benefits from approximately October 15, 2002, through March 2003. At approximately the same time as the approval of her long-term disability benefits, Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Commission on Human Rights (“TCHR”), alleging disability discrimination and retaliation. Plaintiff claimed that Defendant discriminated against her by:

1) Removing her from the workplace on or about August 20, 2002; 2) Requiring her to undergo an “Independent Medical Examination” before allowing her to return to work; 3) Refusing to reinstate her to her prior position as a Pursuit Strategist after her treating physician and the IME doctor cleared her to return to work; 4) Constructively discharging her; and 5) Subjecting her to a hostile work environment through these and other disability-based discriminatory acts.

She also alleged that Defendant retaliated against her for asserting her rights under the ADA and the TCHR Act.

Plaintiff continued to pursue reinstatement, but Barr notified her that Defendant had filled her position and encouraged her to look on Defendant’s website for openings in other cities. According to her notes, Barr explained Defendant’s “uncertainty ifiwhen [Plaintiff] would return to work,” but did not answer Plaintiffs direct question as to whether Barr was telling Plaintiff that she could not return to work. In a June 24, 2003, e-mail, Barr offered to give Plaintiff recruiter contact information for the cities in which Plaintiff was interested.

On June 30, 2003, Plaintiffs counsel sent Defendant a demand letter that recounted the course of events from Plaintiffs perspective and threatened legal action pursuant to the ADA and FMLA. Plaintiffs counsel proposed a settlement to include restoration to a position comparable to that which Plaintiff previously held, relocation to Defendant’s office in Toronto, Canada, and additional compensation. The summary judgment record contains no evidence of a direct response to this letter.

Defendant received notice of Plaintiffs EEOC complaint on July 8, 2003, and terminated Plaintiff on August 15, 2003. However, in early November 2003, Defendant offered Plaintiff a senior associate position in marketing for Defendant’s National Energy, Chemical and Utilities Industry Services Group at a salary higher than that which she was paid as a pursuit strategist.

On January 21, 2004, Plaintiff filed an amended discrimination complaint with the EEOC and TCHR. Plaintiff added a claim based on her formal termination in August 2003. Plaintiff filed this lawsuit in May 2004 and filed her pending motion for summary judgment on the FMLA claim in May 2005. Defendant responded with several dispositive motions of its own that cover, in total, all of the alleged causes of action, as well as the damages issue of back pay. The briefing on these motions, which began in May 2005, has continued for eight months.

II. Nondispositive Motions

The parties have filed three timely non-dispositive motions — two motions to strike that are related and one motion to bifurcate. The court addresses them one at a time.

A. Motions to Strike

Defendant filed objections to Plaintiffs summary judgment evidence in connection with a motion to strike that evidence. Specifically, Defendant objects to: 1) portions of Plaintiffs affidavit testimony as irrelevant and as improper lay testimony; 2) portions of Dr. Sprabery’s affidavit testimony because the information was not provided to Defendant during Plaintiffs employment; 3) Dr. Sprabery’s affidavit testimony to the extent that he offered medical opinions beyond his limited expert designation as a treating physician; 4) portions of Dr. Bailey’s deposition testimony as irrelevant; 5) the June 30, 2003, demand letter from Plaintiffs counsel to Defendant as an inadmissible offer of compromise; 6) the American Academy of Psychiatry and Law Ethical Guidelines for the Practice of Forensic Psychiatry as hearsay; 7) portions of Plaintiffs interrogatory responses to the extent that the information was not provided to Defendant during Plaintiffs employment; and 8) Defendant’s interrogatory responses because Defendant since has amended those answers.

Plaintiff responded to Defendant’s motion and submitted a copy of Defendant’s supplemental/amended interrogatory answers, thereby mooting Defendant’s last objection. Plaintiff also moves the court to strike Defendant’s motion to strike because Defendant’s objections are baseless and violate Federal Rule of Civil Procedure 11.

In making its recommendation on the current dispositive motions, the court did not rely on most of the evidence to which Defendant objects. Therefore, the court finds it unnecessary to strike that evidence. However, two objections do require discussion.

First, Defendant’s objection to Dr. Sprabery’s affidavit testimony on the basis that the information was not provided to Defendant during Plaintiffs employment is OVERRULED. As explained in another section of this Memorandum, Dr. Spra-bery’s opinion is relevant to the determination of whether Plaintiff could have returned to work before the expiration of her FMLA-protected leave. Because Defendant’s own actions may have interfered with Plaintiffs exercise of her FMLA rights, the court finds that Plaintiffs failure to provide Dr. Sprabery’s progress notes to Defendant during her employment is no reason to exclude them at trial.

Second, Defendant’s objection to the June 30, 2003, demand letter is OVERRULED. Submission of the letter is not precluded by Federal Rule of Evidence 408 because Plaintiff offers the letter as proof that she engaged in a protected activity, not as proof of liability for or validity of her claims. See Fed.R.Evid. 408 (“This rule ... does not require exclusion when the evidence is offered for another purpose .... ”).

Because the court finds none of the evidence on which it relied to be objectionable, the court DENIES Defendant’s motion to strike. The court also DENIES Plaintiffs motion to strike Defendant’s motion.

B. Motion to Bifurcate

Defendant moves the court to bifurcate the issues of liability and punitive damages and seeks a protective order delaying discovery concerning Defendant’s net worth until the punitive damage phase of trial. Plaintiff objects to any delay in discovery, but does not object to bifurcation of the issues at trial, provided the punitive damages phase is tried to the same jury.

Federal Rule of Civil Procedure 42(b) allows a court to order separate trials on any number of issues or claims “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” The decision whether to bifurcate rests within the sole discretion of the trial court. Conkling v. Turner, 18 F.3d 1285, 1293 (5th Cir.1994).

In this case the court finds no reason to separate the liability and punitive damages phases of the trial. No prejudice or greater convenience would redound to the parties as a result of bifurcation. Expedition and economy will be served by trying all issues together. Defendant’s motion is DENIED.

III. Summary Judgment Motions

Both parties seek summary judgment on Plaintiffs FMLA claim. Defendant also seek summary judgment on Plaintiffs ADA and ERISA claims. Defendant moves the court to toll Plaintiffs recovery of back pay at the point of its November 2003 offer of reinstatement.

A. Summary Judgment Standard

Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir.2003). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be genuine, the dispute regarding a material fact must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. Id. at 250, 106 S.Ct. 2505.

The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). If the moving party can show an absence of record evidence in support of one or more elements of the case for which the non-moving party bears the burden, the mov-ant will be entitled to summary judgment. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In response to a showing of lack of evidence, the party opposing summary judgment must go beyond the pleadings and proffer evidence that establishes each of the challenged elements of the case, demonstrating that genuine issues of material fact do exist which must be resolved at trial. Id. at 324, 106 S.Ct. 2548.

When considering the evidence, “[d]oubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party.” Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir.2001); see also Boston Old Colony Ins. Co. v. Tiner Assocs., Inc., 288 F.3d 222, 227 (5th Cir.2002). The court should not “weigh evidence, assess credibility, or determine the most reasonable inference to be drawn from the evidence.” Honore v. Douglas, 833 F.2d 565, 567 (5th Cir.1987).

However, the nonmoving party must show more than “some metaphysical doubt as to the material facts.” Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th Cir.1995). Conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation, or only a scintilla of evidence will not carry this burden. Brown, 337 F.3d at 541; Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). The court must grant summary judgment if, after an adequate period of discovery, the nonmovant fails “to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

B. FMLA Claim

The FMLA entitles an eligible employee to a total of twelve weeks of leave each year for, inter alia, “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D); Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir.2004). The FMLA prohibits an employer from “interfering] with, restraining], or denying] the exercise of or the attempt to exercise, any right provided under” the act and from discriminating or retaliating against an employee who exercises her FMLA rights or who opposes an act made unlawful by the FMLA. 29 U.S.C. § 2615(a); Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir.2005); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir.1998).

In general terms, Plaintiff claims that Defendant violated the FMLA by failing to reinstate Plaintiff to her former position, by interfering with the exercise of her rights, and by retaliating against her for exercising and attempting to enforce those rights. The first two of these allegations touch on prescriptive or substantive FMLA rights and invoke entitlement or interference theories of recovery. See Haley, 391 F.3d at 649. Claims for violations of these rights are brought pursuant to 29 U.S.C. § 2615(a)(1). See id. The third allegation fits within the FMLA’s proscriptive rights and falls under the retaliation or discrimination theory of recovery. See id. Plaintiffs may bring claims for violations of proscriptive rights under 29 U.S.C. § 2615(a)(2). See id. The court divides its analysis into two parts corresponding to the two theories of recovery.

1. Entitlement and Interference

A plaintiff may be entitled to recovery if she can prove that she was an eligible employee, that her employer interfered with, restrained, or denied her exercise of FMLA rights, and that she was prejudiced by the violation. 29 U.S.C. §§ 2615, 2617(a)(1); see also Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). “The employer is liable only for compensation and benefits lost ‘by reason of the violation,’ § 2617(a)(l)(A)(i)(I), for other monetary losses sustained ‘as a direct result of the violation,’ § 2617(a)(l)(A)(i)(II), and for ‘appropriate’ equitable relief, including employment, reinstatement, and promotion, § 2617(a)(1)(B).”. Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155; see also Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 740, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).

Among the employee’s substantive FMLA rights are the requirements that the employer grant an eligible employee twelve weeks of leave for an FMLA-quali-fying reason and that the employer reinstate that employee, upon return from a qualifying absence, to her former position or to an equivalent one. 29 U.S.C. §§ 2612(a)(1), 2614(a)(1); Haley, 391 F.3d at 649. An employee who “is unable to perform an essential function of the position because of a physical or mental condition” loses the right. 29 C.F.R. § 825.214(b). To be equivalent, the position must be “virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status.” 29 C.F.R. § 825.215(a); see also Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 766 (5th Cir.2001).

The FMLA also protects benefits previously accrued by the employee and requires the employer to maintain coverage under its group health plan. 29 U.S.C. § 2614(a)(2), (c). In addition to any direct violation of these and other substantive rights, an employer may be liable for interfering with an employee’s attempted exercise of her FMLA rights. Cf. 29 U.S.C: § 2615 (including the prohibition against the interference with FMLA rights).

Defendant does not debate that Plaintiff was an eligible employee. Defendant does ehallenge Plaintiffs allegations of denial and interference. As articulated by Plaintiff in the headings of her motion, Plaintiffs specific allegations are: 1) Defendant improperly counted Plaintiffs long-term disability leave as FMLA leave; 2) Defendant failed to notify Plaintiff that it had designated her paid long-term disability leave as FMLA leave; 3) Defendant failed to provide Plaintiff with other FMLA-re-quired notice (specifically, written notice that her leave would be counted against her FMLA leave allotment); 4) Defendant improperly sought a second opinion from a doctor “regularly” utilized by Defendant; 5) Defendant improperly relied upon Dr. Bailey’s report to bar Plaintiff from returning to work; 6) Defendant failed to provide Plaintiff with a copy of the IME report; and 7) Defendant failed to seek a third medical opinion regarding Plaintiffs fitness for duty.

a. Long-term Disability Leave

One of the most significant areas of contention is whether Defendant was allowed to count Plaintiffs long-term disability leave as FMLA leave. Plaintiff bases her argument that Defendant was not allowed to do so, primarily on the following language from Defendant’s Firm Organization and Administration Manual: “And while FMLA permits an employer to include paid vacation or disability periods in the leave, Ernst & Young elects the more generous policy of treating any paid and unpaid portions of time, which might be available under other firm policies, as separate from Family Medical Leave.”

As Plaintiff interprets Defendant’s policies, long-term disability is “available under other firm policies” and, therefore, is “separate from Family Medical Leave” (which Plaintiff reads to mean “FMLA leave”). Plaintiff argues, in essence, that the language of Defendant’s policy quoted here, Defendant’s failure to state affirmatively that long-term disability does count toward FMLA leave, and Defendant’s status as plan sponsor and administrator of the long-term disability policy all plainly indicate that long-term disability is not counted as FMLA leave. Defendant contends that, because the long-term disability program is an insured plan administered by Unum, it is not a firm policy. Defendant also points to a difference between “Family Medical Leave” under its policy and “FMLA leave.”

This is an interesting debate, and the court could engage in the deconstruction of Defendant’s policies to decide the issue. However, such an exercise is unnecessary because the determination of whether Defendant’s policy includes or does not include long-term disability leave in the “Family Medical Leave” offered as a benefit of employment with Defendant is simply not material to the issue of whether the FMLA requires that long-term disability leave be excepted from FMLA leave.

The FMLA only requires that an employer grant each employee twelve weeks of leave each year for FMLA-quali-fying reasons, such as a serious health condition. See 29 U.S.C. § 2612(a)(1). It does not dictate that long-term disability leave shall NOT run concurrently with FMLA leave. In fact, the applicable regulations point to the contrary conclusion:

Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, the employer may designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave entitlement.

29 C.F.R. § 825.207(d)(l)(specifically addressing disability leave allowed for the birth of a child); see also 29 U.S.C. § 2612(d)(2)(allowing substitution of accrued paid leave for FMLA leave). The Eleventh Circuit addressed the employer’s freedom under the FMLA to deem paid sick leave as running either consecutively or concurrently with FMLA leave and stated:

[A]n employer who is subject to the FMLA and also offers a paid sick leave policy has two options when an employee’s leave qualifies both under the FMLA and under the employer’s paid leave policy: the employer may either permit the employee to use his FMLA leave and paid sick leave sequentially, or the employer may require that the employee use his FMLA leave entitlement and his paid sick leave concurrently.

Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1205 (11th Cir.2001). The court finds nothing that prevents application of these concepts to paid long-term disability leave.

To hold otherwise would unduly burden employers generally (and Defendant specifically) and would run afoul of Congress’s intent in enacting the FMLA. See 29 U.S.C. § 2601 (“It is the purpose of this Act ... to entitle employees to take reasonable leave for medical reasons ... in a manner that accommodates the legitimate interests of employers ....”); Strickland, 239 F.3d at 1206 (“To balance the needs of employers and sick employees, Congress intended that the FMLA provide employees with a minimum entitlement of twelve weeks of leave, while protecting employers against employees tacking their FMLA entitlement on to any paid leave benefit offered by the employer.”) Under Defendant’s disability program, short-term disability benefits extend for up to five months, and long-term disability benefits may extend for several years (contingent on the fulfillment of certain age requirements and proof of continuing disability). If Defendant were unable to count long-term and short-term disability against FMLA leave, an employee could be entitled to FMLA rights for many years after ceasing to work.

In support of her position, Plaintiff argues that any violation of Defendant’s policies by Defendant is tantamount to an FMLA violation. In Plaintiffs view, Defendant’s policies (purportedly) dictate that long-term disability leave be separate from FMLA leave. Therefore, she argues, Defendant violated the FMLA by failing to honor its leave policy, even though it is more generous than what is required by the FMLA. The court is unconvinced. A company does not expand the scope of its statutory obligations by offering employees broader rights than those required by Congress. See Dolese v. Office Depot, Inc., 231 F.3d 202, 203 (5th Cir.2000)(holding that an employer’s policies that define employee leave eligibility more generously than the FMLA do not create an FMLA cause of action).

In sum, Plaintiff has failed to cite to any statutory, regulatory, or other legal authority supporting her position that counting long-term disability leave against her FMLA allotment violates the FMLA. To the extent that Defendant ran Plaintiffs FMLA leave concurrently with her long-term disability leave, it did not act improperly. At the end of the day,. Plaintiff received approximately nine months of leave before she submitted any return-to-work certification and almost twelve months of leave before she was terminated. Defendant maintained Plaintiffs health coverage under its group plan throughout the entire time. Defendant did not violate the FMLA by providing less than the statutorily-required twelve weeks of FMLA-qualifying leave.

b. Notice

A related argument raised by Plaintiff is that Defendant interfered with her FMLA rights by failing to notify her in writing that her long-term disability leave counted against her FMLA entitlement. Defendant’s position is that Defendant provided Plaintiff with notice, but that, even if Defendant did fail to notify Plaintiff, the failure does not result in the entitlement to leave beyond that required by the statute.

Employers that have written policy manuals must include information concerning FMLA entitlements and employee obligations under the FMLA. 29 C.F.R. § 825.301. Upon notice by the employee of the need for FMLA-qualifying leave, the employer bears the burden of designating paid or unpaid leave as FMLA leave. 29 C.F.R. §§ 825.208(a), 825.303(a). The employer must give prompt notice to the employee that paid leave is designated as FMLA-qualifying and will be counted against her FMLA leave entitlement. 29 C.F.R. § 825.208(b)(1). The regulations require that the employer do so prior to the commencement of the leave, provided the employer has sufficient information to make that determination. 29 C.F.R. § 825.208(c).

In 2002, the Supreme Court invalidated the regulatory provision that granted an employee twelve additional weeks of FMLA leave when an employer failed to notify the employee that leave taken counted against her FMLA entitlement. Ragsdale, 535 U.S. at 84-96, 122 S.Ct. 1155. In reaching that conclusion, the Court explained that an employer’s failure to designate leave as FMLA leave could entitle the employee to relief, but only if the notification failure prejudiced the employee or impaired the employee’s FMLA rights. See id. at 90, 122 S.Ct. 1155.

Plaintiffs argument lacks merit for several reasons. First, the evidence does not support it. Defendant notified Plaintiff, by telephone on August 23, 2002, and in writing on August 29, 2002, that her FMLA leave commenced on August 29, 2002. On several occasions, Plaintiff acknowledged this as the date her FMLA leave began to run. Therefore, Defendant complied with the notification requirement by prospectively designating Plaintiffs leave as FMLA-qualifying.

Second, even if Defendant failed affirmatively to notify Plaintiff that it would count long-term disability toward FMLA leave, it did not violate the FMLA. At the time that Defendant made the determination that Plaintiffs leave qualified as FMLA leave, Plaintiff had not applied for long-term disability. Plaintiff submitted her long-term disability application no earlier than January 13, 2003, more than nineteen weeks after her designated FMLA leave commenced. Not until mid-June 2003 did Unum approve Plaintiffs claim for long-term disability and grant payments for the period December 22, 2002, through May 15, 2003. Thus, at the time of the FMLA designation, Defendant had no reason to mention how it planned to treat long-term disability leave. Moreover, Defendant complied with the regulations by including information in its manual regarding the scope of FMLA protection, including the FMLA’s guarantee of twelve weeks of qualifying leave.

Third, as a matter of law, Plaintiffs twelve weeks of FMLA-protected leave began on August 29, 2002, and ended on November 21, 2002. The parties’ various characterizations of Plaintiffs leave and arguments as to the dates of her FMLA leave have no bearing on the application of the FMLA. As mentioned above, neither Defendant’s policies nor Plaintiffs understanding of the policies expand her legal rights under the. FMLA. See Dolese, 231 F.3d at 203. Accordingly, none of Plaintiffs long-term disability leave actually overlapped with her FMLA leave.

Defendant neither failed to designate Plaintiffs leave as FMLA-qualifying nor interfered with Plaintiffs FMLA rights with regard to the issue of notice.

c. Reinstatement and Interference with Reinstatement

As the court understands Plaintiffs arguments, Plaintiff claims that Defendant violated her FMLA rights by failing to reinstate her on two occasions. The first time was in December 2002 and the second in May 2003. Based on the court’s conclusion that Plaintiffs twelve weeks of FMLA leave ended on November 21, 2002, the court finds that Plaintiff was not entitled to reinstatement in either December 2002 or May 2003. However, Plaintiff still may be entitled to recover for Defendant’s alleged interference with her FMLA rights. That is, if Defendant prevented Plaintiffs timely return, then it may be liable under the FMLA. Plaintiff alleges that Defendant interfered with her return to work by requiring that she submit to an IME before reinstatement.

An employer may require certification of the employee’s ability to return to work prior to restoration, as long as the request is pursuant to a uniformly-applied policy or practice. 29 U.S.C. § 2614(a)(4); 29 C.F.R. § 825.310(a), (f). The regulations state:

The certification itself need only be a simple statement of an employee’s ability to return to work. A health care provider employed by the employer may contact the employee’s health care provider with the employee’s permission, for purposes of clarification of the employee’s fitness to return to work. No additional information may be acquired, and clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee’s return to work while contact with the health care provider is being made.

29 C.F.R. § 825.310(c). An employee who fails to submit a fitness-for-duty certification at the end of FMLA-qualifying leave may be terminated. 29 C.F.R. § 825.311(c).

Defendant’s basis for requiring an IME by its own physician as a condition of Plaintiffs return to work after August 20, 2002, is not clear in the record. According to the testimony, an employee assistance counselor directed Barr to send Plaintiff home on August 20, 2002, and to schedule her for an IME. Defendant points neither to a company policy justifying this action nor to any contemporaneous articulation of its reasons for this action.

Although Barr subsequently informed Kumar that Defendant would accept additional information from Plaintiffs physician, nothing in evidence suggests that Defendant’s intention was to allow Plaintiff to return to work upon a release from her treating physician. Certainly, no evidence reveals that it was communicated to Plaintiff that she would be able to return to work if she presented a medical release from her treating physician. In fact, the evidence makes clear that Defendant would not allow Plaintiff to return until she was released by Defendant’s physician and repeatedly told this to Plaintiff.

The FMLA does not authorize an IME to determine whether an employee can return to work from FMLA leave. Defendant’s FMLA rights extended only as far as requiring compliance with its usual practice of reinstating FMLA-eli-gible employees upon the submission of return-to-work certifications from treating physicians. See 29 C.F.R. § 825.310(a). If a need for clarification had arisen based on that certification, Defendant then could have had its health care provider contact Plaintiffs treatment provider. See 29 C.F.R. § 825.310(c). Importantly, Defendant was not allowed to delay Plaintiffs return from FMLA leave based on a need for clarification. See id.

In defense of the IME, Defendant now cites Cooke v. C. Bean Transp., Inc., 72 Fed.Appx. 740, 744 (10th Cir.2003), an unpublished opinion in which Tenth Circuit held that a fitness-for-duty exam did not violate the FMLA when it was required by Department of Transportation regulations, and Porter v. U.S. Alumoweld Co., 125 F.3d 243, 247 (4th Cir.1997), an opinion in which the Fourth Circuit held that a fitness-for-duty exam allowed by the ADA did not violate the FMLA. As recognized in those opinions, if governed by state or local law, the terms of a collective bargaining agreement, or the ADA, the employee’s return is subject to the applicable provisions. See 29 U.S.C. § 2614(a)(4); 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 825.310(b).

In its briefing on the ADA claim, Defendant argues that the IME was a fitness-for-duty examination authorized by the ADA as necessary to determine Plaintiffs ability to perform job-related functions. Cf. 42 U.S.C. § 12112(d)(4) (explaining when examinations are prohibited and when they are acceptable). However, the testimony recounting the events of August 20 does not support a finding, as a matter of law, that Plaintiff was unable to perform job-related functions or that a fitness-for-duty examination was consistent with business necessity. According to Plaintiff, she became upset when her supervisor strongly critiqued her past performance; and, although she did cry at times while discussing the conversation with Barr, she made no threats to herself or others, remained coherent, did not become hysterical, and remained capable of performing her job. If accepted as true, Plaintiffs account reveals no conduct on her part that would justify Defendant removing her from the workplace and demanding an IME.

Thus, a question of fact and credibility prevents the court from determining whether the IME was authorized by the ADA. If the IME was not authorized by the ADA, Defendant violated Plaintiffs FMLA rights by requiring clearance by its physician before allowing Plaintiff to reenter the workplace at the end of her FMLA leave.

Even if Defendant violated Plaintiffs rights, Plaintiff also must prove that the violation caused her prejudice. See 29 U.S.C. § 2617(a)(1); Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155. If, on the one hand, Defendant can show that Plaintiff could not have acquired a return-to-work certification from her physician at or near the time that her FMLA leave expired, then she suffered no prejudice. On the other hand, if Defendant impeded the exercise of her right to reinstatement through the imposition of the IME requirement, then Plaintiff is entitled to recovery under the FMLA.

The summary judgment raises several questions of fact that must be resolved before the court can determine whether Plaintiff suffered prejudice as a result of the IME requirement. At the conclusion of her FMLA-protected leave, Plaintiff did not submit certification from her own physician indicating that she was capable of returning to work. However, some evidence suggests that her physician may have been willing to provide a release before November 21, 2002.

On November 11, Dr. Sprabery reevaluated Plaintiff and found her to be “cooperative, alert, euthymic, congruent to mood, logical and goal-directed, with no suicidal or homicidal ideations or hallucinations.” Plaintiff reported that she was scheduled for an IME “to return to work.” Although nothing in his progress note specifically indicates that he would release Plaintiff to work, nothing precludes it. Plaintiff had no reason to request a release from Dr. Sprabery because she was under the misapprehension that she needed (and would be able) to get one from Dr. Bailey. At her next appointment with Dr. Sprabery almost a month later, Dr. Sprabery’s notes reflect virtual identical impressions to those from November meeting. At her December appointment, Plaintiff acquired a release form from Dr. Sprabery.

A jury must review this and other evidence to determine whether Plaintiff may have been able to produce a timely return-to-work certification. Because the court cannot decide this fact issue, it cannot determine whether Plaintiff is entitled to recovery for Defendant’s violation of the FMLA’s return-to-work provisions. This is left for trial.

2. Retaliation

A plaintiff also may be entitled to recovery if the employer retaliates against her for exercising her FMLA rights. 29 U.S.C. §§ 2615, 2617. Discrimination claims brought pursuant to the FMLA are not significantly different from similar claims brought pursuant to Title VII or other anti-discrimination laws. Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir.1999). Therefore, in the absence of direct evidence, courts analyze FMLA retaliation claims, like Title VII claims, under the burden-shifting approach first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and recently modified in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), and Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir.2004). Richardson, 434 F.3d at 333.

Under the “modified McDonnell Douglas approach,” a plaintiff may trigger a presumption of discrimination by establishing a prima facie case. Richardson, 434 F.3d at 333; Rachid, 376 F.3d at 312. To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that: 1) she engaged in a protected activity; 2) she suffered an adverse employment decision; and 3) causation connects the two. Richardson, 434 F.3d at 333.

Once a plaintiff has established a prima facie case, the burden shifts to the defendant to proffer legitimate, non-discriminatory reasons for its adverse employment action. Richardson, 434 F.3d at 333; Rachid, 376 F.3d at 312. If the defendant satisfies this burden, then the presumption of discrimination dissolves. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002).

The plaintiff must then offer evidence tending to show “either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiffs protected characteristic (mixed-motives alternative).” Rachid, 376 F.3d at 312 (internal quotation and alteration marks omitted); see also Richardson, 434 F.3d at 333 (analyzing FMLA retaliation claim under the modified approach). If the plaintiff shows that the illegal discrimination was a motivating factor, the defendant must respond with evidence that the same employment decision would have been made regardless of discriminatory animus. Rachid, 376 F.3d at 312.

In this case, Defendant does not challenge Plaintiffs claim that she was terminated, but argues that she cannot produce evidence in support of either of the other two prima facie elements. Plaintiff asserts that she engaged in a protected activity on June 30, 2003, when her attorney contacted Defendant on her behalf and alleged that Defendant violated the FMLA. According to Plaintiffs theory, Defendant retaliated against her opposition to its illegal activities by firing her approximately six weeks later. Defendant argues in response that the letter does not qualify as protected activity under the FMLA because the letter: 1) is an inadmissible settlement offer; and 2) seeks money and other consideration to avoid threatened litigation rather than seeking the pro