Full opinion text
MEMORANDUM AND ORDER ROBINSON, District Judge. Plaintiff Denise Coleman filed this action against her former employer, Blue Cross Blue Shield of Kansas (“Blue Cross”), asserting that she was unlawfully terminated from her position as a data capture employee on August 17, 2004. Plaintiff alleges the following claims for relief: (1) interference under the Family Medical Leave Act (“FMLA”); (2) retaliation under the FMLA; (8) intentional discrimination under the Americans with Disabilities Act (“ADA”); (4) retaliation under the ADA; and (5) worker’s compensation retaliation under Kansas law. The Court now considers defendant’s Motion for Summary Judgment (Doc. 58), defendant’s Motion to Strike Plaintiffs Response to Defendant’s Motion for Summary Judgment (Doe. 72), and plaintiffs Motion to Amend/Correct Memorandum in Opposition to Motion (Doc. 79). The motions are fully briefed and the Court is prepared to rule. As explained more fully below, the Court denies defendant’s motion to strike the response, denies plaintiffs motion to amend the response, and grants defendant’s motion for summary judgment. I. Summary Judgment Standard Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A fact is only material under this standard if a dispute over it would affect the outcome of the suit. An issue is only genuine if it “is such that a reasonable jury could return a verdict for the nonmoving party.” The inquiry essentially determines if there is a need for trial, or whether the evidence “is so one-sided that one party must prevail as a matter of law.” The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact. “A movant that will not bear the burden of persuasion at trial need not negate the nonmovant’s claim.” The burden may be met by showing that there is no evidence to support the nonmoving party’s case. If this initial burden is met, the nonmovant must then “go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party and that it may not make credibility determinations or weigh the evidence. When deciding a summary judgment motion, the Court may consider evidence submitted even if it would not be admissible at trial. The Tenth Circuit recently explained, Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Nonetheless, “the content or substance of the evidence must be admissible.” Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form. The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that “[sjupporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence,” Fed.R.Civ.P. 56(e), but also implicit in the court’s role at the summary judgment stage. To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury. II. Motion to Strike and Motion to Amend/Correct Response Memorandum On February 12, 2007, after obtaining three extensions of time from the Court, plaintiff filed her memorandum in opposition to summary judgment (Doc. 71) (hereinafter “response”). The third section of the response is entitled “Plaintiffs Response to Defendant’s Alleged Statement of Facts” and spans about nineteen pages. While it includes numbered paragraphs which correlate to defendant’s statement of facts, only three of the ninety-one paragraphs provide a citation to the summary judgment record for support. The argument and authorities section of the response, spanning about forty-two pages, includes a review of evidence that is not cited nor discussed in the response to defendant’s statement of facts. The day after plaintiff responded to defendant’s motion for summary judgment, defendant filed a motion to strike the response (Doc. 72). The basis for the motion is that the response exceeds the page limitation set forth in D. Kan. R. 7.1, the April 16, 2006 Scheduling Order, and the Pretrial Order. Furthermore, the reply memorandum argues that plaintiffs response to defendant’s statement of facts is deficient under applicable rules, and thus, the facts as stated in defendant’s memorandum in support of summary judgment should be deemed admitted. Specifically, defendant complains that: (1) plaintiffs counsel’s responses to the statement of facts do not contain citations to the record for support; and (2) much of the response relies upon plaintiffs own affidavit which contains primarily inadmissible evidence, or in some areas constitutes a “sham affidavit” because it contradicts her deposition testimony. The Court will address defendant’s arguments concerning plaintiffs affidavit in the next section of this memorandum and order. Plaintiffs counsel does not deny that he exceeded the page limit for his brief by twelve pages. Nor does plaintiffs counsel deny that he has ignored the rules applicable to memoranda in response to summary judgment motions as set forth in Fed.R.Civ.P. 56 and D. Kan. R. 56.1. Instead, counsel urges the Court that these deficiencies have caused no prejudice to defendant and should not only be excused, but that he should get a “second bite at the apple” by amending his response eleven weeks after the original response was filed and over six weeks after the reply was filed. The Court cannot countenance such a result. The Court declines to quote extensively for counsel the rules that govern summary judgment practice not only in this Court, but in all federal courts. The Court has done so in the past with this counsel to no avail. Counsel for plaintiff is not unfamiliar with these rules, nor is he new to the practice of law in this Court. While the Court appreciates counsel’s apologies, it is his very experience with this Court and this federal district that makes many of his arguments concerning his failure to adhere to the rules disingenuous. For example, in the response to defendant’s motion to strike, counsel argues that he should, after the fact, be granted leave to exceed the page limit. He contends that this is because both parties have conceded that the issues in this case are lengthy and complex, making them difficult to address within the thirty-page limit set forth in the local rules. The Court fails to see the difficulty for counsel in seeking prior leave of Court to exceed the page limit on such grounds. Instead, counsel asks the Court to either post hoc allow him leave to exceed the page limit, or to somehow allow him to “remove factual statements from the arguments and authorities section and include them as an exhibit.” The technical deficiencies in the summary judgment response identified by defendant are inextricably intertwined. Had counsel simply followed the rules applicable to summary judgment motion practice, such a result would be unnecessary. Certainly if the statements to which counsel refers are truly arguments, they are inappropriate for an exhibit. And if they are instead factual statements, they should have been included in the response to defendant’s statement of facts, or in plaintiffs additional statement of facts. Such statements would not count toward the thirty-page limit. Counsel further argues that defendant has not suffered prejudice as a result of these admitted deficiencies. In terms of exceeding the page limit, counsel maintains that “[t]he 12 pages of verbatim testimony can be just as much part of plaintiffs answer outside the section regarding arguments. In fact, defendant’s attachments to its motion have several hundreds of pages more than plaintiffs attachments.” Again, such an argument is a disingenuous attempt by counsel to somehow justify blatant disregard for the rules of practice and procedure. First, the obvious reason behind the rule requiring specific citation to the record is so the Court is not required to conduct a fishing expedition of the record. By specifically citing to the record, the Court can immediately refer with particularity to the evidence claimed to support a particular point. So long as such references are available to the Court, the volume of evidence is irrelevant. Given that these verbatim quotations are not included, even by reference, in plaintiffs response to the statement of uncon-troverted facts, the Court does not see how these would create a genuine issue of material fact, regardless of the page limitation issue. Counsel also suggests that he is somehow entitled to a greater page limit for the response since defendant is entitled a reply brief. But it is elementary in this district that the moving party on any civil motion is entitled a reply brief. The rules take into account the burden on any moving party; in particular, on a party moving for summary judgment, where the facts are viewed in the light most favorable to the non-moving party. While the Court declines to strike the entire response brief as a sanction for violating this rule, as described below, it will not become plaintiffs advocate by cross-referencing and incorporating all of the factual references in the argument and authorities section of the brief to the response to defendant’s statement of facts section. In his motion to amend his response, counsel again argues that granting his motion would not cause defendant prejudice. He claims that the motion “is submitted in further efforts by plaintiff to attempt to simplify the Court’s review of this matter.” While plaintiffs motion is rare, it is essentially a request to file out of time, which requires a showing of excusable neglect. Excusable neglect is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant. The determination of whether excusable neglect has been established is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission including: (1) the danger of prejudice; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reasons for the delay which includes whether it was within the reasonable control of the party seeking to show excusable neglect; and (4) whether that party acted in good faith. The delay in filing this motion alone belies the notion that the original deficiencies in the response were due to excusable neglect. The motion for leave to amend was filed on May 2, 2007, just short of one month before this case was set for trial and about six weeks after the defendant filed an eighty-nine page reply brief. Not only would allowing the amendment interfere with the Court’s consideration of this motion, which began prior to the filing of the motion for leave to amend, but it would also require the Court to provide defendant with an opportunity to reply again. Such a result would cause delay that would substantially impact the judicial proceedings. Further, counsel has not proffered anything that would convince this Court that his failure to file the proposed amended response in the first instance was outside of his control. Counsel provides this Court with no explanation as to why he was unable adhere to the rules when he initially filed his response brief, nor why he did not see fit to request leave to file a sur-reply. The danger of prejudice in granting this motion is likewise great. As noted, granting the motion would require providing defendant with an opportunity to reply again. But defendant has already spent considerable time preparing the original reply brief, much of which deals with the technical deficiencies in the response. To require defendant to rework a reply based on a new response is patently unfair. Plaintiff may not enjoy the benefit of reviewing defendant’s reply brief for six weeks while the motion goes under advisement only to rework his brief at the eleventh hour. Furthermore, the Court has reviewed plaintiffs proposed amended response brief and does not find that it would substantially aid in the Court’s resolution of the motion for summary judgment, nor does it rectify all of the deficiencies cited by defendant in its filings. While purporting to amend his response to comply with the rules, the amended response notably exceeds the thirty-page limitation found in D. Kan. R. 7.1. With regard to the responses to defendant’s statement of facts, counsel essentially amended the response by adding citations to specific paragraphs of plaintiffs affidavit. While this is an improvement over the complete lack of citation in the original response, it still begs the other evidentiary objections to plaintiffs affidavit raised in defendant’s reply brief. As the Court will address more fully in the next section, the Court agrees with defendant that many statements in this affidavit are inadmissible because they are either conclusory, not based on personal knowledge, or are hearsay. Specific citations to this affidavit do not change the Court’s analysis on that issue. In sum, the Court finds no possible excusable neglect that could justify granting plaintiffs counsel’s motion for leave to amend his response. While counsel repeatedly assures the Court that this motion is filed in an attempt to aid in the Court’s deliberation of the summary judgment motion, it has in fact caused the opposite result. The fact that counsel has repeatedly disregarded the rules of practice in this Court and in this district also supports an inference that such mistakes are not made in good faith. In just the last year, this Court has admonished counsel multiple times for failing to follow elementary rules of summary judgment practice. The Court declines to simply admonish counsel in this case and instead denies his motion. The Court will consider plaintiffs original response brief but declines to search the record for eviden-tiary support for her contentions. As described fully in the next section, to the extent that defendant’s statement of facts are supported by the record, they are largely deemed admitted due to plaintiffs failure to properly support her contentions in the original response that disputed facts exist that defeat defendant’s motion for summary judgment. III. Uncontroverted Facts A. Evidentiary Issues Before addressing defendant’s statement of facts in paragraph format, plaintiff prefaces: “All responses to defendant’s alleged statement of facts were provided by Ms. Coleman under oath as indicated in the attached affidavit.” Plaintiffs affidavit is fifteen pages in length and spans ninety-four paragraphs. At the beginning of the affidavit, plaintiff states that she has “reviewed defendant’s motion for summary judgment and its 93 statements of alleged facts.” Defendant objects to plaintiffs method of incorporating her own affidavit into the response to defendant’s statement of uneontroverted facts. Defendant further objects that much of plaintiffs affidavit is inadmissible because it is either not based on personal knowledge, is concluso-ry, or hearsay. As this Court has explained to counsel in the past, the Tenth Circuit has held that merely placing evidence in the record on summary judgment without pointing the Court to it is insufficient: “it is the responding party’s burden to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct it’s own search of the record.” This is precisely what plaintiffs counsel expects of this Court by placing limited references to other portions of the record in its arguments and authorities section but not in its response to defendant’s statement of facts, or any additional statement of fact. This Court declines to conduct a fishing expedition of plaintiffs affidavit or any other record evidence in order to support the assertions made in her response. In line with D. Kan. R. 56. 1, the Court will deem admitted for the purpose of summary judgment all facts that are not controverted by a readily identifiable portion of the record. Insofar as the affidavit is responsive to defendant’s statements of fact, Fed. R.Evid. 602 requires that a testifying witness “ha[ve] personal knowledge of the matter” testified to. Also, Fed.R.Civ.P. 56(e) requires that affidavits be made on personal knowledge and “set forth such facts as would be admissible in evidence .... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” “Under the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.’ ” Statements of “mere belief in an affidavit must be disregarded.” There are multiple statements of mere belief in plaintiffs affidavit that must be disregarded here, despite her assertion that all statements are based on her personal knowledge. In other statements, there is no indication that plaintiff could have actually perceived or observed that which she testified to. Some statements, such as plaintiffs recollections of what her physicians told her, are simply inadmissible hearsay. These statements may not be considered by the Court as they are inadmissible not just in form, but also in substance. Finally, defendant argues that many of the statements in plaintiffs affidavit contradict prior statements in her deposition; therefore, it is a “sham affidavit.” The Court may not disregard plaintiffs affidavit simply because it conflicts with plaintiffs prior sworn statements. But “such evidence may be disregarded when a court concludes that the evidence is merely an attempt to create a sham fact issue.” “[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting [evidence] contradicting his own prior testimony.” The Court looks at the following factors to determine if plaintiffs affidavit presents a sham fact issue: “whether the [party] was cross-examined during his earlier testimony, whether the [party] had access to pertinent evidence at the time of his earlier testimony, or whether the [contested evidence] was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the [contested evidence] attempts to explain.” Plaintiff was cross-examined during her deposition and there is no evidence that she was without pertinent evidence at the time of her earlier testimony, or that the affidavit is based on newly discovered evidence. Likewise, the affidavit does not reflect that plaintiff was confused during her deposition to the extent she was required to explain the confusion in a later affidavit. To the extent plaintiff contradicts her pri- or sworn testimony, the Court will disregard her statements. In accordance with Rule 56, defendant has properly supported its motion for summary judgment with affidavits, deposition testimony, and other admissible evidence. In response, defendant has failed to controvert the facts asserted in defendant’s motion. As such, the Court considers only whether defendant is entitled to summary judgment as a matter of law, based on the undisputed facts set forth in its motion. B. Undisputed Facts The following facts are either uncontro-verted, stipulated to, or viewed in the light most favorable to plaintiff. Plaintiff Denise Coleman began working at defendant Blue Cross, an insurance company, on August 31, 1981. At the time of her termination on August 17, 2004, and for several years prior, plaintiff held the position of data capture employee. Plaintiffs immediate supervisor was Jennifer Berroth and her manager was Brad Moser. The position of data capture employee is essentially a data entry position for insurance claims filed by health care providers. The data capture employee reads from an electronic image of the claim form and keys into a computer database the claim information: identification number, patient name, and type of service provided. Defendant receives thousands of these claims each day. An error in entering the claim information impacts the processing of the claim and the payment of the claim. Defendant requires the data capture employees to enter 286 claims during a daily shift, which works out to an average of one claim every 1.65 minutes, accounting for break time, at an accuracy rate of 97%. The supervisors of each department receive daily reports on each data capture employee’s accuracy and speed. If a data capture employee is unable to meet the performance standards set by defendant, a progressive discipline system is in place which includes counseling, written warnings, and eventual termination. FMLA Requests Between 1997 and 2004, plaintiff filed numerous requests for FMLA leave for a myriad of health problems. Throughout this time period, plaintiff requested leave for the following maladies: back pain, hypertension, headaches, depression and anxiety, gastrointestinal problems, uterine problems, a change in bowel habits, dyspepsia, back pain, abnormal female genital pain, stress, asthma, muscle spasms, bronchitis, pneumonia, sarcoidosis, and diabetes. Defendant approved plaintiffs FMLA leave requests on all but two occasions. First, plaintiff requested leave for a muscle spasm on March 5, 2001; and she requested leave for the period of March 5, 2001 through March 4, 2002 on a full-time and intermittent basis. Defendant denied this request because there was no health care provider certification indicating that plaintiff was suffering from a “serious health condition.” The certification form was filled out by plaintiffs chiropractor, Dr. Penn. When asked to state the nature of plaintiffs incapacity, he indicated “NA.” Dr. Penn stated that plaintiff would need to be absent from work on an intermittent basis in order to attend ten to fifteen appointments. When asked to check the applicable category(ies) of the patient’s condition, Dr. Penn marked “none of the above.” Based on this certification, defendant denied plaintiffs request for leave. Second, plaintiff requested FMLA leave for bronchitis and back pain on May 24, 2001. Plaintiff requested leave for the period ending on May 3, 2002 on a full-time basis. Along with her request, plaintiff included a note from her physician, Dr. Atwood, stating that she should be relieved from work on May 23 through May 24, 2001 due to illness. On the certification form, Dr. Atwood wrote that plaintiff would be required to be off of work through May 25, 2001 due to acute bronchitis. Defendant denied the request “based on information provided by Dr.’s office condition is not considered a serious health condition.” On March 26, 2003, plaintiff requested and was approved for FMLA leave because she was scheduled to have a hysterectomy on March 31, 2003. But just prior to the surgery, plaintiff contracted pneumonia, so the surgery was postponed until September 18, 2003. Defendant’s records indicate that a new leave request was submitted for the September surgery, which was approved. On July 28, 2003, plaintiff requested leave for the period of July 11, 2003 through December 31, 2003 on a full-time basis for sarcoidosis and stress. Dr. Moss filled out a certification form, indicating that plaintiff required occasional office visits but that she was not incapacitated. Dr. Moss also indicated that it was not necessary for plaintiff to work on less than a full schedule. The leave request was approved for intermittent leave for two hours at a time for the period of July 11, 2003 through September 11, 2003. On August 3, 2004, plaintiff requested FMLA leave from July 28, 2004 through December 2004 on a full-time basis. Plaintiff stated that she required leave due to her sarcoidosis, a heart problem, high blood pressure, diabetes, stress, depression and a stomach problem. She stated that she was having a surgical procedure on July 28, 2004. Dr. Thomas Welton filled out a certification indicating that plaintiff suffered from nonucler dyspepsia and would need intermittent periods off work for doctor’s appointments. Plaintiffs social worker, Bernard Nobo, submitted a certification form on August 4, 2004 stating that plaintiff suffered from depression and would need intermittent periods off work for appointments. On August 12, 2004, Dr. Moss submitted a certification form stating that plaintiff was treated on July 27, 2004 for lab work and on August 4, 2004 for a sleep study. He indicated plaintiff would be rechecked in one month and after that, four months, and then every six months. Plaintiffs August 3, 2004 FMLA request was approved on August 10, 2004 for intermittent leave in order to attend doctor’s appointments from July 28, 2004 through October 28, 2004. Plaintiff did not produce a certification form for the surgery she referenced on the August 3, 2004 leave request. Workers’ Compensation Claims When defendant receives a report of a work-related injury, the Corporate Health Services department forwards the claim to Thomas McGee, L.C. (“Thomas McGee”), defendant’s outside third-party administrator. Thomas McGee coordinates the employee’s care, determines compensability and authorizes medical treatment. While a workers’ compensation claim is pending, the Corporate Health Services department is responsible for making sure that the employee receives medical care, and facilitates communication between the employee, the medical providers, and Thomas McGee. The department is also responsible for addressing any work site issues that arise. If an injured employee retains an attorney to handle their workers’ compensation claim, Thomas McGee’s insurance adjuster will not communicate with the employee directly, but instead communicates with the employee’s attorney and defendant’s attorney. Plaintiff filed two workers’ compensation claims during her tenure at Blue Cross. First, on May 20, 1999, plaintiff submitted a report of accident, stating that she had been injured on October 8, 1997. Plaintiff reported that her back, neck and hand hurt and her fingers were swelling when she was keyboarding. Corporate nursing notes indicate that plaintiff was diagnosed with right arm sprain by Dr. Geis, after multiple visits, and that she was advised to use splints, and take Daypro. Thomas McGee closed this claim on July 28, 1999. But plaintiff continued to see Dr. Geis through February 27, 2001 on a regular basis, and he prescribed her medication for the pain in her arms and back. Plaintiffs second report of accident was submitted on November 21, 2002, citing pain in her right arm while keying claims on November 18, 2002. According to the corporate nursing notes, plaintiff was immediately counseled to follow conservative treatment measures including ice, rest, and trimming her fingernails. In response to this injury, plaintiff began treatment at Occupational Health Services of America (“OSHA”) in December 2002 that continued through March 16, 2004. She was treated with medication, physical therapy, splinting, and modified work duty. Work Restrictions Physicians at OSHA imposed a number of work-related restrictions on plaintiff during her treatment there. These restrictions included: having a work station evaluation; varying her tasks; wearing a splint when at home; resting for ten minutes per hour; wearing a compression sleeve and wrist splint while working; stopping the use of wrist and elbow splints; doing stretching exercises for five minutes every hour; keying with the left hand while wearing a compression sleeve and wrist splint; alternating using the left and right hands for keying; and ultimately, using the left hand only. Plaintiff was also evaluated by Dr. John Moore on December 9, 2003, who concluded that plaintiff had “mild variant of radial tunnel syndrome” and recommended plaintiff use a compression sleeve, anti-inflammatory medication, do stretching exercises for five minutes every hour, and learn to key with her left-hand. While plaintiffs workers’ compensation claims were pending, the employees in the Corporate Health Services department conducted approximately six evaluations of plaintiffs work station. Plaintiff was provided with special equipment such as an adjustable footrest, a gel wave palm rest, a new chair, a new keyboard, and wrist splints. Because the Corporate Health Services department could not ascertain any other adjustments for plaintiffs work station that would be helpful when plaintiff requested more evaluations, Terri Janda, the Administrator of Corporate Health Services, hired Kansas Rehabilitation Hospital (“KRH”) to come and assess the work station. The KRH recommendations primarily involved adjustments to plaintiffs existing work stations such as lowering the arms and raising the height on her chair. Each recommendation made by KRH was implemented. On February 6, 2004, plaintiffs occupational therapist recommended a special ergonomic keyboard that included a left-hand keypad. Plaintiff had selected a specific keyboard out of a catalog. Janda contacted the occupational therapist and informed her that the company’s usual policy was for a physician to submit a request to the company for any special equipment. Defendant then orders, provides, or modifies computer equipment through its information center. Because defendant had provided plaintiff with an ergonomic keyboard approximately one year prior to this request, Janda contacted plaintiffs treating physician, Dr. Curtis, and asked if it would suffice to provide a detachable left-hand ten-keypad to the ergonomic keyboard that plaintiff was already using. Dr. Curtis agreed and the keypad was received by plaintiff within approximately fifteen days of her request. Defendant viewed plaintiff as subject to work restrictions until at least March 16, 2004. On April 26, 2004, Thomas McGee contacted and provided plaintiffs medical records to Dr. Hendler, asking him to examine plaintiff. Plaintiff advised Dr. Hendler that she was keying with her left hand, as had been recommended. Dr. Hendler believed that plaintiff suffered from a repetitive strain of her upper extremities and scheduled an electrodiagnostic study to learn more about her condition and prescribed her anti-inflammatory medication. He continued her on a modified work duty that had been prescribed by Dr. Curtis at OHSA. After evaluating the test results from the electrodiagnostic study that had been conducted on May 6, 2004, Dr. Hen-dler confirmed his diagnosis that plaintiff suffered from repetitive strain of her upper extremities and that further therapy was unlikely to be helpful. On May 27, 2004, plaintiff was treated by Dr. Hendler and told him that the medications he had prescribed were not helping. Dr. Hendler changed plaintiffs prescriptions to include a muscle relaxer and continued her on a modified work duty. Dr. Hendler explained to plaintiff that the purpose of her being on modified work duty was to allow time to get her symptoms under better control so that she could eventually return to regular duty. On June 10, 2004, plaintiff was examined by Dr. Hendler and complained of severe pain and a patchy loss of sensation over parts of her hands and arms. Dr. Hendler again changed her medication, but noted that the distribution of her abnormality was nonphysiologic. Dr. Hendler explained to plaintiff that the decision to continue working despite her symptoms is a personal choice and not a medical issue. Plaintiff was examined by Dr. Hendler again on June 17, 2004 and reported that none of the medication she had been prescribed by him or other physicians were helpful. Dr. Hendler again noted nonphy-siologic symptoms and concluded that plaintiff was unable to improve with further treatment — she was at maximum medical improvement. He stated that “[tjhere are no identified work restrictions at this time although she certainly has a preference for less repetitive work.” Accordingly, Dr. Hendler submitted a Work Status Report on June 17, 2004 allowing plaintiff to return to regular duty. Dr. Hendler noted after an appointment with plaintiff on June 22, 2004 that no further visits would be required because plaintiffs pain was being treated solely with over-the-counter medication. Plaintiffs Work Performance During the time plaintiff was subject to work restrictions ordered by her physicians, defendant allowed her to process fewer claims than the normal requirement of one every 1.65 minutes. Plaintiff was told that although she could process a lower number of claims, she was still expected to achieve 97% accuracy on those claims she was able to process. Once plaintiff was restored by Dr. Hendler to regular work duty, her superiors at Blue Cross began to assess her performance according to the normal performance criteria applicable to all other data capture employees. On April 26, 2004, a note was purportedly made by human resources personnel that Brad Moser had called them regarding plaintiffs accuracy percentages. Before plaintiff had left on FMLA approved leave from April 1 through April 16, 2004, her accuracy was 91-92%. The note indicates that Moser wanted to give plaintiff an unsatisfactory review that had already been written up before she left on her FMLA leave and then give her a final unsatisfactory review when she returned, explaining that if she does not meet the accuracy goal next time, she will be fired. The note states that Moser was advised to “just start Denise on a fresh quarter as of April 1, 2004 (based on the time she is here) and proceed as he does for all employees.” On July 19, 2004, defendant notified plaintiff in writing that her performance for the week ending July 16, 2004 'had been unsatisfactory, as she was taking an average of four minutes to complete each claim form. On July 26, 2004, defendant again notified plaintiff in writing that her performance for the week ending July 23, 2004 was unsatisfactory, as she was taking an average of 3.94 minutes per claim. This notice informed plaintiff that “termination will result on next unsatisfactory occurrence of production. The acceptable rating is 1.65.” On August 17, 2004, plaintiff received another unsatisfactory report for the weeks ending August 6 and August 13, 2004. Her production had been 4.37 and 3.27 minutes, respectively, per claim. She was also told that for the week ending August 6, 2004, her accuracy rating was 88.24%. At this time she was notified that she was being terminated for failure to meet production and accuracy job performance standards. Other Jobs Prior to plaintiffs termination, on August 12, 2004, defendant offered plaintiff a position as a correspondence specialist. Tonya Fuller, who would be plaintiffs supervisor in this new position, did a walk-through with plaintiff, and discussed the requirements of the job. Plaintiff told Fuller that she could not do the lifting associated with the new position. Fuller replied that they would work with plaintiff regarding, any restrictions that her doctors imposed. Fuller also told plaintiff that she could alternate duties in order to avoid extended periods of data entry. Fuller told plaintiff that the correspondence specialist position would provide the same hourly wage and benefits. On August 16, 2004, plaintiff turned down the correspondence specialist job offer. After plaintiff turned down the correspondence specialist position, the decision was made to terminate her. The decision was made by a group of individuals: Ber-roth, Moser, Fuller, Robert Young, the Director of Human Resources, and Jane Chandler Holt, in-house counsel. Ultimately, though, Young approved the decision to terminate plaintiff. On February 22, 2005, plaintiff applied for Social Security disability benefits. She stated on her application form that she became completely unable to work on August 17, 2004, the date of her termination. She claims to be disabled on the social security application due to both physical and mental conditions. On May 16, 2005, plaintiff submitted an intake questionnaire to the EEOC. IV. Discussion A. FMLA Claims Under the FMLA, an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period “[b]e-cause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” Leave for a serious health condition may be taken intermittently or on a reduced leave schedule “when medically necessary. The taking of leave intermittently or on a reduced leave schedule ... shall not result in a reduction in the total amount of leave to which the employee is entitled ... beyond the amount of leave actually taken.” Plaintiff asserts her FMLA claims under two theories of relief: (1) interference, and (2) retaliation. Defendant urges that summary judgment is appropriate on both claims because they are either barred by the statute of limitations or due to a lack of genuine issue of material fact that could lead a reasonable jury to find in plaintiffs favor on the merits. 1. Statute of Limitations Actions for violations of the FMLA must be brought within two years of the alleged violation. In the case of a willful violation, the statute of limitations is three years. Plaintiff filed her Complaint on December 22, 2005. The parties dispute what alleged violation should be considered for purposes of calculating the statute of limitations. In its motion for summary judgment, defendant addresses what it believed to be plaintiffs FMLA claims. On the interference claim, it addressed the two FMLA claims that were denied in 2001 and on the retaliation claim, it addressed plaintiffs contention that she was charged vacation time for FMLA leave in 2003 and 2004. Plaintiff responds that her claims are based on her termination and on an April 26, 2004 note that allegedly indicates Moser wanted to interfere with plaintiff exercising her rights under the FMLA because he wanted to discipline her before and after her April 1-16, 2004 leave period for performance issues. Defendant maintains that plaintiffs allegations of interference and retaliation made in her response were not previously made in discovery or in the Pretrial Order. The Pretrial Order “ ‘measures the dimensions of the lawsuit,’ and ‘controls] the subsequent course of the action unless modified by a subsequent order.’ ” The Pretrial Order characterizes plaintiffs factual averments on the FMLA claims as follows: Plaintiff contends that during the three years preceding her firing, defendant denied her certain FMLA leave requests, sought to discourage her from taking FMLA leave in various forms including repeated requests for information and otherwise interfered with plaintiffs entitlement to FMLA leave. At the time that defendant fired Ms. Coleman, she was availing herself of the intermittent leave provisions of the FMLA. The Court does not find that plaintiffs factual contentions in the response substantially deviate from these representations. Defendant urges that the interference claims could only be based on the allegation that defendant wrongfully denied plaintiffs FMLA claims. Because defendant only denied plaintiffs FMLA requests on two occasions, March 3, 2001 and May 25, 2001, defendant maintains that those claims are barred even under a three-year statute of limitations. To the extent plaintiff relies on these allegations for her interference claim, defendant is correct. But plaintiff points to an April 26, 2004 note about Moser’s intent to write plaintiff up for her accuracy problems before and after she took FMLA leave in April 2004. Defendant has pointed to a lack of evidence to support the contention that Moser in fact disregarded the advice provided to him, as documented in the April 26, 2004 note, that he start plaintiff on a fresh quarter as of April 1, 2004. There is no evidence of an unsatisfactory report filed in April. Nor is there evidence of Moser’s sentiment actually interfering in plaintiffs use of FMLA leave. Plaintiff asserts in her affidavit, without reference to any particular date, that Mos-er did discipline her and that he placed her in an unfair weekly review process, instead of the monthly review that applied to other employees. The Court finds this insufficient to prove to a rational trier of fact that defendant interfered with plaintiffs exercise of her FMLA rights in April 2004. While the Court finds that the interference claim is barred by the statute of limitations, the Court will nevertheless proceed to address the merits of the claim in the next section and finds that even if the claim is not barred by the statute of limitations, summary judgment is still appropriate. Plaintiff argues her retaliation claim accrued when she was terminated in August 2004, well within the statute of limitations. Defendant argues that there is no factual basis for such a claim. The Court will address the merits of plaintiffs claim below, but for purposes of the statute of limitations, the Court finds that there exists a genuine issue of material fact about when the FMLA retaliation claim accrued. 2. Interference To assert a claim for interference, plaintiff has the burden to show entitlement to FMLA leave, but need not show the employer’s intent to interfere with FMLA leave. Under the interference theory, if an employer interferes with an employee’s FMLA-created right to medical leave, it has violated the FMLA, regardless of its intent. such a case, the employee must demonstrate her entitlement to the disputed leave. A prima facie case of interference requires a showing that: (1) plaintiff was entitled to FMLA leave; (2) that an adverse action by the employer interfered with plaintiffs right to take FMLA leave; and (3) that the employer’s adverse action was related to the exercise or attempted exercise of plaintiffs FMLA rights. Nonetheless, even when an employee requests and can demonstrate an entitlement to FMLA leave, she has no greater rights than the employee who continues to report to work. Thus, an employee may be terminated, even where the termination interferes with her ability to take FMLA leave, so long as she would have been terminated regardless of her leave request. Defendant concedes that plaintiff was entitled to FMLA leave, but argues that there is a lack of evidence to support that it acted adversely to interfere with plaintiffs exercise of her rights under the FMLA. In the response, plaintiff contends that she was denied substantive rights under the FMLA in three ways: (1) defendant exhibited hostility toward her leave requests; (2) Moser was plotting to fire her based on borderline performance results; and (3) she was in the process of applying for intermittent leave under the FMLA when she was terminated. The FMLA does not define “interference,” but Department of Labor regulations provide that interference with the exercise of an employee’s rights includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. If an employer provides a powerful disincentive for taking FMLA leave, it constitutes interference. In this case, defendant points to a lack of evidence that its conduct rose to the level of creating a “powerful disincentive” for taking FMLA leave in contrast to actions that have been prohibited by other courts. First, out of the multitude of FMLA requests made by plaintiff between 1997 and 2004, only two were ever denied by defendant. Both of those requests were denied in 2001, more than three years before she was terminated or before plaintiff alleges any adverse action was taken against her. In McKinzie v. Sprint/United Management Co., the court found that defendant had not interfered with plaintiffs FMLA rights when she was granted leave whenever she requested it. The plaintiff argued that interference was shown by her supervisors’ sarcastic and derogatory comments about her need for leave, the requirement that she have her FMLA recerti-fied, the requirement that plaintiff keep track of her work time after taking leave, and her supervisors’ criticism of her work performance. The court rejected plaintiffs contention that these allegations showed interference when plaintiff was allowed to take FMLA leave, and there was nothing in the record showing that plaintiff was discouraged from taking FMLA leave, or that defendant’s conduct created any kind of chilling effect. The facts in this case are highly similar. Plaintiff was repeatedly granted FMLA leave, and given the numerous requests for leave prior to her termination that were granted, there is no evidence that any rude or sarcastic comment made by her superiors created a chilling effect. In her deposition, plaintiff attributes the hostile comments to Berroth and surmised that they were based on age and race. And the unauthenticated note plaintiff points to in support of her contention that Moser was “plotting to fire her” does not create a genuine issue of material fact given the lack of evidence that his attitude translated into any action by Blue Cross. Plaintiff was not fired the next time she received an unsatisfactory report, but instead, received at least three more such reports prior to her termination. Finally, there is no evidence that plaintiffs termination interfered with the intermittent leave she was in the process of requesting in August 2004. The August 3, 2004 leave request for intermittent leave was approved. Plaintiff asserts in her response that she requested a reduced work schedule so that she could learn to key with her left hand and that the denial of this request interfered with her rights under the FMLA. While plaintiff is correct that the FMLA covers intermittent leave as well as leave on a full-time basis, there is no evidence that plaintiff was denied intermittent leave under the FMLA. Such a claim is distinct from any claim plaintiff may have that defendant failed to reasonably accommodate her under the ADA. All of the intermittent leave requests in the record for 2004 were granted by defendant. While plaintiffs argument may be relevant to the ADA claim, defendant points to a lack of evidence that such a request was denied under the FMLA. Furthermore, defendant has come forward with sufficient evidence to show that plaintiff would have been terminated regardless of her FMLA requests in July and August 2004. Starting in July 2004, the month after she was released from work restrictions, plaintiff had been progressively disciplined for her failure to meet performance standards, both in quantity and accuracy of entering claims. Plaintiff had been warned that failure to meet performance goals would result in termination. Plaintiffs termination for failing to meet objective criteria applicable to any other employee in her position belies the notion that plaintiff would not have been terminated absent her “request for or taking of FMLA leave.” Defendant has pointed to a lack of evidence that it interfered with plaintiffs entitlement to FMLA leave. Because plaintiff fails to point the Court to evidence that would create a genuine issue of material fact on the issue, summary judgment is appropriate. 3. Retaliation When analyzing FMLA retaliation claims under 29 U.S.C. § 2615(a)(2), the Court applies the McDonnell Douglas burden-shifting scheme. Under that approach, a plaintiffs establishment of a pri-ma facie case creates a presumption of retaliation. The burden then shifts to the defendant to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. If the defendant meets this burden, the burden shifts back to the plaintiff to present evidence that the proffered reason was not the true reason for the employment decision. In order to establish a prima facie case of FMLA retaliation, plaintiff must demonstrate that; (1) she engaged in protected activity; (2) defendant took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action. Defendant argues summary judgment is appropriate on the retaliation claim because plaintiff has not shown any evidence that defendant took an action that a reasonable employee would have found materially adverse since it did not deny her FMLA claims. Plaintiff argues that her termination constitutes an adverse action sufficient to establish a prima facie case because she was in the process of seeking intermittent leave before her termination. Defendant responds that there is no factual basis for this claim and that there is no evidence of a causal connection between plaintiffs FMLA requests and her termination. Defendant points to plaintiffs FMLA request from August 3, 2004, the certifications associated with it, and defendant’s approval of the request. Further, defendant points to evidence that despite this request, it offered plaintiff a position as a correspondence specialist prior to her termination. Plaintiff does not explain, or point to evidence that would create a genuine issue of material fact about whether plaintiff was terminated because of her August 2004 request for intermittent leave. This leave request was granted. Further, plaintiff had remained employed by Blue Cross for seven years, during which time she had filed numerous other requests for leave. Also, plaintiff was offered an alternate position with the company after she was approved for intermittent FMLA leave. Plaintiff was only terminated after she declined to accept the correspondence specialist position. The Court agrees with defendant that plaintiff fails to come forward with evidence to establish a genuine issue of material fact about whether she can meet the third element of a prima facie case of FMLA retaliation, a causal connection between her protected activity and the challenged action. B. ADA Claims 1. Discrimination on the Basis of Disability The ADA prohibits employers from discriminating on the basis of disability. The elements of a prima facie case of ADA discrimination are: (1) plaintiff is a disabled person as defined by the ADA; (2) plaintiff is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) plaintiff suffered discrimination by an employer or prospective employer. The statute defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” “Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sleeping, sitting, standing, lifting, reaching, and working.” Plaintiff maintains that she is disabled under all of the definitions of disability set forth in the statute, however, much of her argumentation appears to center around the causal connection element of the prima facie case. Consequently, the Court attempts to extract her arguments that appear to address the question of whether she is disabled under the statute. a. Actual Disability Under subsection (A), the Court: (1) considers whether plaintiffs health condition is a physical or mental impairment; (2) identifies the life activity upon which she relies and then determines whether it constitutes a major life activity under the ADA; and (3) asks whether the impairment substantially limits the major life activity. Plaintiff bears the burden of establishing that she suffers from an impairment that substantially limits a major life activity. And a plaintiff is not disabled under the ADA merely by having an impairment. Plaintiff does not specifically identify in her response the conditions upon which she claims a physical or mental impairment. The Court assumes, based on her arguments concerning reasonable accommodation, that she maintains that her hand, arms, back, and neck conditions constitute physical impairments under this analysis. In support of her contention that she is substantially limited in one or more major life activities, plaintiff argues without further explanation that she was unable to care for herself, had a ten-pound lifting restriction, and that she was unable to work for extended periods of time. The Court liberally construes these statements as claims that plaintiffs impairments limit her major life activities of caring for herself, lifting, and working. Plaintiff argues in her response that she is unable to care for herself. But there is no evidence in the record that plaintiffs impairments rendered her unable to care for herself, not even the admissible portions of her own affidavit. She had in fact been released from all work restrictions for about two months prior to her termination. Moreover, a lifting restriction alone or “[m]ere physical exertion (except to the extent it affects one’s ability to work) does not constitute a major life activity under the ADA.” Even if it did, defendant has successfully demonstrated a lack of evidence that plaintiff had a ten-pound lifting restriction. Plaintiff asserts in her deposition that Dr. Moore imposed this restriction in December 2003, but there is no evidence to support this. The December 9, 2003 notes by Dr. Moore do not include a lifting restriction of any kind. Working is considered a major life activity. Consequently, the Court must determine if plaintiffs physical impairment significantly restricted her ability to perform a major life activity “as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” And, since plaintiff asserts that she is restricted in the major life activity of working, there must be evidence that she is significantly restricted “in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” The Court must also consider “the geographical area to which the individual has reasonable access, and the ‘number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the individual is also disqualified.’ ” No such showing has been made here. In fact, there is no evidence that plaintiffs doctors imposed any restrictions on the particular job of data capture employee for two months pri- or to her termination, much less any other category of jobs. Plaintiff urges the Court to ignore Dr. Hendler’s release from work restriction and focus on restrictions placed on her by other doctors. But defendant has convincingly pointed to a lack of evidence that any doctor had imposed a work restriction upon plaintiff that was still effective at the time of her termination. While plaintiff had filled out a request on August 3, 2004 for intermittent FMLA leave in order to accommodate various doctor’s appointments, none of the certifications associated with this request referenced her inability to work on a full-time basis. Nor does plaintiff provide any evidence that would aid the Court in addressing plaintiffs vocational training, or the geographical area to which plaintiff has access. It is plaintiffs burden to point the Court to evidence that would create a genuine issue of material fact on the matter. Plaintiff relies only on her own recollections of such restrictions, introduced as hearsay evidence through her affidavit. This is insufficient to overcome summary judgment. b. Record of Disability Plaintiff makes the argument that she meets subsection (B) of the definition of disability, because she has a “record of’ having a disability within the meaning of subsection (A). To meet this definition, plaintiff must show that “at some point her impairment actually did substantially limit her ability to work.” To have a record of impairment under this definition, “a plaintiff must have a history of, or have been misclassified as having, an impairment that has substantially limited a major life activity.” Plaintiff urges that her long history of back, neck, and upper extremity injuries due to keyboarding support a record of disability under the statute. But this is not supported by the record. As already described, evidence is lacking that her record of problems with her neck, back, and upper extremities rose to the level of substantially limiting the major life activities of taking care of herself, lifting, and working. According to the FMLA paperwork submitted by defendant, although plaintiff missed work intermittently for long periods of time due to her impairments, the only evidence of full-time leave for any significant period of time appears to be when she had her hysterectomy, which was an unrelated health issue for a limited period of time. The evidence does not point toward a history of a substantial limitation in the major life activity of working. “A history of light duty restrictions does not necessarily demonstrate a record of substantial limitation in working.” Defendant has come forward with evidence that Dr. Hen-dler released plaintiff from all work restrictions in June 2004, finding that there is no therapy or medication that could help her and citing nonphysiologic reasons for her complaints. Finally, as already described, defendant has pointed to a lack of evidence that plaintiff was unable to work in a broad range of jobs during the period of time in question. Plaintiff fails to come forward with evidence that creates a genuine issue of material fact that she has a “record of’ substantial limitation in the life activities of taking care of herself, lifting, and working. c. Regarded As Disabled The third definition of disability under the statute applies to individuals who are “regarded as” having a disability within the meaning of subsection (A). An individual may fall within this definition in two ways: “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Under either theory, it must be shown that the employer has “misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Plaintiff suggests that she meets this definition based on Moser’s deposition testimony that he had concluded she could not perform any work at Blue Cross based on her working restrictions and that he told her to seek employment elsewhere. Plaintiff also cites testimony by plaintiffs other superiors that they were aware of her impairments and that she requested accommodations. Plaintiffs argument that defendant regarded her impairment as substantially limiting a major life act