Full opinion text
MEMORANDUM OPINION AND ORDER KIM R. GIBSON, District Judge. I. SYNOPSIS The above-captioned matter is before the Court on the Parties’ cross motions for summary judgment. Plaintiff claims that Defendants interfered with his rights under the Family and Medical Leave Act by failing to advise him of his rights under the Act, failing to offer him leave under the Act, terminating him as a result of absences he claims were protected by the Act and, post-termination, refusing to provide him leave under the Act and to rehire him. He seeks recovery under the remedial provisions of the Act itself as well as the general remedial provisions of 42 U.S.C. § 1983. Defendants claim that Plaintiff never qualified for the protections of the Act, and that Defendant Silka has immunity from suit. For the reasons given below, the Court will deny Silka’s claim of immunity in part and reserve judgment in part pending resolution of an issue of material fact; dismiss Plaintiffs § 1983 claims; recast Plaintiffs wrongful termination claim as a claim of discrimination and/or retaliation and dismiss Plaintiffs remaining interference claims; dismiss the wrongful termination claim in part; find that there are issues of material fact regarding the remainder of the wrongful termination claim; and reopen discovery regarding Defendants’ reasons for terminating Plaintiff; II. BACKGROUND David Hayduk [hereinafter Plaintiff] was born in 1943. Document No. 46-4 p. 9. He has apparently lived his entire life in the same house in Johnstown, Pennsylvania. Id. So far as the Court can determine, he lived alone at all times relevant to the above-captioned action. See id. at 8-9. From the early 1990s until his termination on September 10, 2003, Plaintiff was employed full time by Defendant City of Johnstown [hereinafter City] as a residential rehabilitation inspector. Id. at 17. He was classified as a non-union, non-supervisory employee. Document No. 46-4 pp. 18-19; Document No. 46-6 p. 44; Document No. 46-8 p. 50. At the time of his termination, Plaintiffs job paid $24,000 per year. Document No. 46-6 p. 11. As part of a federally funded program administered by the City, Plaintiff was assigned to inspect houses within the City with an emphasis on “windows, doors, furnaces, siding, chimneys, [and] sidewalks.” Document No. 46-4 p. 22. He would then estimate the cost of improving those items and write up bid specifications. Document No. 46-4 pp. 20-21. After the bid had been awarded he would monitor the contractor’s work and then perform a final inspection to assure that it had been satisfactorily completed before the City’s final payment. Document No. 46-4 p. 21; Document No. 46-6 p 32. Plaintiff also performed followup inspections; if the owners had kept up their property the City would forgive the grants that had been used to pay for the work. Document No. 46-4 pp. 143-44. Plaintiff would generally visit a site eight times during the course of a typical three-week rehabilitation. Document No. 46-4 p. 24. His work “[occasionally” required him to use a ladder; he always worked alone in. the field. Id. at 23. Plaintiffs regular work hours were 8 a.m. to 4:30 p.m. Id. at 28. He was not required to punch in when he arrived at City Hall, but was required to sign out when he left the office for an inspection. Id. at 28-30. Beginning in 2000 and continuing until his termination, Plaintiff had the use of a City vehicle for his inspections. Id. at 31. It was parked in a lot located between his house and City Hall; he would typically drive from his home to the lot and then take the City car to City Hall and would reverse the procedure at the end of the day. Id. at 226-27. However, the City car was old and “broke down constantly.” Document No. 46-6 p. 29. When it did, Plaintiff would use his personal automobile. From the perspective of Ronald Andrews, his immediate supervisor, “that was not a problem.” Id. Plaintiff would also use his own car if it was more convenient or if there were other “extenuating circumstances.” Document No. 46-4 p. 232. He claims that he was not aware of any city policy to the contrary, at least before August of 2003. Id. at 232-33. The City also had a written policy that forbade operation of the City vehicle outside the City limits except under circumstances inapplicable to Plaintiff. Document No. 46-10 p. 16. Plaintiff claims not to have seen it; that his understanding of City policy, at le,ast before August of 2003, was based on discussions in weekly staff meetings; and that he believed, based on those discussions, that the City’s policy was merely to “[u]se the vehicle as much as you can, unless it’s broke down.” Document No. 46-4 p. 36. Plaintiff would, therefore, briefly operate the City vehicle outside the City if he believed it was the most efficient way to travel between jobs. Id. at 44-48. During the course of his employment with the City, Plaintiff underwent several medical procedures. In approximately 1994 he had a bilateral radial keratotomy to correct his vision; although he wore glasses at one time he no longer needed them, at least as of August 7, 2006. Document No. 15-2 p. 3; Document No. 46-4 p. 92-93. He visits Dr. Polito, the ophthalmologist who preformed the procedure “every few years,” so that the doctor can “see what’s going on.” Document No. 46-4 p. 94. In February of 2001, after complaining for some months of pain that had earlier been diagnosed as gastroesophogeal reflux, Plaintiff was diagnosed by Dr. Cyril Nathaniel with multivessel coronary artery disease and underwent a triple coronary artery bypass shortly thereafter. Document No. 46-4 pp. 53, 67-71; Document No. 47-13 p. 3. Dr. Nathaniel subsequently prescribed daily aspirin, Lipitor, a drug used to control serum cholesterol levels, and various drugs to control blood pressure, including Norvasc and Accupril, the two blood pressure medications Plaintiff was taking at the time of his termination. Document No. 46-4 pp. 54-55, 81-82; Document No. 47-13 p. 4. Dr. Nathaniel also apparently prescribed an over-the-counter potassium supplement. Document No. 46-4 pp. 96-99; Document No. 47-13 p. 4. Post-surgery, Plaintiff saw Dr. Nathaniel once or twice a year “[o]n an official basis,” but also saw and spoke with the doctor when he went “in for pills,” for a total of “maybe 10, 12 times a year .... ” Document No. 46-4 pp. 56, 81, 83. In addition to Plaintiff’s medications, Dr. Nathaniel prescribed a course of cardiac rehabilitation that Plaintiff claims to have pursued “religiously” several times a week, from roughly a month after his surgery until early 2006. Document No. 15-2 p. 2; Document No. 464: pp. 71-74, 79-80. The rehabilitation center was at Lee Hospital, approximately “five minutes” from City Hall. Document No. 15-2 p. 2; Document No. 464 p. 69. Throughout the remainder of his employment with the City, Plaintiff left work for the sessions and was paid for the 45 minutes to an hour he was gone. Document. No. 46-4 pp. 79-80; Document No. 44 p. 2 ¶ 17; Document No. 49 p. 3 ¶ 17. He did, however, miss roughly five to six sessions per month due to conflicts with work. Document No. 46-4 p. 80. The rehabilitation was evidently successful; Plaintiffs expert reported that, at least as of March 4, 2005, the date of his report, Plaintiff was “able to walk on a treadmill for an impressive rate and time,” Document No. 15-2 p. 4, and, indeed, Plaintiff himself has testified that he feels that he has recovered from the surgery. Document No. 46-4 p. 77. Plaintiff has also had several infected teeth extracted by Dr. Hertzler, an oral surgeon, on referral from various general dentists. Document No. 46-4 pp. 101-105. The first extractions occurred in approximately 1999; Dr. Hertzler removed two more infected teeth shortly after Plaintiffs termination in September of 2003 and performed further extractions of infected teeth in 2004 and 2005. Document No. 46-4 pp. 102-04; Document No. 15-3. Plaintiff has testified that Dr. Hertzler also performed oral surgery related to implants, Document No. 46-4 p. 102, but that is called into question by his expert’s report that he has “an upper plate and a lower partial plate.” Document No. 15-2 p. 3. Plaintiff states that he also saw his regular dentist “once a month” in 2003 for fillings and bonding. Document No. 46-4 p. 105. Dr. Brisini, a urologist, removed a growth in Plaintiffs bladder sometime in the 1980s, and Plaintiff has returned every six months thereafter for a followup cys-toscopy. Document No. 15-2 p. 2; Document No. 46-4 p. 132. By 2002 Plaintiff was also seeing Dr. Brisini for prostate problems. Document No. 46-4 p. 132. In addition, Plaintiff had a right inguinal hernia repair in April of 2003. Document No. 15-2 p. 2; Document No. 46-6 p. 48. In 2002 and 2003, the City allowed its employees either 12, 14 or 18 new sick days every year; testimony varied. Document No. 46-5 p. 58, Document No. 46-6 p. 25. Whatever their number, unused sick days could be carried over from year to year. Document No. 46-4 p. 78; Document No. 46-6 p. 26. Plaintiff had apparently not carried over sufficient sick days into 2002, and ultimately used a total of 31 days of sick and unpaid leave that year. Document No. 46-6 p. 25. He was, however, neither disciplined nor formally counseled about these absences, Document No. 46-5 p. 34; Document No. 46-6 pp. 26-27, 28, 47; Document No. 46-8 p. 54, and, indeed, claimed to never have been so much as criticized for his absenteeism before August of 2003. Document No. 46-6 p. 47; Document No. 46-4 pp. 126-27. Plaintiff also expended more than his allotted number of sick days in 2003. By the time of his discharge, he had used 28 days of sick and unpaid leave. Document No. 46-6 p. 25. This time, however, his frequent absences did not go unremarked. Instead they, and especially a “[p]attern of Thursday and Friday absences,” including Friday, August 1; Thursday, August 7; Thursday and Friday, August 14 and 15; Thursday and Friday, August 21 and 22; Friday, August 29; and Friday, September 5, constituted one of the grounds for Plaintiffs dismissal. Document No. 47-10. At his deposition Plaintiff could not recall the reason for his absence on August 1, 2003, but said it was “[p]robably sinus.” Document No. 46^1 p. 120. He also could not recall whether he had complied with his department’s policy requiring workers who would not be at work that day to notify the City by 8:15 a.m. Id.; Document No. 46-10 p. 13. Plaintiff did, however, unequivocally state that his August 7, 2003 absence was caused by “[s]inus.” Document No. 46-4 p. 121. He also claimed that on August 8, 2003 he furnished a doctor’s excuse for the August 7 and possibly the August 1 absences. Id. at 121-26. There is nothing in the record regarding the contents of the excuse, but in a meeting on August 8, 2003, Plaintiff did tell his immediate supervisor, Ronald Andrews, and Deputy City Manager Curtis Davis that “he had a sinus issue.” Document No. 46-12 pp. 20-21, 26; Document No. 46-4 pp. 137-38. This prompted Davis to require that Plaintiff provide “verification” from a doctor of any claimed condition or medical reason for his absences. Document No. 46-12 p. 27-28; Document No. 47-11 p. 2. Davis testified that he never received such verification. Id. at 27. During this meeting Andrews told Plaintiff that “he had run out of sick time.” Document No. 46-5 pp. 30-31; Document No. 46-6 p. 28; Document No. 47-11 p. 2. Plaintiff was also reminded of the necessity of “reporting off’ by calling the City to notify it that he would not be at work that day. Document No. 46-5 p. 33. He had failed to do so “more than one” time. Id. Plaintiff was further advised that he was not to travel outside the City limits in a City-owned vehicle. Document No. 46-6 pp. 28-29. Andrews subsequently memorialized the meeting in a memorandum to Silka dated August 15, 2003. Document No. 46-4 pp. 135-37, 230. On Thursday, August 14, 2003 Plaintiff testified that he was performing an inspection when he tripped on a “bad sidewalk,” fell, and twisted an ankle. Document No. 46^ p. 146. He had some communication with City Hall on the City-issued portable radio that he carried, although it is unclear from the record whether he informed his employer of either his injury or his intent to attempt to see his primary care physician, Dr. Wisniewski, immediately. Id. at 147-49. Plaintiff was unable to see Dr. Wisniewski on either August 14 or August 15, and neither returned to work on August 14 nor reported for work on August 15. Id. at 149-51, 153. He did, however, return his City car to the lot after his abortive August 14 attempt to see the doctor. Id. Plaintiff also “thinkfs]” that he notified the City that he would not be at work on August 15. Id. at 155. Plaintiff ultimately had his ankle examined by Dr. Brisini, who practiced general medicine as well as urology, before going to work on Monday, August 18, 2003. Id. at 156-58, 160. Dr. Brisini wrote an excuse describing the injury, but did not sign it or identify the dates on which Plaintiff missed work because of his twisted ankle. Id. at 158-61. There is nothing in the record to indicate when Plaintiff supplied the City with this excuse. At the depositions it was attached to a letter from Plaintiff to Andrews dated August 20, 2003, which purported to explain Plaintiffs absences on August 14 and 15. Id. at 143; Document No. 46-5 p. 26. Plaintiff testified, however, that he had submitted the doctor’s excuse separately. Document No. 46-4 p. 158. Dr. Brisini also wrote an order for an x-ray, and instructed Plaintiff to have the x-ray taken “if [his ankle] did not get any better.” Id. at 159. There is nothing in the record to indicate that Plaintiff ever got the x-ray or sought further treatment for his ankle injury. Plaintiff missed work again on Thursday, August 21 and Friday, August 22, 2003. Id. at 166; Document No. 47-10. At his deposition, he could not state with certainty why he had been absent those days, but ultimately, after stating that he believed he had seen Dr. Wisniewski for “sinuses” on August 25, 2003, but was “not sure” that was the reason, said the reason for his absence “was sinus.” Document No. 46-4 pp. 167, 169. Later in the same deposition he said that the cause of this absence was “[pjrobably a combination, blood pressure and sinuses.” Id. at 176. The medical excuse Plaintiff obtained on August 25, 2003 for the August 21-22 absences was not signed by Dr. Wisniewski but rather by Kimberly Wisniewski. Id. at 171. Although Plaintiff knew she saw patients in Dr. Wisniewski’s office, he did not “know if she [was] a doctor or not.” Id. The excuse did not identify any specific malady, but merely stated that Plaintiff had suffered “medical problems.” Id. at 168. Plaintiff said that when he returned to work on August 25 he had “probably mentioned it was sinus again” to someone, but could not recall. Id. at 169. On Friday, August 29, Plaintiff was again absent from work. He “woke up early in the morning and [his] eyes were swollen shut,” to the point that he needed to “feel the walls to go [to] the bathroom ....” Id. at 177; Document No. 46-6 pp. 49, 51. He claims that he was not able to call City Hall or for any assistance because his home phone was out of service; he could not find his cell phone, which was possibly in his car; and his City-issued radio was, per City policy, in its charger at City Hall. Document No. 46-5 pp. 179-87; Document No. 46-6 pp. 51-52. Plaintiff did not think about calling a doctor, but self-diagnosed his problem as “[j]ust part of the sinus deal, just another step, getting worse.” Document No. 46-6 p. 184. He did, however, “hit the antibiotic,” taking “[w]hatever was prescribed to [him] at the time.” Id. at 189. His condition improved over the Labor Day weekend, although Plaintiff did not leave his home until he returned to work on Tuesday, September 2, 2003. Id. at 189-91. Plaintiff proffered a medical excuse on September 2, 2003, again signed by Kimberly Wisniewski. Id. at 192-93; Document No. 46-6 p. 69. The record does not state the contents of the excuse, although it does contain the following notation from Ms. Wisniewski, dated September 2, 2003: “Patient came in the second time in two weeks requesting a slip for missed work due to sinus headache, I instructed patient I would give him one more slip and will need appointment when he is ill.” Document No. 46-4 pp. 173-75. Plaintiff may-have made a followup appointment; it is certain that he never kept it. Id. at 194-95. At the behest of Davis and Defendant Silka, Plaintiff also wrote a letter explaining both his absence and his failure to contact City Hall on August 29, 2003. Id. at 193; Document No. 47-11 p. 5. It stated that “[a]s of Sunday August 31st [he] was bedridden for 72 hours.” Document No. 47-11 p. 5. Presumably referring to a followup appointment which he never kept, Plaintiff wrote that “[a]t [his] next appointment the doctor [was] going to decide if [Plaintiff] need[ed] surgery to prevent [his] face from swelling and [his] eyes swelling shut, which [was] the source of [his] health problems.” Id.; Document No. 46-4 pp. 194-95. On September 4, 2003, Silka conducted a “due process hearing” at which Plaintiff, Andrews and Davis were present. Document No. 47-11 p. 2. Document No. 46-8 p. 36. Its purpose was to discuss Plaintiffs “failing to report to work and not calling off on August 29, 2003 and the fact that he [had] utilized all of his leave time.” Document No. 47-11 p. 2. The meeting also sought to address “a distinct absentee pattern” of Thursday and Friday absences in August of 2003. Id. Andrews found Plaintiffs Friday absences to be especially problematic because if Plaintiffs inspections were not completed by Friday morning he had a problem paying his contractors. Document No. 46-6 p. 38. Plaintiff was informed that his benefits were “based upon a 2080-hour work year and uncompensated absences [went] against the required work time,” id. at 3, and that if he persisted in his excessive absenteeism he could be placed on either part-time status, which would eliminate his benefits including health insurance, or terminated. Document No. 46^1 pp. 197, 216. For his part, Plaintiff presented the letter of explanation, Document No. 47-11 p. 5, discussed above, and informed the panel that “his absentee pattern on Thursday and Friday [was] due to his sinus and blood pressure conditions that [left] him exhausted by Thursday.” Id. at 3. Notwithstanding Plaintiffs averments at the hearing, it resulted in a written reprimand for not reporting to work on August 29, 2003 and not notifying the City of his absence. Id. Silka also imposed the following action plan: 1. Mr. Hayduk shall call into the office of the Department of Community and Economic Development [the office for which he worked] to report when he will not be at work. 2. Mr. Hayduk shall provide the Director of Community and Economic Development [Andrews] a doctor’s excuse, detailing why he was unable to report for work and releasing him to report for work, for each absence. Failure to comply with the terms of the Action Plan shall result in further disciplinary action, which may include termination. Id.; Document No. 46-4 pp. 216-17; Document No. 46-5 pp. 9, 16, 34; Document No. 46-6 pp. 17-18. Although Plaintiff was aware of the action plan on September 4, 2003, it was not signed, and the written reprimand was not issued, until September 9, 2003. Document No. 46-4 pp. 214-18; Document No. 46-5 pp. 69-70; Document No. 47-11 pp. 3-4. On the morning of Friday, September 5, Plaintiff “had a headache” and “was not feeling good,” but felt constrained after the previous day’s meeting to report to work. Document No. 46-4 p. 223. He drove his own car to City Hall, passing by the lot in which his City car was kept since “it was extremely hot,” his personal vehicle had air conditioning, and he was not feeling well. Document No. 46-4 p. 228, 280; Document No. 46-6 p. 71. He subsequently left City Hall in his own car to perform his assigned inspections. Document No. 46-4 p. 223. During the course of the first inspection, while walking back to his car, Plaintiff “passed out or fainted or whatever” near the automobile. Id. at 233-34, 236. There were no witnesses. Id. at 234-35. Sometime later he regained consciousness and went into the house he had been inspecting for a glass of water. Id. at 234, 238; Document No. 46-6 p. 71; see generally Document No. 47-4. He did not tell the people in the house that he had passed out because they were “80-some years old” and “it would not have mattered.” Document No. 46-4 p. 238. Plaintiff had neither his personal cell phone nor his City-issued portable radio with him at the time. Document No. 46-4 pp. 235-36. He did, however, use his clients’ telephone to call Kelly Barger, his office’s secretary, and was advised to proceed to a house on Hagan Street. Id. at 223-24; Document No. 46-6 pp. 21, 71-72. During this conversation, although Plaintiff told Ms. Barger that he was not feeling well, he did not inform her that he had just been unconscious. Document No. 46^1 pp. 224, 239. Plaintiff then proceeded to the Hagan Street address, even though he had been previously instructed by his immediate supervisor, Andrews, that it was imperative that he complete a final inspection on a different house in another part of the City by 11 a.m. Document No. 46-5 pp. 70-71; Document No. 46-6 pp. 32, 72-73, 81-82. After the conversation with Ms. Barger, with the possible exception of a phone call that Plaintiff may have made but “can’t recall” on September 8, 2003, there was no further direct communication between Plaintiff and City Hall until Tuesday, September 9, 2003, despite Andrews’ and Sil-ka’s attempts to locate him during the remainder of September 5, 2003. Document No. 46-4 p. 262; Document No. 46-5 p. 71; Document No. 46-6 pp. 18-19, 32-33; Document No. 47-12 p. 3. Plaintiffs house was “approximately two minutes away” from the Hagan Street residence, and after the Hagan Street appointment Plaintiff decided to go home, change his pants, which had gotten dirty when he passed out, “and take a pill because [he] knew that [his] blood pressure was up ....” Document No. 46-4 pp. 224, 235, 241. He began to walk up the stairs to the second floor of his house and lost consciousness again. Id. at 224. John Kondash, an acquaintance whom Plaintiff had asked to come to his house after 4:00 p.m. to discuss his doing some work for Plaintiff, discovered Plaintiff with his feet on the bottom step and his head resting against the wall on the landing. Id. at 241, 243-44; Document No. 46-6 pp. 38-43; Document No. 46-7 pp. 20-24; see generally Document Nos. 47-5, 47-7, 47-8. Plaintiff had a lump on his head and “was stoved up pretty bad.” Document No. 46-4 pp. 248-49; Document No. 46-6 p. 74; Document No. 46-7 pp. 24-26. Kondash revived Plaintiff and tried to convince him to go to the hospital but Plaintiff, who was “hurting and not [him]self’ simply wanted to be put to bed. Document No. 46-4 pp. 244-45; Document No. 46-6 p. 42-43; Document No. 46-7 pp. 24-27. Kondash helped Plaintiff up the stairs and into his bed, then left; he had been at Plaintiffs house between ten and twenty minutes. Document No. 46^1 p. 245; Document No. 46-6 p. 42; Document No. 46-7 p. 26-28. He had not smelled any alcohol on Plaintiff at any time. Document No. 46-7 p. 29. Kondash called Plaintiff later that night to check on his condition, which was essentially unchanged; he still “didn’t sound too good.” Document No. 46-7 pp. 27-29; Document No. 46-6 p. 42. Plaintiff drove himself to the hospital the next morning, although he felt “barely” well enough to do so. Document No. 46-6 pp. 247-48. Plaintiff was evaluated for syncope. Document No. 15-2 p. 3; Document No. 46-11 pp. 2-3; Document No. 47-13 p. 3. After several hours in the emergency room, he was admitted to UPMC-Lee Regional Hospital at 12:44 p.m. on September 6, 2003. Document No. 46-4 pp. 249-50; Document No. 47-15 p. 2. Plaintiff had “[made] it clear during several conversations that he want[ed] and need[ed] to be hospitalized.” Document No. 47-15 p. 3; Document No. 46-11 p. 3. He received a CAT scan which revealed “a small right lacunar infarct, probably old.” Document No. 15-2 p. 3; Document No. 47-13 p. 3; Document No. 47-15 p. 13. He also suffered from hypokalemia, or a low serum potassium level. Document No. 15-2 p. 3; Document No. 47-13 p. 3. An electrocardiogram “revealed nonspecific ST-T wave changes and borderline criteria for left ventricular enlargement.” , Document No. 15-2 p. 3; Document No. 47-13 p. 3. On Sunday, September 7, 2003, Plaintiff was given the option of remaining in the hospital or going home, although in any case he was not to return to work on Monday or operate a vehicle. Document No. 46-4 p. 254; Document No. 47-9. He elected to return home and was discharged with an order for an outpatient noninvasive ultrasonic carotid artery study Id. at 254, 260-61; Document No. 47-9; Document No. 47-15 p. 7. At the time of his discharge, the treating physician did not know the cause of the syncopal episodes, and Plaintiff could not recall whether his sinuses or blood pressure were mentioned as possible triggers. Document No. 46-4 p. 255-56. Notwithstanding the doctor’s orders, Plaintiff drove himself home. Id. at 255. There is nothing in the record to indicate that Plaintiff ever had the carotid artery studies. See id. at 261, 270; Document No. 15-2; Document No. 47-13. Indeed, the only followup to his syncopal episodes which Plaintiff can recall is a visit to his oral surgeon, presumably on September 18, 2003, during which Dr. Hertzler extracted two of Plaintiffs teeth. Document No. 46-4 pp. 269-71; Document No. 15-3. On either September 6 or 7, 2003, Plaintiff asked his girlfriend to call Davis to tell him that Plaintiff was in the hospital and did not know when he would return to work. Document No. 46-4 p. 246. There was a message from Plaintiffs girlfriend on Davis’s answering machine that he “got on Sunday evening,” stating that Plaintiff “had gone to get looked at at the hospital.” Document No. 46-12 pp. 48-49, 69-70. Davis could remember no further details regarding the content of the message. Id. Plaintiff may have phoned City Hall on Monday as well, but “can’t recall.” Document No. 46-4 p. 262. Plaintiff returned to work on September 9, 2003. Id. at 263. He immediately filled out an accident report for September 5. Id. at 264; Document No. 47-8. At approximately 9:00 a.m. Plaintiff was called down to Silka’s office for a meeting with Silka, Davis and Andrews. Document No. 46-4 p. 265; see generally Document No. 46-8 p. 42. Silka chaired the meeting. Document No. 46-6 p. 20. Plaintiff was given a written reprimand based on the September 4, 2003 hearing, and Plaintiff, Silka and Andrews signed the document. Document Nos. 47-11, 47-12. At the meeting, Plaintiff gave an account of September 5, 2003 that was substantially similar to that described above; he also offered a doctor’s excuse for his absence on September 8, 2003. Document No. 46-4 p. 267-68; Document No. 47-12 p. 3; Document No. 47-9. Silka responded that Plaintiffs account of the occurrences of September 5 “sounded like a fairytale.” Document No. 47-12 p. 3; Document No. 46-6 p. 21; see also Silka’s testimony at Document No. 46-6 p. 26 (admitting that he would not have disciplined Plaintiff if Plaintiff had been “literally unconscious” on September 5, 2003). Plaintiff testified that he offered to sign whatever releases were necessary so that the City could review his medical records from his weekend hospitalization but that the City officials did not wish to see them. Document No. 46-4 p. 267, 269; Document No. 47-12 p. 4. He also testified, however, that he could not recall anything being said at the meeting that was not memorialized in the minutes which are part of the record, Document No. 46-4 p. 271, and according to the minutes Plaintiff did not make such an offer to the City officials; he had instead attempted to sign a release at the hospital that would have allowed the City access to his records, and a hospital official had refused Plaintiffs request. Document No. 47-12 p. 4. There was also a discussion of Plaintiffs failure to use his City vehicle on September 5, 2003, during which Andrews told Silka that he had not previously explained to Plaintiff the City’s policy against using a personal vehicle on official business when a City car was assigned to the employee. Document No. 47-12 p. 4. Ms. Barger “was called in” to the meeting and confirmed that she had spoken with Defendant once at approximately 10:30 a.m. on September 5,2003. Id. Silka confined Plaintiff to “administrative duties” inside City Hall until further notice. Document No. 46-6 p. 56; Document No. 46-8 p. 33. Silka was “[n]ot specifically” worried that Plaintiff might pass out again, this time while operating a city vehicle; instead he said that Plaintiff “was just coming off an incident where he went AWOL and [the City] couldn’t find him,” and therefore Silka “did not want him going out again.” Document No. 46-8 pp. 33-35. Silka, who had sole authority to fire an employee, terminated Plaintiff at the end of the workday on September 10, 2003. Id. at 14; Document No. 46-6 p. 13; Document No. 46-12 p. 18, The termination letter Silka gave to Plaintiff said that he had been fired for the following reasons: a. Failure to report an alleged work related injury on September 5, 2003. b. Use of you [sic] personal vehicle for City of Johnstown business, on September 5, 2003, contrary to agency policy. c. Unauthorized absence from work on September 5, 2003. d. Pattern of Thursday and Friday absences: Friday August 1 Thursday August 7 Thursday August 14 Friday August 15 Thursday August 21 Friday August 22 Friday August 29 Friday September 5 Document No. 47-10. Silka subsequently refused to rank the factors, stating that “[t]he discharge was based on a pattern of instances, not one particular subset there. It was taken as a whole, not as individual actions.” Document No. 46-8 p. 21. He went on to state that “[i]n light of the past employment conferences that [had been conducted], each one of [the factors] could have been a terminable event based on the action plan that [they] were devising. But these were looked on as wholes, as a whole category and not single issues.” Id. at 21-22. Plaintiff attributes the majority of his absences in August of 2003 and, indeed, the general malaise of which he complained throughout 2002 and 2003 to either high blood pressure, sinus infection, or both. It is undisputed that Plaintiff was being treated for high blood pressure at least from the time of his bypass surgery in 2001.' The parties do not, however, agree on whether his blood pressure was well-controlled, especially during the period from approximately August 1, 2003 until his termination. Defendant’s expert claims that.Plaintiffs medical records indicate that his hypertension “was controlled during the August-September 2003 timeframe” and that he had no complications from his hypertension during that time. Document No. 47-13 p. 5 ¶ 2. By contrast, Plaintiffs expert found that his blood pressure was “usually under fair control at best.” Document No. 15-2 p. 2. Plaintiff himself has given contradictory information on this matter, having testified in October of 2003 that during 2003 his doctors “had a heck of a time controlling [his] blood pressure” and “[c]hanged [his] medication a bunch of times,” Document No. 46-6 p. 48, while testifying in 2006 that he had taken the same blood pressure medications from the time of his bypass surgery until approximately 2005. Document No. 46^4 pp. 81-82; see also Document No. 15-2 (confirming that “at the time of his termination [Plaintiff] was on the same medication” as in 2001). Plaintiff claims that he has suffered from sinus infections since approximately 1999 or 2000. Document No. 46-4 pp. 110. He states that as a result he would miss work seven or eight times a year, for periods of from one to three days. Id. at 111-12. Plaintiff also states that throughout this period his primary care physician, whomever that has been, has treated these infections and that at least Dr. Wisniewski had written notes for Plaintiff to his employer when he was absent for that reason. Id. at 110-12, 137, 220. Plaintiff would also treat himself with antibiotics that were “left over from the previous time” he had suffered from a sinus infection. Id. at 121-22, 189. Plaintiff stated that he was advised at some point that a “sinus lift” operation would help Plaintiff “an awful lot” if not cure his sinus problems. Document No. 46-4 pp. 107-08, 220-22; Document No. 46-6 p. 53. Although he could not give any particulars, Plaintiff described the surgery as “very painful” and “very dangerous,” with a recovery period of “at least ten days or a week or two.” Document No. 46-4 p. 221; Document No. 46-6 p. 53. He has testified that he intended to wait until the beginning of 2004, when his store of sick days would have been replenished, and have the operation. Document No. 46-4 pp. 202-03, 274; Document No. 46-6 p. 53. Plaintiff never did have the procedure, however; after his termination he lost his medical insurance and could not pay for it; Document No. 44 p. 3 ¶ 28; Document No. 49 p. 4 ¶ 28; Document No. 46-4 pp. 203-04. Defendant claims that “[t]here is no documentation from any health care provider of Plaintiff ever seeking treatment from a health care provider for his sinuses prior to his termination.” Document No. 44 p. 1 ¶ 6; Document No. 47-13 p. 6 ¶ 6. Plaintiff avers that such medical records do exist, Document No. 49 p. 2 ¶ 6, but they are not part of the record of this case and therefore will not be considered by the Court for purposes of deciding the instant motions. Andrews knew from conversations with Plaintiff about Plaintiffs high blood pressure and blurry vision no later than 2001. Document No. 46-5 pp. 15, 48-49; Document No. 46-6 pp. 36-37. Plaintiff informed Andrews and Davis of his sinus problems during the August 8, 2003 meeting. Document No. 46-4 pp. 137-38; Document No. 46-12 pp. 20-21. He also stated, at either the August 8 or September 4, 2003 meeting, that he was so exhausted from his health problems that he found it impossible to complete the week’s work. Document No. 46-5 pp. 50-51; Document No. 46-6 pp. 37, 53. The City’s employee guidebook briefly describes provisions of the Family and Medical Leave Act [hereinafter FMLA or Act], including an employee’s eligibility for leave for “[a] serious health condition which renders the employee unable to perform the functions of his or her job.” Document No. 46-10 p. 7. At his deposition Plaintiff could not recall if he had ever received the guidebook and now denies that he did. Document No. 46-4 pp. 51-52, 198; Document No. 49 p. 9 ¶ 72. Silka could not say whether a guidebook had been issued to Plaintiff. Document No. 46-4 p. 198. Silka also testified that a poster describing the provisions of the FMLA was posted “on the main bulletin board on the first floor of City Hall” when he was hired in April of 2002 and remained there throughout his tenure as city manager. Document No. 46-8 pp. 11, 65-66; Document No. 46-9. Plaintiff, while stating that he did read notices on the bulletin board, could not recall ever reading anything “having to do with leave of absence from work.” Document No. 46^4 pp. 199-202. Indeed, Plaintiff claims to have “[njever heard of’ the FMLA as of September 2, 2003, although he also states that he had heard of an employee in 2002 taking FMLA leave “because she was having a baby.” Id. at 199. It is undisputed that Plaintiff never formally requested any sort of prospective leave to either attempt to rest and recover or to have the sinus lift surgery. Document No. 49 p. 11 ¶ 83. It is also undisputed that, except for the paid periods in which Plaintiff engaged in cardiac rehabilitation, the City or its agents neither offered Plaintiff any sort of leave beyond his paid sick and vacation days nor discussed with him “his right to unpaid time off for medical care under the Family Medical Leave Act.” Document No. 46-5 p. 75; Document No. 46-8 pp. 47-48. On October 10, 2003, roughly a month after Plaintiffs termination, his attorney requested Plaintiffs reinstatement. Document No. 47 p. 13 ¶ 10. On October 17, 2003 the City refused. Id. Plaintiff filed the instant lawsuit on June 30, 2005, and the parties subsequently filed cross motions for summary judgment. Document Nos. 1, 41, 45. III. DISCUSSION A. Jurisdiction and venue The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 2601 et seq. Venue is proper pursuant to 28 U.S.C. § 1391(b). B. Legal standard for summary judgment A “principal purpose[ ] of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses ... and it should be interpreted in a way that allows it to accomplish [that] purpose.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 275 (1986). Fed.R.Civ.P. 56 must therefore “be construed with due regard not only for the rights of persons asserting claims ... that are adequately based in fact to have [them] tried to a jury, but also for the rights of persons opposing such claims ... to demonstrate ... prior to trial, that the claims ... have no factual basis.” Celotex, 477 U.S. at 327, 106 S.Ct. at 2555, 91 L.Ed.2d at 276. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). There is no issue of material fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986) (citation omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986), and summary judgment therefore must be entered “against a party who 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, 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d. at 273; see also J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (holding that a “plaintiff will be out of court if he has not adduced sufficient evidence to get to a jury on every element of his case”). In order to meet its burden, the party moving for summary judgment need not “produce evidence showing the absence of a genuine issue of material fact”; it can instead merely “point[ ] out ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275. The burden on the non-moving party is more substantial. Fed.R.Civ.P. 56(e)(2) states it as follows: When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. To meet its burden, the non-moving party may use any type of evidentiary material “listed in Rule 56(c), except the mere pleadings themselves”; this material need not, however, be “in a form that would be admissible at trial.” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. "While the non-moving party need not prove its case, it must show that there is a genuine issue for trial; a “mere scintilla of evidence” or a “metaphysical doubt as to the material facts” is not sufficient. Anderson, 477 U.S. at 251, 106 S.Ct. at 2511, 91 L.Ed.2d at 213; Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, 89 L.Ed.2d at 552. In deciding a motion for summary judgment, the Court “must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994)); see also Ely v. Hall’s Motor Transit Co., 590 F.2d 62, 66 (3d Cir.1978) (quoting Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir.1972)) (holding that the reviewing court must “resolv[e] all inferences, doubts and issues of credibility against the moving party”) (internal quotation marks omitted). The non-movant must, however, “present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue” for trial. McCabe v. Ernst & Young, LLP, 494 F.3d 418, 436-37 (3d Cir.2007) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005)) (internal citations and quotation marks omitted); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695, 716 (1990) (holding that the purpose of Rule 56(e) is “not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit”). “Specious objections will not ... defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant’s proof [] will.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007). If the Court is unable to render summary judgment on the entire action, it “should, to the extent practicable, determine what material facts are not genuinely at issue,” and those facts “must then be treated as established in the action.” Fed.R.Civ.P. 56(d)(1). C. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. In enacting the FMLA, Congress found, inter alia, that “there [was] inadequate job security for employees who [had] serious health conditions that prevented] them from working for temporary periods .... ” 29 U.S.C. § 2601(a)(4). To remedy the problem, it created a system of interlocking rights and responsibilities which was intended to “balance the demands of the workplace with the needs of families” by “entitling] employees to take reasonable leave for medical reasons ... in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(l)~(3). The employee rights granted by the FMLA “set floors for employer conduct” which the employee may not bargain away or otherwise waive. 29 U.S.C. §§ 2652, 2653; Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005) (citation omitted); see also Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 722 (6th Cir.2003) (citations omitted) (holding that the provisions of the FMLA “apply even where the entitlements created by the Act are in excess of those that an employer would be willing or able to provide on its own”). In pertinent part, the FMLA entitles an eligible employee “to a total of 12 workweeks of leave during any 12-month period ... [b]eeause of a serious health condition that makes the employee unable to perform the functions” of his position. 29 U.S.C. § 2612(a)(1)(D). At the end of the leave, except under circumstances inapplicable to the case at bar, the employer must either return the employee to the position he held before taking the leave or to “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). However, FMLA leave is only designed to allow the employee “to treat or attend to the condition rendering [him] unable to perform [his] job.” Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir.2002). If at the end of his leave, the employee “remain[s] unable to perform the essential functions of [his] position” his employer is “under no obligation to reinstate [him] ....’’Id. The FMLA guarantees only unpaid leave, but either the employee or the employer may substitute paid leave “if the employee has earned or accrued it.” 29 U.S.C. § 2612(c), (d); 29 C.F.R. §§ 825.100(a), 825.207. During the leave, the employer “must maintain [the employee’s] coverage under any ‘group health plan’” under the same terms as if the employee had been continuously employed throughout his leave. 29 U.S.C. § 2614(c)(1). FMLA leave may be planned or unplanned. See 29 U.S.C. § 2612(e); 29 C.F.R. §§ 825.302, 825.303. It may also be taken and, indeed, “must be granted” if “ ‘medically necessary,’ on an intermittent or part-time basis.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S.Ct. 1155, 1160, 152 L.Ed.2d 167, 175 (2002) (citing 29 U.S.C. § 2612(b)(1)); see also 29 C.F.R. § 825.203. When taking intermittent leave, the employee may not be charged for more leave than he actually uses, although his employer “may limit leave increments to the shortest period of time that [his] payroll system uses to account for ... use of leave, provided it is one hour or less.” 29 C.F.R. §§ 825.203(d), 825.205. The statutory and regulatory schemes of the FMLA suggest that an employee might take twelve medically necessary weeks of intermittent leave per twelve-month period indefinitely. The courts have held otherwise: the FMLA does not entitle an employee to take “unscheduled and unpredictable, but cumulatively substantial absences.... at a moment’s notice for the rest of [his] life.” Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007 (7th Cir.2001); see also Spangler, 278 F.3d at 853; Brown v. E. Maine Med. Ctr., 514 F.Supp.2d 104, 110 n. 9 (D.Me.2007); Johnson v. Moundsvista, Inc., No. Civ. 01-915 DWF/AJB, 2002 WL 2007833, at *6 n. 6, 2002 U.S. Dist. LEXIS 16450, at *19 n. 6 (D.Minn. Aug.28, 2002). So long as “reliable attendance is a bona fide requirement” of a position, an employee’s inability to comply with that requirement over the long term indicates that he is not qualified for the position, and therefore not eligible for leave under the FMLA. Spangler, 278 F.3d at 853 (citing Collins, 272 F.3d at 1007); Collins, 272 F.3d at 1007 (holding that the FMLA should not be construed to provide more protection than the Americans with Disabilities Act [hereinafter ADA], which “protects only persons who over the long run are capable of working full time”); see also 29 C.F.R. § 825.214(b) (stating that an employee who is “unable to perform an essential function of [his] position” at the end of his FMLA leave “has no right [under the FMLA] to restoration to another position ... ”). An employee’s right to take FMLA leave, even unplanned leave, is conditioned on his notice to his employer. Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951-52 (7th Cir.2004) (holding that “the employee’s giving the required notice to his employer is the quid pro quo for the employer’s partial surrender of control over his work force”). Failure to provide proper notice allows the employer to deny benefits under the Act even where an employee would otherwise be eligible. Id. If the leave is foreseeable, the employee must give at least 30 days notice if possible; if the need becomes foreseeable in a shorter period of time the employee must give notice “as soon as practicable,” generally “within one or two business days” of the time the need arises. 29 C.F.R. § 825.302(a), (b). “[E]xcept in extraordinary circumstances,” an employee must also notify his employer within one or two business days of learning of the need for unforeseeable leave. 29 C.F.R. § 825.303(a). Where the employee has taken leave that qualifies under the FMLA but the employer is unaware of the reason, “the employee must notify the employer within two business days of returning to work of the reason for the leave” or be barred from “subsequently] asserting] FMLA protections for the absence.” 29 C.F.R. 825.208(e)(1). If, however, the employee does satisfy the notice requirements of the FMLA an employer “cannot deny FMLA relief for [the employee’s] failure to comply with [the employer’s more stringent] internal notice requirements” in the context of either foreseeable or unforeseeable leave. Cavin, 346 F.3d at 722-23. Verbal notice can be sufficient. 29 C.F.R. §§ 825.302(c), 825.303(b). There are no “magic words” and “[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA .... ” 29 C.F.R. §§ 825.302(c), 825.303(b); Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir.2007). When notice has been found to be deficient, “it has been because the employee failed to convey the reason for needing leave.” Samowski, 510 F.3d at 403. The employee must state the reason for the leave with some specificity; since most requested leaves do not qualify under the FMLA to hold otherwise “would be to place a substantial and largely wasted investigative burden on employers.” Aubuchon, 359 F.3d at 953. Merely calling in sick does not meet the employee’s burden. Stevenson v. Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir.2007); Collins, 272 F.3d at 1008. Instead, the employee must “give[ ] the employer enough information for the employer to reasonably conclude that an event described in the FMLA § [2612(a)(1) ] has occurred.” Cavin, 346 F.3d at 723-24 (quoting Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir.1999)); see also Aubuchon, 359 F.3d at 952 (noting that “[i]f you have brain cancer but just tell your employer that you have a headache, you have not given the notice that the Act requires”). Put another way, the employee “just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave.” Aubuchon, 359 F.3d at 953; see also Sarnowski, 510 F.3d at 402-03 (quoting Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005)) (holding that “[i]n order to benefit from the protections of the [FMLA], an employee must provide his employer with enough information to show that he may need FMLA leave”) (emphasis added in Sar-nowski). Once an employee has provided his employer with sufficient notice of his need for FMLA leave, the employer must, “within one or two business days if feasible,” furnish to the employee “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” 29 C.F.R. § 825.301(b), (c). In the case of a brief absence, where the employer only learns its reason after the employee has returned to work, the employer may, upon “appropriate notice to the employee,” retroactively designate the absence as FMLA leave within two business days of the employee’s return. 29 C.F.R. § 825.208(e)(1). In either case, the notice must include advise-ments that the employee’s leave “will be counted against [his] annual FMLA entitlement”; “any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so”; and “the employee’s right to restoration to the same or an equivalent job upon return from leave .... ” 29 C.F.R. § 825.301(b)(l)(i), (ii), (vii). The written notice is “in addition” to the notice provision at 29 U.S.C. § 2619(a), which requires the employer to “post and keep posted, in conspicuous places,” a summary of the “pertinent provisions” of the FMLA. Ragsdale, 535 U.S. at 88, 122 S.Ct. at 1160-61, 152 L.Ed.2d at 176; see also Wilson v. Lemington Home for the Aged, 159 F.Supp.2d 186, 193-94 (W.D.Pa.2001) (citing 29 C.F.R. § 825.301(b)(1)) (holding that “the written notice is in addition to any employer handbook”). The more “comprehensive and individualized notice required by the regulations is [according to the Secretary of Labor] necessary to ensure that employees are aware of their rights when they take leave.” Ragsdale, 535 U.S. at 88, 122 S.Ct. at 1160-61, 152 L.Ed.2d at 176 (citing 60 Fed.Reg. 2220 (1995)). If the employer is uncertain whether the leave qualifies under the FMLA “he should make a preliminary designation,” notify the employee, and “request such additional information from the employee’s doctor or other reputable source as may be necessary to confirm the employee’s entitlement.” 29 C.F.R. § 825.208(e)(2); Aubuchon, 359 F.3d at 953 (citing 29 C.F.R. §§ 825.302(c), 825.303(b), (d); Cavin, 346 F.3d at 723-24); see also Peter v. Lincoln Technical Inst., Inc., 255 F.Supp.2d 417, 441 (E.D.Pa.2002) (holding that “the regulations are clear that once the employer determines that it requires more information to determine whether FMLA leave is being requested, the burden shifts to the employer to investigate further”); Barnett v. Revere Smelting & Ref. Corp., 67 F.Supp.2d 378, 385-86 (S.D.N.Y.1999) (holding that “[a]n employer’s duty to conduct further inquiry into a request for leave is first triggered when an employee gives sufficient notice of a medical need for the requested leave”) (citation and internal quotation marks omitted). The primary avenue of further inquiry and, indeed, the principal anti-abuse provision of the FMLA is the health care provider’s certification. Manuel v. Westlake Polymers, 66 F.3d 758, 763-64 (5th Cir.1995); see also 29 U.S.C. § 2613. As discussed above, an employer may request this certification once an employee has provided sufficient information to invoke the FMLA and if an employee has provided the employer with adequate notice of an FMLA-qualifying condition and the employer fails to provide the written notice required by 29 C.F.R. § 825.301, “the employer may not take action against [the] employee for failure to comply with any provision required to be set forth in the notice,” including that of medical certification. 29 C.F.R. § 825.301(f). This does not, however, mean that an employer who fails to demand certification is thereafter barred from disputing whether an employee had a serious medical condition. Call v. Fresenius Med. Care Holdings, Inc., 534 F.Supp.2d 184, 192-93 (D.Mass.2008) (citing Wheeler v. Pioneer Dev. Servs., Inc., 349 F.Supp.2d 158, 168 (D.Mass.2004)) (reversing its holding in Wheeler, the only case in the federal system of which the Court is aware to have held that an employer’s failure to demand certification did act as a bar to future challenges to the employee’s condition). The statute itself does not mandate certification; to the contrary, its language is permissive, only stating that “[a]n employer may require” one. 29 U.S.C. § 2613(a) (emphasis added); see also Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir.2007) (noting that the nearly identical permissive language in 29 U.S.C. § 2613(c)(1) regarding the employer’s right to demand a second certification does not “requir[e] an employer to obtain a second opinion or else waive any future opportunity to contest the validity of the [first] certification”); Rhoads v. FDIC, 257 F.3d 373, 386 (4th Cir.2001) (same). Moreover, limiting an employer’s choices to either a demand for certification or waiver would be inefficient as it “would require every employer to invoke the full panoply of FMLA mechanisms or be prohibited ever after from challenging the legal adequacy of even the most paltry evidence regarding an employee’s medical condition.” Call, 534 F.Supp.2d at 192-93. In pertinent part, a certification is sufficient if it includes “the date on which the serious health condition commenced” and its probable duration; “appropriate medical facts”; “a statement that the employee is unable to perform the functions of the position of the employee”; and, in the case of intermittent leave, “a statement of the medical necessity for the intermittent leave and its expected duration .... ” 29 U.S.C. § 2613(b). If the employer “has reason to doubt the validity” of the initial certification the employer may require, at its expense, a second certification by a health care provider whom it has “designated or approved.” 29 U.S.C. § 2613(c). If the second opinion differs from the first the employer may then require, again at its expense, the opinion of a third provider jointly approved by the employer and employee whose opinion “shall be considered to be final and shall be binding on the employer and the employee.” 29 U.S.C. § 2613(d). For an ongoing condition, the employer may also require recertification, albeit generally “no more often than every 30 days.” 29 C.F.R. § 825.308. For purposes of the instant inquiry, the FMLA proscribes two “relatively distinct” forms of activity: interference with the Act’s prescriptive rights and “discrimination based on the exercise of [those] rights.” 29 U.S.C. § 2615(a); Callison, 430 F.3d at 119. Interference includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b). Discrimination includes the “use [of the] taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” Callison, 430 F.3d at 119 (citing 29 C.F.R. § 825.220(c)); Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 & n. 9, 147 (3d Cir.2004). The proper classification of FMLA claims is more than an idle exercise in legal taxonomy; interference and discrimination claims have very different burdens of proof. To prevail on an interference claim, the employee need only show by a preponderance of the evidence “that he was entitled to benefits under the FMLA and that he was denied them.” Callison, 430 F.3d at 119. This amounts to a strict liability standard. Pinson v. Berkley Med. Res., Inc., Civil Action No. 03-1255, 2005 WL 3210950, at *14, 2005 U.S. Dist. LEXIS 13045, at *44 (W.D.Pa. June 21, 2005) (citing Williams v. Shenango, Inc., 986 F.Supp. 309, 317-18 (W.D.Pa.1997)). By contrast, an employee’s discrimination claim invokes the burden shifting scheme of either Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), if there is direct evidence of discrimination or, if the evidence of discrimination is circumstantial, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hicks v. Tech Indus., 512 F.Supp.2d 338, 357 (W.D.Pa.2007). In either case the employee must show that “(1) [he] availed [himself] of a protected right under the FMLA; (2) [he] was adversely affected by an employment decision; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action.” Parker v. Hanhemann University Hosp., 234 F.Supp.2d 478, 488 (D.N.J.2002) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st Cir.1998)); see also Conoshenti, 364 F.3d at 146. Whether the absences for which Plaintiff claims FMLA protection were in fact so protected will be addressed infra. However, to the extent that they were protected there is ample direct evidence, in the form of Plaintiffs termination letter and Silka’s testimony, that these absences were factors in Silka’s decision to terminate Plaintiff. For purposes of the instant case, the Court will therefore examine only the Price Waterhouse regime. Under Price Waterhouse, once the plaintiff has presented direct evidence that his leave “was a substantial factor in the decision to fire him, the burden of persuasion on the issue of causation shifts, and the employer must prove that it would have fired the plaintiff even if it had not considered [the FMLA] leave.” Conoshenti, 364 F.3d at 147 (quoting Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir.2002)). ' “This evidentiary scheme essentially requires the employer to place the employee in the same position he ... would have occupied absent discrimination.” Id. at 148 & n. 1