Full opinion text
MEMORANDUM AND ORDER NANCY F. ATLAS, District Judge. This case arises from events occurring during the employment of Plaintiff Pamela Miles-Hickman’s (“Hickman” or “Plaintiff’) by Defendant David Powers Homes, Inc. (“DPH” or “Defendant”) and the cessation of that employment. The parties have filed several motions. First, Plaintiff filed a Motion for Partial Summary Judgment [Doc. #43] (“Plaintiffs Motion”), in which she seeks summary judgment on her COBRA claim against Defendant. DPH filed a Motion for Summary Judgment [Doc. # 46] on all claims Plaintiff asserts in this case. DPH has additionally filed a Motion for Partial Summary Judgment on Damages [Doc. #48] (“Defendant’s Damages Motion”). Upon review of the parties’ submissions, all pertinent matters of record, and applicable law, the Court concludes that Defendant’s summary judgment motion on liability should be granted in part and denied in part, that Defendant’s Damages Motion should be granted in part and denied in part, and that Plaintiffs Motion should be granted in part and denied in part. Hickman also has filed a Motion to Exclude Defendant’s Experts [Doc. # 47] and Objections to Defendant’s Motion for Summary Judgment on All of Plaintiffs Claims [Doc. # 57]. DPH has similarly filed Objections to Plaintiffs Summary Judgment Evidence [Doc. # 64]. The Court will rule on these motions only to the extent that the Court relies on information to which a party objects. I. FACTUAL BACKGROUND The background facts can be summarized as follows. Hickman was hired on an at-will basis as a sales assistant with home-builder DPH in September 2008. She was assigned to the Crighton Ridge community to assist with home sales. Upon being hired and during her tenure, Hickman was provided a variety of employment documents, including an employee handbook and information concerning employee benefits. As a DPH employee, Hickman received employer-paid health insurance from Aetna Health, Inc. (“Aetna”). Hickman claims to suffer from a variety of ailments that she asserts render her extremely sensitive to certain chemicals, strong fragrances, and peanuts. Accordingly, she requested and received informal accommodations from the Crighton Ridge Sales Consultant, Bill Oldham. Oldham refrained from wearing heavy cologne and prohibited cigarettes in Hickman’s work area. He also ensured that no pesticides, wet paint, candles, or fragrances were used in Hickman’s work area when she was present, and that odorless ant bait was used by DPH’s maintenance staff, among other directives. Hickman alleges that on November 18, 2005, immediately after DPH terminated Oldham’s employment, she had a discussion with Jennifer Fusco, DPH’s Director of Human Resources, about Hickman’s various allergies and the accommodations Oldham had made. Hickman states she orally requested at that time that Oldham’s replacement continue to honor her requests. On December 1, 2005, Hickman wrote an email to Fusco outlining some of her disabilities and requesting formal ADA accommodations. There appears no dispute that Fusco responded, pursuant to DPH’s policy, that Hickman needed to provide a report from a physician substantiating her medical conditions and addressing the accommodations she was requesting, so that the company could initiate the process of determining whether and how to accommodate Hickman’s needs. Hickman reports that before she was able to comply with the substantiation request, Fusco and DPH Sales Director, Kevin Weiderhold, came to her office on December 7, 2005, and, for the first time since she was hired two years earlier, provided her feedback on her job performance. Hickman states that Fusco and Wiederhold criticized her performance and attempted to demote her by relocating her to another DPH community. Hickman claims that after she protested that she was being discriminated against because of her disability, they rescinded the “demotion” but informed Hickman that if she did not meet certain sales requirements within thirty days, she would be terminated. A few days after the December 7, 2005, meeting, Hickman began experiencing medical problems and required a battery of medical tests. Hickman asserts that she contacted Bob Svoboda, Bill Oldham’s replacement as Crighton Ridge Sales Consultant — who she claims was her immediate supervisor and the proper person to contact in event of an absence from work — and/or co-workers at DPH each of the four days she missed work as a result of her illness, both to inform them that she would be absent and to check on projects on which she was working. Hickman has also testified that on December 14, 2005, she left a message on Kevin Wiederhold’s voicemail regarding taking time off for medical tests, although, Defendant disputes this assertion. The day before her scheduled return on December 17, Hickman discovered an email from Fusco explaining that because Hickman allegedly failed to comply with DPH’s “Attendance, Punctuality, and Dependability” policy, she was deemed to have voluntarily resigned. Hickman asserts that following her separation from DPH, the company failed to provide her with notice and information concerning her entitlement to continuation of her health benefits. DPH disputes this allegation, pointing to language in the DPH employee handbook concerning post-termination coverage, and to the separation letter sent to Hickman on December 16, 2005, wherein it states: “Your benefits will run through December 31, 2005. After that date, you will be eligible for COBRA, and will be sent notification directly from InfiniSource (our COBRA outsource company).” Hickman subsequently filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging disability discrimination and retaliation. Upon receiving a “Notice of Right to Sue” letter from the EEOC, she timely filed this lawsuit, alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., the Texas Commission on Human Rights Act (“TCHRA”), Tex. Lab.Code § 21.001 et seq., the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. § 1161 et seq. DPH has moved for summary judgment on all claims and the damages asserted by Hickman. Hickman seeks summary judgment in her favor on her COBRA claim. II. LEGAL STANDARD Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). In deciding a motion for summary judgment, the Court must determine whether 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); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008). For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-mov-ant’s case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “‘the absence of evidence supporting the non-moving party’s case.’ ” Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak, 953 F.2d at 913). However, if the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the non-movant’s response. ExxonMobil Corp., 289 F.3d at 375. If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted). In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). However, factual controversies are resolved in favor of the non-movant “only when there is an actual controversy — that is, when both parties have submitted evidence of contradictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999). The non-movant’s burden is not met by mere reliance on the allegations or denials in the non-movant’s pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002) (noting that unsworn pleadings do not constitute proper summary judgment evidence). Likewise, “unsubstantiated or conclusory assertions that a fact issue exists” do not meet this burden. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Instead, the non-moving party must present specific facts which show “the existence of a ‘genuine’ issue concerning every essential component of its case.” Id. In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Finally, “[w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Id. (internal citations and quotations omitted); see also de la O v. Hous. Auth. of El Paso, 417 F.3d 495, 501 (5th Cir.2005). III. ANALYSIS A. ADA and TCHRA Claims Hickman claims that DPH discriminated against her in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Texas Commission on Human Rights Act (“TCHRA”), Tex. Lab.Code § 21.001 et seq., when it terminated her employment because of her alleged disabilities. Hickman also asserts that prior to her termination, DPH failed to provide reasonable accommodations for her disability and that the company unlawfully retaliated against her for requesting accommodations. Defendant contends that Plaintiff lacks evidence to satisfy the requirements of proof necessary to each of these theories and thus Defendant is entitled to summary judgment on all of them. 1. Disparate Treatment Based on Disability — Wrongful Termination Hickman’s first claim is that Defendant DPH terminated her employment because she is disabled, and thus violated the ADA and TCHRA anti-discrimination provisions. In order to survive summary judgment, Hickman must raise a genuine issue of material fact whether DPH discriminated against her on the basis of one or more provable disabilities. a. Burdens of Proof The ADA makes it unlawful for an employer to discriminate against “a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Unlawful discrimination under the ADA can be established through either direct or circumstantial evidence. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995). As Hickman sets forth no direct evidence that she was discharged for unlawful reasons, her ADA claims are analyzed using the burden shifting test originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this test, a plaintiff must first make a prima facie showing of discrimination; the defendant then must articulate a legitimate nondiscriminatory reason for the adverse employment action; and, if the defendant meets its burden, the plaintiff must then prove by a preponderance of the evidence that the defendant’s explanation is pretex-tual. Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n. 3, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)); Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir.2003); Daigle, 70 F.3d at 396. b. Prima Facie Case In order to make out a prima facie case of disability discrimination, a plaintiff must establish that: “(1) [sh]e is disabled or is regarded as disabled; (2)[s]he is qualified for the job; (3)[s]he was subjected to an adverse employment action on account of h[er] disability; and (4)[s]he was replaced by or treated less favorably than non-disabled employees.” Gowesky, 321 F.3d at 511 (citing McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir.2000)); see also Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.2001); Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 623 n. 3 (5th Cir.2000); Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999); Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir.1997); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 162 (5th Cir.1996); Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). c. “Disability” Legal Standards The ADA prohibits discrimination in employment against a “qualified” person with a “disability.” The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA further defines “disability” to include “(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 impairment; or (C) being regarded as having such impairment.” 42 U.S.C. § 12102(2); ConAgra Grocery, 436 F.3d at 474. Merely having an impairment does not make one disabled for purposes of the ADA. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). The impaired individual must further demonstrate that the impairment substantially limits a major life activity. Id.; ConAgra Grocery, 436 F.3d at 474. The ADA does not define the terms “substantially limits” or “major life activities.” In interpreting this standard, however, the Supreme Court and the Fifth Circuit have made clear that the terms must be “interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota Motor Mfg., 534 U.S. at 197, 122 S.Ct. 681; Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654 (5th Cir.2003). “The substantial-limit requirement is the linchpin of § 12102(2)(A). Without it, the ADA would cover any minor impairment that might tangentially affect major life activities such as breathing, eating, and walking. For this reason, an impairment must not just limit or affect, but must substantially limit a major life activity.” Waldrip, 325 F.3d at 655 (citing Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999)). “‘Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ ” Toyota, 534 U.S. at 196, 122 S.Ct. 681. In determining whether an impairment substantially limits a major life activity, courts derive guidance from the regulations promulgated by the EEOC. See, e.g., Waldrip, 325 F.3d at 655 n. 1; Dupre v. Charter Behavioral Health Systems of Lafayette Inc., 242 F.3d 610, 614 (5th Cir.2001); Gonzales v. City of New Braunfels, 176 F.3d 834, 836 (5th Cir.1999). EEOC regulations define “major life activities” to include functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(f); Aldrup v. Caldera, 274 F.3d 282, 286-87 (5th Cir.2001). Whether an impairment is “substantially limiting” depends on “(1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact.” Dupre, 242 F.3d at 614 (citing 29 C.F.R. § 1630.2©). “[TJemporary, non-chronic impairments of short duration, with little or no longer term or permanent impact, are usually not disabilities.” Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.1998); see also Deas v. River West, L.P., 152 F.3d 471, 479 (5th Cir.1998) (holding that temporary loss of awareness from petit mal seizures did not constitute a substantial limitation on a major life activity, even though awareness encompasses the major life activities of seeing, hearing, and speaking). Moreover, determination of whether an impairment substantially limits a major life activity must be made with consideration of any mitigating measures exercised by the individual. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Equal Employment Opportunity Comm. v. R.J. Gallagher Co., 181 F.3d 645, 653-54 (5th Cir.1999). “A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity.” Sutton, 527 U.S. at 482-83, 119 S.Ct. 2139. d. Disability Analysis: Substantially Limiting Impairment The parties hotly dispute whether Hickman has — or more importantly, in 2005 at the time of her employment with DPH, had — a “disability” under the ADA and TCHRA. Hickman primarily contends she has a substantial impairment to her ability to breathe due to various alleged allergies to chemicals and other allergens, and “allergy-induced asthma.” In her Response to Defendant’s Motion, she also asserts a substantial impairment in her ability to walk. Hickman claims impairment to her ability to breathe and walk is a result of exposure to chemicals, including inter alia wet latex paint, strong perfume, scented candles and potpourri, which cause her throat to close, restricting her airways. She claims she also suffers from anaphylactic reactions, autoimmune problems, and “hyperactive reactive airway disease” that “sets her bronchial tubes into spasms,” cardiac dysfunction that causes “uncontrollably rapid” heart beat, and tachycardia that cause her to be “short of breath and panicky.” Plaintiff claims that “[w]hen [she is] exposed to these asthmatic ‘triggers,’ [she] is prone to severe allergic reactions that induce swelling of [her] throat, lips and tongue and airway passages, causes shortness of breath, tightness of [her] chest muscles, hives irritation of [her] mucous membranes, watery eyes, itching of the mouth nose and throat, mouth blisters, allergy induced migraine headaches and sudden loss of blood pressure that substantially affects [her] ability to walk, talk and breathe.” Defendant counters that Plaintiff has presented insufficient evidence of any substantial limitation in daily functioning as a result of the allergies and other conditions that affect her breathing. Defendant points out that Dr. Campbell, a treating physician in 1998, stated that “[w]ith proper treatment she should be able to maintain gainful employment.” Defendant also contends that a medical diagnosis of an impairment is itself insufficient to prove a substantial limitation, and that Plaintiff can function with “mitigating measures” such as taking Benadryl or Zyrtec when symptoms begin to appear. Substantially Limiting Impairment — Breathing. Breathing is considered a major life activity. See 29 C.F.R. § 1630.2(i); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996); see also Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1258 (10th Cir.2001) (noting that “several courts have concluded that breathing difficulties may constitute an impairment of a major life activity”). However, the determination of disability must be made on an individualized, case-by-case basis. See Sutton, 527 U.S. at 483, 119 S.Ct. 2139. Whether the impairment is “substantially limiting” depends on the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term impact. Defendant contends that Plaintiffs breathing limitations are sporadic and temporary, and suggests that the findings of the medical professionals are incomplete, conclusory, tentative, and/or based on standards other than those applicable under the ADA. Plaintiff asserts that her medical records from the 1990’s indicate that her allergies and autoimmune conditions (to the extent they have been substantiated with medical testing) are chronic and long-lasting. Severe allergies and asthma, if proven, have the potential to constitute an impairment that substantially limits the life activity of breathing. See, e.g., Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959, 962 (7th Cir.1996). However, this impairment must rise to the level of substantially limiting, and occasional allergic or asthmatic reactions have not been found to rise to this level. See Muller v. Costello, 187 F.3d 298 (2d Cir.1999) (finding that plaintiff who suffered from severe bronchitis with a strong asthmatic component that made it difficult to breathe when exposed to cigarette smoke, but who demonstrated substantial physical activity off the job without encountering breathing problems, was not substantially limited in a major life activity); Land v. Baptist Med. Ctr., 164 F.3d 423, 425 (8th Cir.1999) (holding that plaintiffs severe allergic reaction to peanuts did not substantially limit the major life activity of breathing when the plaintiffs ability to breathe was “generally unrestricted” when not exposed to peanuts); Hamilton, 136 F.3d at 1051 (“temporary, non-chronic impairments of short duration, with little or no permanent long-term impact, are usually not disabilities”); Zirpel v. Toshiba Am. Info. Sys., Inc., Ill F.3d 80, 81 (8th Cir.1997) (holding that although breathing was hampered during an actual panic attack, the disorder did not substantially limit the plaintiffs major life activity of breathing where the attacks were infrequent and very manageable); Robinson, 101 F.3d at 37 (“Several instances of shortness of breath when climbing stairs [resulting from asbestosis and reduced lung capacity] do not rise to the level of substantially limiting the major life activity of breathing”); Murphy v. Bd. of Educ. Of Rochester City Sch. Dist., 273 F.Supp.2d 292, 315 (W.D.N.Y.2003) (“[m]any courts addressing the issue ... have found that asthma does not substantially limit the particular plaintiffs ability to work or breath and therefore does not constitute a disability under the ADA”) (citing Castro v. Local 1199, Nat'l Health and Human Servs. Employees Union, 964 F.Supp. 719, 724 (S.D.N.Y.1997)); Gits v. Minn. Mining & Mfg. Co., 2001 WL 1409961 (D.Minn.2001) (finding that a plaintiffs severe breathing difficulties which only occurred when exposed to a particular chemical allergen did not substantially limit the plaintiffs ability to breath within the definition of disability under the ADA); Marshall v. AT & T, Inc., 1996 WL 929599, at *3 (N.D.Tex.1996) (finding that plaintiffs “breathing impairment is, as a matter of law, not a ‘disability’ since it is not permanent in nature”); Emery v. Caravan of Dreams, Inc., 879 F.Supp. 640, 642-43 (N.D.Tex.1995) (finding that plaintiffs allergy to cigarette smoke did not qualify as a disability within the meaning of the ADA because it did not substantially impair her ability to work, recreate, breathe, or have a normal life). Plaintiffs allergic reactions or incidents of distress are sporadic and of undefined length and severity. Plaintiff has not produced evidence sufficient to establish a genuine issue of fact that she generally is unable to perform the major life activity of breathing. Hickman does not point the Court to sufficient evidence that the duration of problematic episodes or that the flare ups are frequent or cause lasting impact. Furthermore, what little admissible evidence the Court has located in the record supports the view that the incidents at best reflect temporary impairments lacking in the types of permanent or long-term effects required to constitute a disability. Hickman testified and the medical records reveal that by medicating herself and by removing herself from proximity to the alleged allergens, she has controlled the conditions satisfactorily such that her breathing at most times is not affected and any symptoms she does have dissipate. Hickman has failed to meet her summary judgment burden of raising a genuine fact issue that at the time she was employed by DPH she was substantially limited in the major life activity of breathing. Substantially Limiting Impairment— Walking. Plaintiff also contends that she is and was when employed by Defendant substantially limited in the life activity of “walking.” She claims she walks very slowly, gets very tired, and can only walk “short distances and then is out of breath.” Defendant first contends that this disability was not timely disclosed and should not be permitted. Plaintiff explains without contradiction that she provided to the Defendant during discovery the documentation on which she now relies. Defendant did not pose any interrogatory that called for her to enumerate all her impairments. While Plaintiff arguably had an obligation to set forth in her Federal Rule of Civil Procedure 26(a) and (e) disclosures exactly what impairments she claims she suffered, it appears that Defendant could have discerned during discovery that Plaintiff was asserting difficulty walking as an aspect of her disability. The Court therefore turns to the merits of this aspect of Hickman’s disability claim. Walking is a major life activity. See 29 C.F.R. § 1630.2(i); Talk, 165 F.3d at 1025. However, as noted previously, an actionable impairment must be substantially limiting; occasional difficulties while walking do not rise to a necessary level of severity. . Talk, 165 F.3d at 1025 (“moderate difficulty experienced while walking does not rise to the level of a disability”); Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir.1997) (“moderate difficulty or pain experienced while walking does not rise to the level of a disability”); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir.1996) (inability to walk more than one mile and inability to jog does not rise to the level. of a disability); Okpulor v. PNC Bank, 2005 WL 6047275, at *4 (N.D.Tex. Dec.14, 2005); Smith v. United Parcel Service, 50 F.Supp.2d 649, 652 (S.D.Tex.1999). Hickman has failed to direct the Court to specific evidence in the record relating to the severity, duration, or frequency of the alleged walking difficulties. Plaintiffs sole citation is to a statement signed by a Dr. Earl Martin for a Texas Department of Transportation (“TxDOT”) certification that she is “disabled” based on the doctor’s claimed perception that she has “mobility problems that substantially impair the person’s ability to ambulate.” Issuance of a certificate by TxDOT is not dispositive of the ADA issues before this Court. Plaintiff provides no authority of TxDOT’s standards for issuance of its certificate or how that standard compares to the standards under the ADA. Hickman accordingly has failed to meet her summary judgment burden on the issue on whether she is substantially limited in the major life activity of walking. In summary, Hickman has failed to raise a genuine fact issue that she is substantially limited in the major life activities of breathing or walking. As matter of law, Hickman has not shown she can establish a prima facie case of disability discrimination on the basis of actual disability as defined by 42 U.S.C. § 12102(2)(A). e. Disability Analysis: Record of Disability Hickman also contends that she had “a record” of being disabled because she provided to Defendant on December 8, 2005 a packet of medical records, doctors’ letters, and medical articles on her disabilities. The ADA definition of “disability” permits suits by those who, though not actually disabled as defined by 42 U.S.C. § 12102(2)(A), have a “record of such an impairment.” 42 U.S.C. § 12102(2)(B). To demonstrate a record of impairment, Hickman must show that (1) she has a history of impairment; and (2) the impairment substantially limits a major life activity. Blanks v. Sw. Bell Commc’ns, Inc., 310 F.3d 398, 402 (5th Cir.2002) (citing Dupre, 242 F.3d at 615). Thus, while an individual may be able to show she has a history of impairment, if she fails to show that the impairment substantially limits a major life activity, she cannot establish a prima facie case of disability discrimination on the basis of a “record of impairment.” See id. Applicable regulations define a “record of impairment” to mean that an individual “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k). The Fifth Circuit has interpreted this to mean that the individual, “at some point in the past, must have met or been classified as meeting the standard set forth in section 12102(2)(A).” Burch, 119 F.3d at 321. That Hickman believed her alleged impairments were significant enough to warrant medical treatment at some point in the past and that medical professionals compiled records of their treatments of her does not establish a “record of impairment” as used in the ADA. As discussed above, Hickman has failed to raise a genuine issue of fact to show that she was substantially limited in a major life activity to the degree required under the ADA. Having failed to satisfy this proof requirement, Hickman cannot establish as a matter of law a prima facie case of disability discrimination on the basis of a “record of impairment” as defined by § 12102(2)(B). f. Disability Analysis: Regarded as Disabled Hickman also argues that she was “regarded as disabled” by Defendant DPH. Under the ADA, “disability” may be shown by those who, though not actually disabled as defined by 42 U.S.C. § 12102(2)(A), are “regarded as” having such an impairment by the employer. See id. § 12102(2)(C). A plaintiff can establish a “regarded as” claim by demonstrating that she: (1) has an impairment which is not substantially limiting but which an employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment. ConAgra Grocery, 436 F.3d at 475 (citing Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir.1996)). Hickman does not address prongs two and three, therefore the Court’s analysis focuses on whether Hickman had an impairment which is not substantially limiting but which DPH perceives as constituting a substantially limiting impairment. In support of her claim, Hickman relies on the evidence of Bill Oldham’s informal accommodations. Oldham stated in an affidavit that “[biased on [Hickman’s] requests and special needs, and because her requests were not a burden on me or any other employee, I accommodated her requests.” Hickman argues that Oldham “would not have granted these accommodations ... unless he regarded Hickman as having an impairment that is substantially limiting.” This Court is unpersuaded. Hickman’s theory has two deficiencies. First, to be “regarded as” disabled, a plaintiff cannot simply rely on an employer’s knowledge of the employee’s physical condition. Rather, the plaintiff must show that the employer perceived the employee had an impairment that rose to the level of an actionable disability, namely, that the impairment caused a substantial limitation to the employee’s ability to perform a major life activity. See Garrett v. AutoZone Inc., 224 F.3d 765, 2000 WL 992259, at *2 (5th Cir.2000) (unpublished); Francis v. City of Meriden, 129 F.3d 281 (2d Cir.1997). While the evidence shows that Oldham may have had some concern about Hickman’s condition or that he may have believed she had some level of chemical sensitivities, Plaintiff presents no evidence that Oldham thought that she was “disabled” in that he believed she suffered substantial limitations on the major life activities of breathing or walking. Second, and more importantly, Oldham was merely a sales consultant, the top company representative at the sales office for one of DPH’s several communities in development. There is no evidence he was in DPH management or that he informed management of the courtesies he was showing Hickman. Oldham’s unilateral action undertaken without corporate management knowledge or approval cannot be imputed to DPH to show that it “regarded” Plaintiff as disabled. Hickman has failed to establish a prima facie case of disability discrimination on the basis of being “regarded as disabled” as defined by 42 U.S.C. § 12102(2)(C). g. Disability Analysis: Conclusion Hickman therefore has faded to establish that she has a disability under any of the three definitions provided by the ADA. 42 U.S.C. § 12102(2). Therefore, she cannot demonstrate a genuine fact issue that she is able to prove a prima, facie case of disability discrimination under the ADA and the TCHRA. For this reason, DPH is entitled to summary judgment on Plaintiffs disability discrimination claims. h. Replacement by or Treatment Less Favorable than Non-Disabled Employees Alternatively, the Court considers the fourth prong of Hickman’s prima facie case — that she was replaced by or treated less favorably than similarly situated non-disabled employees. Hickman cites to no evidence to raise a fact issue on this prong. Plaintiffs sole comment here is that she “had Declarations and Deposition testimony that showed that no other sales assistant was terminated for not showing up while off for medical care.” Plaintiffs argument misses the mark. To establish this element of the prima facie case, Hickman must either show that she was replaced by a non-disabled employee or that she was “treated differently under circumstances ‘nearly identical’ to [hers].” See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.1995). Thus Hickman needs to demonstrate that Defendant DPH permitted at least one other DPH sales assistant at a DPH residential community to continue to work (i.e., not to have “voluntarily resigned”) although she violated the “no call-no show” policy on two occasions close in time. Having failed to make this showing, Hickman has not established a genuine fact issue on the fourth prong of a prima facie case of disability discrimination. IV. Disability Discrimination: Conclusion Because Hickman has failed to establish a genuine fact issue on two of the four elements necessary for a prima facie showing of disability discrimination under the ADA and the TCHRA, the Court does not reach the balance of the McDonnell Douglas test. DPH is entitled to summary judgment on Hickman’s disability discrimination claims. 2. Failure to Accommodate Hickman next alleges that DPH unlawfully failed to accommodate her disabilities, as required under the ADA and TCHRA. Under the ADA, an employer “discriminates” against an employee if it fails to “make[ ] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an ... employee.” 42 U.S.C. § 12112(b)(5)(A). An ADA plaintiff in a failure to accommodate claim must qualify as an individual with a disability, see Mason v. United Air Lines, 274 F.3d 314, 316 (5th Cir.2001), and must also “show that the employer knew, or should have known, of such employee’s substantial physical or mental limitation.” Taylor v. Principal Fin. Group, 93 F.3d 155, 164 (5th Cir.1996); see also Seaman, 179 F.3d at 300 (“Because the ADA requires employers to accommodate the limitations arising from a disability, and not the disability itself, an employee seeking to assert a disability discrimination claim must produce evidence that the employer knew not only of the employee’s disability, but also of the physical or mental limitations resulting therefrom.” (internal citations omitted)). As discussed in the preceding sections of this Memorandum, Hickman has not demonstrated she can prove she is a person with a legally viable “disability” under the ADA, the threshold question. Talk, 165 F.3d at 1024 (the ADA “confers a special meaning to the term ‘disability.’ ”). Hickman’s failure to accommodate claim thus fails as a matter of law, and Defendant is entitled to summary judgment on Plaintiffs failure to accommodate claim. 3. Retaliatory Discharge Hickman also claims that DPH violated the ADA and TCHRA when it allegedly terminated her employment in retaliation for her involvement in a protected activity. As a preliminary matter, DPH contends that Hickman failed to plead this claim and thus, that it is not cognizable on summary judgment. See Cutrera, 429 F.3d at 113 (“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.”). DPH relies on an apparent discrepancy between Hickman’s EEOC charge of discrimination, which contains express allegations of discrimination and retaliation, and her complaint in this lawsuit, which arguably includes only the discrimination charge. The factual narrative in Hickman’s federal court Original Complaint strongly suggests that she is pleading a retaliation claim, but she mentions a retaliation claim only in the section titled “Procedural Requisites,” where she alleges she “filed an EEOC charge of disability discrimination and retaliation.” Hickman did not attach the EEOC charge to her complaint, nor did she incorporate its contents by reference. “The function of a complaint is to give the defendant fair notice of the plaintiffs claim and the grounds upon which the plaintiff relies.” St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir.2000). “When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2). This rule applies at the summary judgment stage, as well as at trial. See, e.g., United States ex rel. Canion v. Randall & Blake, 817 F.2d 1188, 1193 (5th Cir.1987). “Thus, when both parties squarely address[] [a claim] in their summary judgment briefs, it may be argued that the complaint was constructively amended.” Handzlik v. United States, 93 Fed.Appx. 15, 17 (5th Cir.2004) (citing Whitaker v. T.J. Snow Co., 151 F.3d 661, 663 (7th Cir.1998)). DPH asserts in passing that Hickman has not pled a retaliation claim but acknowledges that that claim may be in the case. This recognition is well founded. The facts alleged by Hickman in her Original Complaint suggest she intends to include a retaliation claim. Hickman’s EEOC charge, which Defendant received, further supports this inference. The parties arguments during discovery hearings in this case demonstrate DPH understood Hickman to assert a retaliation claim in this Court. In addition, it appears that the parties conducted discovery pertaining to such a claim. Thus, DPH had fair notice of Hickman’s federal court retaliation claim and the parties impliedly consented to litigation of it. On the merits of the retaliation claim, the issue is whether Hickman has established a genuine question of material fact that her employment with DPH was terminated due to her involvement in a protected activity under the ADA. Retaliation claims brought under the ADA are analyzed using the McDonnell Douglas burden-shifting test applied to Hickman’s disparate treatment discrimination claim. First, Hickman must establish a prima facie case of retaliation. If she is successful, the burden shifts to DPH to articulate a legitimate, non-discriminatory reason for the challenged employment action. If DPH does so, Hickman must demonstrate that the proffered reason is pretextual. See Jenkins v. Cleco Power LLC, 487 F.3d 309, 316-17 (5th Cir.2007) (citing Sheirod, 132 F.3d at 1121-22). In the context of a retaliation claim, “the employee’s ultimate burden is to prove that the employer’s stated reason for the adverse employment action was merely a pretext for the real, retaliatory purpose.” Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.2005). To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) she engaged in an activity protected by the ADA; (2) she was subjected to an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. Seaman, 179 F.3d at 301. Importantly, “in order to prosecute an ADA retaliation claim, [the] plaintiff need not show that she suffers from an actual disability. Instead, a reasonable, good faith belief [by the plaintiff] that the statute has been violated suffices.” Tabatchnik v. Cont’l Airlines, 262 Fed.Appx. 674, 676 & n. 1 (5th Cir.2008) (citing Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir.2001); Krouse v. Am. Sterilizer, 126 F.3d 494, 502 (3d Cir.1997)); see also Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir.1999). a. Engaging in a Protected Activity DPH does not contest that Hickman’s request for accommodations qualifies as a protected activity under the ADA. Hickman satisfies the first element of her pri-ma facie case. See Jenkins, 487 F.3d at 317 n. 3 (5th Cir.2007) (holding that a request for accommodations qualifies as a “protected activity” for the purposes of a retaliation claim). b. Adverse Employment Action The parties strenuously dispute whether Hickman suffered an “adverse employment action” under the second prong of the retaliation prima facie analysis. In this context, an adverse employment action is defined as something that “a reasonable employee would have found materially adverse.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This requires a showing that the challenged conduct “well might have dissuaded a reasonable worker from [engaging in the protected activity].” Id. (substitution in the original). There is no dispute that termination of employment constitutes an adverse employment action. See, e.g., Sherrod, 132 F.3d at 1122; see also Grubic v. City of Waco, 262 Fed.Appx. 665, 667 (5th Cir.2008). The parties debate whether Hickman was terminated or whether she voluntarily resigned when she allegedly violated the company’s “no call-no show” policy by not coming to work for two days and failing to call the correct individual in management, specifically Kevin Wiederhold, each day she was absent. Hickman has amply established that she did not choose to stop working with DPH in December 2005. Although DPH disagrees, from Hickman’s perspective, it was DPH that construed the events in its own favor in order to terminate her employment. There is a genuine fact issue on the adverse employment action prong of the retaliation prima facie test. c. Causal Connection The Court also finds that substantial questions of fact exist on the third prong of the prima facie test — the existence of a causal link between the protected activity and the adverse employment action. The burden of establishing this “causal link” element of a prima facie case is much less onerous than the standard for proving “but-for” causation required for the determination of the ultimate issue of retaliation. Sherrod, 132 F.3d at 1122 n. 8. In evaluating the “causal link” element of a retaliation claim, the Court focuses on three factors: “(1) the extent of the employee’s disciplinary record; (2) whether the employer followed its policies and procedures in dismissing the employee; and (3) the temporal relationship between the protected action and the termination.” Bacon v. EDS, 219 Fed.Appx. 355, 357 (5th Cir.2007) (citing Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir.1994)); see also Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir.2001) (“A ‘causal link’ is established when the evidence demonstrates that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity ... [such as where] the plaintiff shows that the employment decision and [her] protected activity were not wholly unrelated.” (internal citations omitted)). A causal connection may be inferred from evidence that the protected conduct was closely followed by the adverse employment action, so long as “the temporal proximity [is] ‘very close.’ ” Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). In this case, Hickman presented evidence that her alleged termination on December 16 occurred merely fifteen days after her written request for accommodations, that she received her first written reprimand only seven days after her request, and that DPH departed from company policy when it made her continued employment contingent upon sales goals. Given this series of events, a reasonable juror could conclude that Hickman suffered an adverse employment action due to her participation in a protected activity. See Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir.2004) (“In order to withstand summary judgment, [plaintiff] must offer evidence from which the jury may infer that retaliation, in whole or in part, motivated the adverse employment action.”). Hickman has presented sufficient proof that she can make a prima facie case of retaliation. Therefore, the burden shifts to DPH to articulate a legitimate, non-discriminatory reason for the challenged employment action. d. Defendant’s Legitimate, Non-Retaliatory Reason DPH’s burden at the summary judgment stage is one of production, not proof. DPH may meet this burden “through the introduction of admissible evidence, reasons for its action which, ‘if believed by the trier of fact, ’ would support a finding that unlawful discrimination was not the cause of the employment action.” Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir.2000) (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). DPH urges that Hickman “voluntarily resigned” from her position by violating the “no cali-no show” policy when she failed on two successive days to tell Wiederhold, the company’s Sales Manager, who DPH contends was Hickman’s direct supervisor, she would be absent. DPH contends that Hickman’s calls to Bob Svoboda or coworkers (instead of Wiederhold) about her absences were insufficient notice under the “no call-no show” policy. This explanation is sufficient to satisfy DPH’s burden. e. Pretext For summary judgment purposes, Hickman must next demonstrate that a material issue of fact exists about whether DPH’s explanation is pretextual. To meet this burden Hickman must demonstrate that she would have been retained “but for” engaging in the protected activity. Septimus, 399 F.3d at 608; Pineda, 360 F.3d at 487. Hickman must reveal a “conflict in substantial evidence on the ultimate issue of retaliation,” meaning evidence of “such quality and weight that reasonable and fair minded person in the exercise of impartial judgment might reach different conclusions.” Sherrod, 132 F.3d at 1122 (internal citations omitted). The Court concludes that questions of fact exist whether DPH’s proffered reason for its decision to end Hickman’s employment is pretext for an actual retaliatory purpose. In applying its “no call-no show” policy, DPH acknowledges Hickman contacted Bob Svoboda, the Crighton Ridge Sales Consultant, and/or other Crighton Ridge employees to report that she would be out both days and to get someone to cover her duties. The threshold issue is who was Hickman’s supervisor. Hickman presents proof, when the evidence is construed in her favor for summary judgment purposes, that she complied with the company’s “no call-no show” policy. Hickman perceived the on-site Crighton Ridge sales consultant to be her supervisor. Originally, this individual was Bill Oldham, who hired her and who for almost two years oversaw her work and approved her time off. She further testified that Wiederhold told her that Svoboda, the Crighton Ridge sales consultant who replace Oldham, would be her new supervisor. Hickman also has provided a copy of the DPH “Host/Hostess Guide” she received when hired and which “is intended to serve as a guideline which will enable the host or hostess to effectively execute the duties and responsibilities of the DPH Homes sales office.” The Guide states that hostesses such as Hickman are responsible inter alia for completing “[o]ther duties as assigned by the Sales Consultant.” It further directs hostesses to “fill out a time sheet for each week that they work [and][t]urn it in to the Sales Consultant for approval and forwarding to the Corporate Office . Given this evidence, the Court concludes there is a genuine question of material fact about the identity of Hickman’s supervisor, and thus whether Hickman properly gave DPH notice of her absences, whether the company in fact deemed her to have “resigned” her position by failing to properly follow company notification policies. There is, accordingly, a genuine, material fact issue whether DPH’s explanation for the termination of Hickman’s employment was pretext for retaliation. See Laxton v. Gap, Inc., 383 F.3d 572, 579 (5th Cir.2003) (plaintiff may satisfy her burden “either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.”). DPH’s summary judgment motion is denied on Plaintiffs ADA and TCHRA retaliatory discharge claims. B. FMLA Claims Hickman next alleges that DPH violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., by refusing to recognize her two-day absence in December 2005 as FMLA leave and by terminating her as a result of these absences. Under the FMLA, “an eligible employee of a covered employer has the right to take unpaid leave for a period of up to 12 workweeks in any 12-month period when the employee has ‘a serious health condition that makes [her] unable to perform the functions of [her] position.’ ” Bocalbos v. Nat’l Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir.1998) (quoting 29 U.S.C. § 2612(a)(1)(D)). The FMLA also protects employees from interference with leave under the Act, and from retaliation for exercising his or her rights under the Act. Id. Hickman claims that DPH interfered with her rights under the FMLA and terminated her employment in retaliation for her exercise of those rights. 1. Interference with FMLA Leave DPH’s motion does not address Hickman’s FMLA interference claim, but its Reply to Plaintiffs Responses to its Motion for Summary Judgment does. The Court therefore addresses the issue. Hickman has raised a genuine fact question whether DPH interfered with her attempt to take FMLA leave. Hickman has testified that DPH told her that she had to fill out a specific DPH form prior to taking medical leave; that DPH promised to send the required form to Hickman; and that despite a series of requests between January 2005 and November 2005, DPH repeatedly failed to provide her the forms. Thus, there are genuine material questions of fact and summary judgment on Plaintiffs FMLA interference claim is denied. 2. Retaliation for Requesting or Using FMLA Leave The FMLA makes it unlawful for an employer to discharge an employee for exercising or seeking to exercise the benefits conferred by the FMLA. 29 U.S.C. § 2615(a)(2). To establish a prima facie case for retaliation under the FMLA, Hickman must demonstrate that (1) she is protected under the FMLA; (2) she suffered an adverse employment decision; and (3) either (a) she was treated less favorably than an employee who had not requested FMLA leave, or (b) the adverse employment decision was made because of her request for FMLA leave. Bocalbos, 162 F.3d at 383. If Hickman establishes a prima facie case, the burden shifts to DPH to articulate a legitimate, non-retaliatory reason for terminating Hickman. Id. If DPH does so, the burden shifts back to Hickman to establish, by a preponderance of the evidence, that the articulated reason is a pretext for retaliation. Id. a. Prima Facie Case Protected under the FMLA. The first issue here is whether Hickman was protected under the FMLA. The employee must demonstrate that (a) she is suffering from a qualifying condition, and (b) she provided her employer with adequate notice of her intention to take FMLA leave. An employee is entitled to FMLA leave for inter alia a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D) (2006). A “serious health condition” is further defined as an “illness, injury, impairment, or physical or mental condition that involves” inpatient care (i.e., an overnight stay) in a medical care facility or continuing treatment by a health care provider. 29 C.F.R. § 825.114(a) (2006). Hickman did not receive inpatient care, and relies on the “continuing treatment” alternative. The regulations enumerate five different definitions of “serious health conditions” involving “continuing treatment.” The only one relevant in this case is: “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” Id. § 825.114(a) (2) (iii). Such a chronic health condition requires the employee to make periodic visits for treatment and must continue over an extended period of time; however, it may cause episodic periods, rather than a continuing period, of incapacity (e.g., asthma, diabetes, and epilepsy). Id. The legislative history of the FMLA suggests that Congress sought to distinguish short-term conditions that would generally be covered under sick leave policies from more severe health conditions that would be covered under the FMLA. See 58 Fed.Reg. 31,799 (1993) (“Congressional reports indicate that this term is not intended to cover short-term conditions for which treatment and recovery are very brief, since such conditions would generally be covered by employers’ sick leave policies”). One district court found that rectal bleeding “falls short of the sort of chronic serious health problems such as diabetes and epilepsy within the purview of the FMLA.” See Bauer v. Dayton-Walther Corp., 910 F.Supp. 306 (E.D.Ky.1996). Hickman has presented records of Dr. Ayub Hussain indicating that she returned for follow-up examinations/treatments at least four times subsequent to the December 2005 treatment. Construing the medical and other evidence in the light most favorable to Plaintiff, the Court concludes that there is a genuine fact issue regarding whether, at the time Hickman ceased employment at DPH, she was suffering from a serious health condition involving continuing treatment. While this FMLA issue is an extremely close question, this issue is better resolved at trial. Assuming arguendo that Hickman was suffering from a qualifying serious health condition, the second step of the inquiry is whether she provided DPH with adequate notice of her intention to take FMLA leave. The FMLA distinguishes between “foreseeable” and “unforeseeable” leave. See 29 U.S.C. § 2612(e)(2)(B). Hickman testified that she did not foresee needing emergency medical procedures on her last day in the office, December 12, 2005. Defendant does not proffer persuasive evidence that the treatment Plaintiff received on December 15 and 16 was foreseeable. Plaintiff thus raises a fact issue that her leave was unforeseen. The FMLA notice requirement for unforeseeable leave is that an employee must give notice to her employer “as soon as practicable under the facts and circumstances of the particular ease.” Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840, 842 (5th Cir.2007); see also 29 C.F.R. § 825.302. Nevertheless, the Fifth Circuit has held that the FMLA requires an employee seeking unforeseeable leave to provide enough information “sufficient to reasonably apprise [the employer] of the employee’s request to take time off for a serious health condition.” Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 977 (5th Cir.1998), cert. denied, 525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998) (quoting Manuel, 66 F.3d at 764). “While an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant.” Id. at 980 (quoting Johnson v. Primerica, 1996 WL 34148, at *5 (S.D.N.Y. Jan.30, 1996)). An employee is not required to expressly invoke the FMLA. Greenwell, 486 F.3d at 842; Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir.1995). Determining whether an employee properly notified an employer of her desire to take FMLA leave necessarily involves a factual inquiry. The Fifth Circuit has stated that “[w]e decline to announce any categorical rules for the content of the notice by an employee.” Id. Rather, the issue of notice is a fact issue that normally should be left to a jury. Satterfield, 135 F.3d at 977. This does not mean, however, that summary judgment is “not an available means for resolving FMLA notice questions.” Id. Hickman notified Ruth Dillon, a part-time sales associate, on December 14, 2005, that she was “experiencing bleeding and stomach pains,” and asked Dillon to “fill in for her during her emergency procedures.” Dillon testified that, while performing Hickman’s duties at the office, she “informed Ms. Fusco that [she] was filling in for Pamela Miles Hickman [sic] who was having emergency medical procedures.” Dillon also testified that on December 16, 2005, Fusco came to the Crigh-ton Ridge office and “began to ask [Dillon] many questions about when [she] first became aware of Ms. Miles-Hickman’s need for emergency surgery or emergency procedures or for medical care.” DPH’s FMLA duty to inquire was triggered when Fusco, the Human Resources Director, had this conversation with Dillon. At this time, DPH was on notice that Hickman may have been requesting, or would shortly thereafter request, FMLA leave. Plaintiff has raised a genuine fact issue on the adequacy and timeliness of the notice given to Defendant of the need for FMLA leave. Adverse Employment Decision. As discussed above, there is a genuine fact issue whether Hickman suffered an adverse employment decision. Therefore, Hickman has satisfied her burden on the second prong of the FMLA retaliation pri-ma facie case. Treated Less Favorably or Causal Connection. Turning to the third prong of the FMLA retaliation prima facie case, a plaintiff must