Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MARK W. BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION..........................................................971 A. Factual Background...................................................971 B. Procedural Background................................................974 II. LEGAL ANALYSIS........................................................977 A. Standards For Summary Judgment.....................................977 B. Johnson’s FMLA Claims...............................................979 1. Arguments of the parties ...........................................979 a. The defendants’ opening arguments..............................979 b. Johnson’s response.............................................980 c. The defendants’ reply...........................................982 2. Analysis ..........................................................982 a. FMLA overview................................................982 b. FMLA “interference” claims....................................983 i. Nature and proof..........................................983 ii. Johnson’s “interference” claims............................985 c. FMLA “retaliation” claim......................................987 i. Nature and proof..........................................987 ii. Johnson’s “retaliation” claim...............•...............994 C. Johnson’s Workers Compensation Retaliation Claim......................996 1. Arguments of the parties ...........................................996 2. Analysis ..........................................................997 a. Individual liability.............................................997 b. Proof of the claim..............................................998 D. Johnson’s Emotional Distress Claim...................................1000 E. Johnson’s Claim For Payment Of A Bonus..............................1001 1. Arguments of the parties ..........................................1001 2. Analysis .........................................................1001 III. CONCLUSION...........................................................1003 In this action, which was removed to this federal court, a former store manager alleges that the retail store chain for which he worked and his district manager terminated him when he missed work for five days approximately five months after he suffered a heart attack. He asserts state-law claims of retaliation for processing workers compensation claims and intentional infliction of emotional distress and a federal claim of violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2612-2615, arising from the termination of his employment. He also asserts a claim pursuant to the Iowa Wage Payment Collection Law (IWPCL), Iowa Code Ch. 91A, to recover a quarterly bonus allegedly due him at the time his employment ended. The store chain and the district manager have moved for summary judgment on all of the former store manager’s claims. They argue, among other things, that there is no genuine dispute that the store manager resigned his job without coercion from his employers; that he did not suffer from a “serious health condition” and cannot meet other requirements of his FMLA claims; that he did not engage in any protected activity related to workers compensation claims and was not subjected to any adverse employment action if he did; that his “emotional distress” claim is pre-empted by Iowa’s workers compensation law; and that he was not entitled to any bonus, because he was not employed on the date of the bonus payout. Although the former store manager concedes that his “emotional distress” claim is not viable, he resists summary judgment on his other claims. Thus, I must determine whether any of the former store manager’s three disputed claims should be heard by a jury. I. INTRODUCTION A. Factual Background I set forth here only those facts, disputed and undisputed, sufficient to put in context the parties’ arguments concerning the defendants’ motion for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis. Defendant Dolgencorp, L.L.C., is a corporation that operates a chain of retail stores under the trade name “Dollar General.” The plaintiff and the defendants have referred to the corporate defendant as “Dollar General,” and I will do the-same. Dollar General hired plaintiff Todd Johnson in December 2007 and, after an initial period of training, assigned him to be the manager of the Dollar General store in Garner, Iowa, beginning in January 2008. Store managers report to a district manager or DM. Johnson’s DM from June 2008 until the end of Johnson’s employment with Dollar General was defendant Michael Williams. Johnson received an employee handbook outlining Dollar General’s FMLA' policy, received additional training on that policy, and was aware of posters in his store that addressed FMLA policies and issues. Dollar General’s vacation policy generally required scheduling of vacations 30 days in advance, with exceptions allowed by the DM. Dollar General’s attendance and absence policies required an employee to call the employee’s supervisor if the employee could not report to work as scheduled and also provided that store managers were expected to discuss the situation “live” with a supervisor. Dollar General did not provide “sick leave.” In addition to regular compensation, Dollar General maintained a “Teamshare” bonus plan under its Retail Incentive Plan, which provided quarterly bonuses to eligible store managers. The eligibility requirements for such a bonus were, in pertinent part, that the store manager was “[ajctively employed in an eligible position during the fiscal year” and “[ejmployed with Dollar General through the bonus calculation period and on the date of bonus payout ... [ujnless otherwise required by state law.” Defendants’ Appendix at 50 (Fiscal Year 2009 Store Manager Retail Incentive Plan). Johnson suffered a knee injury at work in October 2008, which caused him to miss a few days of work. Johnson received workers compensation benefits for that injury. Although Dollar General asserts that Johnson had no communications with Williams about the October 2008 workers compensation claim, and Johnson does not allege any negative response to it by Williams, Johnson asserts that Williams was aware of this injury, because Williams told Johnson he was aware that a workers compensation claim had been filed. On or about November 18, 2008, Johnson suffered a heart attack at work and was hospitalized for approximately a week. Johnson contacted Dollar General’s corporate offices to report his heart attack and the need for medical leave. Johnson’s medical providers did not clear him to return to work until December 30, 2008. Dollar General provided “company” leave for the entire period of Johnson’s absence owing to his heart attack, because Johnson was not yet eligible for FMLA leave. Medical records from December 18, 2008, indicate that Johnson was diagnosed with “severe coronary artery disease,” and other records indicate that he continued on various medications for that condition at least through 2009. Johnson filed a workers compensation claim alleging that his heart attack-was the result of work-related stress. The parties agree that Williams did not know- that Johnson had claimed that this heart attack was a work-related injury. The parties’ statements of fact and cited portions of the record do not indicate whether Johnson received workers compensation benefits, as well as company leave, for the November 2008 heart attack and recovery period. In January 2009, after Johnson returned to work, Williams provided him with a performance evaluation that assigned him an overall rating of “good.” Nevertheless, Johnson contends that Williams treated him differently from other store managers after he returned to work. Specifically, Johnson contends that Williams pressured him to get his store back to “model store” status in a short period of time, without providing him with extra payroll to do so. He contrasts this treatment with that of another store manager, “Penny,” who was allowed extra payroll to meet “model store” status and to get ready for district manager meetings. Johnson admits that his store was not returned to “model store” status within 48 hours after his return from leave, but he also admits that he did not ask either Williams or the regional manager for extra payroll to bring his store back to “model store” conditions and that he was not disciplined or subjected to any other adverse employment action because he failed to return the store to “model store” status. The parties dispute the various details of what happened from April 30, 2009, through May 6, 2009, at the end of Johnson’s employment with Dollar General. For purposes of summary judgment, however, they agree that Johnson was not feeling well on the morning of April 30, 2009, because he was suffering from flu-like symptoms. Johnson worked until about noon, when his assistant manager, Lesa Eckert, came in to work. Johnson told Eckert that he was not feeling well and was going home. Although Johnson testified in deposition that he believed that he had contacted his doctor’s office more than once on April 30 and May 1, 2009, the only medical record in the summary judgment record from about this time period is the following note in the records of Mercy Family Clinic-Clear Lake, from a call taken by a medical assistant at 11:37 a.m. on May 1, 2009: Phone call from Todd c/o “not feeling well for a couple of days.” He states he has had diarrhea, fever and extreme fatigue that is worse with standing. He wonders what to do. Due to his previous history Dr Mixdorf was consulted and these were the same symptoms he presented with when he had his MI [myocardial infarction (heart attack)]. He was advised that he needed to be evaluated in the ER. The patient refuses this stating, “I know for a fact that it isn’t [sic] the flu, I was exposed to this by my co-workers and my sig. Other. It is not a heart attack.” He was then advised that he should be evaluated in the office by the call doctor. He refuses appt but states, “I’ll see how I feel and if I feel like I need to be seen, I’ll call.” Denise, Dr Bruntings nurse was informed. D. Alden, MA. Plaintiffs Appendix at 65. Johnson did not seek further medical attention for his symptoms. The parties dispute whether Johnson actually went in to work on May 1, 2009, or only telephoned his assistant manager, Lesa Eckert, that day. However, they agree that, at some point, Johnson spoke to Eckert and requested five days of vacation, the full amount of vacation that he had accrued at that time, because Dollar General did not have sick leave. Johnson claims that he planned to return to work sooner, if his condition improved, but admits that he did not convey that plan to anyone at Dollar General. Notwithstanding that Johnson had not actually seen a doctor and that, when he did speak to someone at his doctor’s office, he complained of different symptoms, the parties agree that Johnson left Williams a voice-mail on May 1, 2009, stating that he had been to the doctor owing to chest pains. Johnson also stated in the voicemail that the doctor had told him to stay home over the weekend to get some rest, although no such instruction appears in the medical assistant’s notes of Johnson’s call to his doctor’s office on May 1,2009. The parties agree that, also on May 1, 2009, Williams left voice messages for Johnson. Johnson asserts that there were approximately four or five such messages and that he believed that they were “threatening.” Johnson contends, and the defendants dispute, that the substance of Williams’s messages was that Johnson needed “to get his ass back in the store” and that Williams was not responsible for running Johnson’s store. Other than the conversation with Eckert on May 1, 2009, Johnson did not contact Williams or anyone else at Dollar General from May 1 through May 5, 2009. On May 5, 2009, between about 8:00 a.m. and 10:00 a.m., Williams left a voice message for Johnson, apparently while Johnson was sleeping. Johnson contends, and the.defendants dispute, that Williams told Johnson in that message that Johnson had half an hour to return his call, or Johnson would be terminated. Johnson did not call Williams until approximately 12:30 a.m. on May 6, 2009, when he left Williams the following voice-mail: Mike this is Todd. This has been a really tough decision for everybody, but due to a lot of extra stress, right now, I guess I don’t have any choice but to step aside and let somebody else in, um, there is just too many health reasons to keep going at this point, I’ve been really sick for the last few days and at this point, I think I just need to step aside for medical reasons. Sorry I haven’t been returning your calls, not been feeling very well, we’ll make sure you get your keys, the only thing I think I have at the store is probably a radio that Josh can pick up. At this point I don’t see any choice but to step aside for medical reasons, I wish it could have turned out different. Have a good night, talk to you soon. Defendants’ Appendix at 31 (Johnson Deposition Exhibit 13). The parties agree that Johnson “resigned” on May 6, 2009, but Johnson now contends that his resignation was a “constructive discharge.” Dollar General did not pay Johnson a quarterly bonus payment that Johnson claims he was entitled to at the end of his employment. Dollar General contends that the pertinent fiscal quarter ended May 1, 2009, and that the bonus payout date for the quarter was June 5, 2009, but Johnson was not employed with Dollar General on the bonus payout date, so he was not eligible for the bonus. Johnson contends that state law required payment of the bonus, notwithstanding that he was not employed on the bonus payout date. B. Procedural Background Johnson originally filed this action in the Iowa District Court for Hancock County on July 22, 2010, naming Dollar General, Dolgencorp, L.L.C., and Michael Williams as defendants. In his original state-court petition, Johnson asserted state-law claims of retaliation for processing workers’ compensation claims and intentional infliction of emotional distress, arising from his treatment after his heart attack and at the end of his employment, and violation of the Iowa Wage Payment Collection Law, arising from failure to pay a quarterly bonus earned before the end of his employment. The defendants filed a joint answer to Johnson’s state-court petition on October 12, 2010, denying Johnson’s claims and asserting numerous affirmative defenses. Johnson also filed a concurrent action in this federal court on July 26, 2010, against the same defendants, asserting that he was terminated in May 2009 in violation of the FMLA and further claims that the defendants refused to offer Consolidated Omnibus Budget Reconciliation Act (COBRA) benefits to him at the end of his employment, in violation of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by COBRA. See, e.g., Johnson v. Dollar General, 778 F.Supp.2d 934 (N.D.Iowa 2011). However, on February 15, 2011, I dismissed all of Johnson’s claims in his first federal action, without prejudice, on the defendants’ Rule 12(b)(6) motion to dismiss. Id. On July 12, 2011, Johnson sought, and on July 22, 2011, the state court granted, leave to amend his state-court petition to add an FMLA claim. On August 10, 2011, on the basis of the addition of that federal claim to the lawsuit, the defendants removed this action to this federal court. See Defendants’ Notice Of Removal (docket no. 2). On August 11, 2011, Johnson’s Amended Petition And Jury Demand, now properly styled an Amended Complaint, were refilled in this action as docket no. 3. Because the claims in Johnson’s Amended Complaint are now before me on a motion for summary judgment, I will describe them in more detail. The first three “counts” of Johnson’s Amended Complaint assert state-law claims. Count I is a claim of retaliation for processing workers compensation claims, against both Dollar General and Williams, repleading by reference prior paragraphs of the Amended Complaint, and alleging that Johnson was pursuing workers compensation claims with the defendants at the time of his termination, that he was willfully terminated in the midst of a dispute concerning the workers compensation claims and his medical condition at the time of termination, and that he was terminated, in part, owing to the making and pursuing of workers compensation claims. Count II is a claim of intentional infliction of emotional distress, again against both defendants, repleading by reference prior paragraphs of the Amended Complaint, and alleging that the actions of the defendants were reckless, willful, and wanton, outrageous, done intentionally to cause emotional distress or were with reckless disregard of the probability of causing emotional distress, and had proximately caused Johnson severe or extreme emotional distress. Count III is a claim pursuant to the Iowa Wage Payment Collection Law, again against both defendants, repleading by reference prior paragraphs of the Amended Complaint, and alleging that the defendants knowingly, willfully, and wantonly refused to pay, upon demand, a bonus that was rightfully earned as of May 1, 2009. On each of these first three claims, Johnson seeks compensatory and punitive damages, interest allowed by law, costs of the action, and such other and further relief as may be just in the circumstances. Count IV of Johnson’s Amended Complaint sets forth a federal claim alleging violations of the FMLA, 29 U.S.C. §§ 2612-2615, against both defendants. It repleads by reference prior paragraphs of the Amended Complaint, and alleges that Johnson took leave from his employment owing to a serious medical condition, that he was entitled to the protections of the FMLA, and that’ the defendants violated the FMLA in the following ways: (a) in failing to give appropriate notices as to FMLA rights; (b) in failing to grant him his FMLA leave; (c) in retaliating against him for having exercised his FMLA rights; (d) in discriminating against him for having utilized his FMLA rights; and (e) by using a pretext solely to justify terminating him. It also alleges that the conduct of the defendants was willful. On this claim, Johnson seeks the following relief: Judgment that the defendants’ conduct violated 29 U.S.C. §§ 2612-2615 of the FMLA; an injunction pursuant to 29 U.S.C. § 2617(1)(B) directing the defendants (a) to rehire Johnson to his prior position, (b) to place Johnson on FMLA leave as required by statute, and (c) to reinstate Johnson to all of his employment benefits, including, but not limited to, health insurance, all retroactive to May 5, 2009; judgment for lost wages, salary, employment benefits, or other compensation; judgment for other “monetary losses” resulting from his discharge, including any and all emotional distress damages; judgment for reasonable attorney fees and costs; judgment for liquidated damages; and judgment for such further and additional relief, including back pay, loss of future pay, and/or front pay, as the court may deem just and proper. Although the defendants removed this action to this court on the basis of Johnson’s FMLA claim, the record in federal court did not show that they ever filed an answer to the Amended Complaint in either state or federal court, nor did their Scheduling Order and Discovery Plan (docket no. 10), approved by the court on November 18, 2011, provide a deadline for any answer. The Scheduling Order did, however, provide for a dispositive motion deadline of April 30, 2012, and a trial ready date of September 4, 2012. An Order Setting Trial, Final Pretrial Conference, And Requirements For Final Pretrial Order (docket no. 11) was filed on November 30, 2011, setting trial in this matter for September 24, 2012. On March 23, 2012, the parties filed Stipulations About Discovery Obtained Prior To Removal (docket no. 13), but there was no stipulation adopting the defendants’ answer to Johnson’s FMLA claim in his pri- or, dismissed federal action or stipulating that no answer was required. Eventually, on April 30, 2012, the defendants filed their Motion For Summary Judgment (docket no. 14) now before the court. As noted above, the defendants seek summary judgment on all of Johnson’s claims in his Amended Complaint. After an extension of time to do so, Johnson filed his Resistance To Motion For Summary Judgment (docket no. 18) on May 31, 2012, and on June 11, 2012, the defendants filed their Reply (docket no. 22) in further support of their Motion For Summary Judgment. No party requested oral arguments on the defendants’ Motion For Summary Judgment in the manner required by applicable local rules. Nevertheless, by Order (docket no. 24), filed July 11, 2012, I set oral arguments on the defendants’ Motion For Summary Judgment for July 19, 2012. .At the oral arguments, Johnson was represented by Eric Michael Updegraff of Stoltze & Updegraff, P.C., in Des Moines, Iowa. The defendants were represented by Ellen L. Perlioni and Jason R. Elliott of Morgan, Lewis & Bockius, L.L.P., in Dallas, Texas. At the oral arguments, I questioned the defendants about the absence of any answer to the Amended Complaint in the federal court records. The defendants asserted that they had filed an answer to the Amended Complaint on or about August 1, 2011. On July 19, 2012, the defendants emailed me a copy of their Answer To Plaintiffs Amended Petition, filed in state court on August 3, 2011, and on July 20, 2012, the defendants filed their Unopposed Motion For Leave To Supplement Notice Of Removal (docket no. 26), seeking leave to supplement the pleadings with their Answer To Plaintiffs Amended Petition. The defendants were granted leave to supplement the pleadings by Order (docket no. 27), filed July 23, 2012, and their Answer To Plaintiffs Amended Petition was filed in this case as docket no. 28 on July 23, 2012. The defendants’ Motion For Summary Judgment is now fully submitted. II. LEGAL ANALYSIS A. Standards For Summary Judgment Motions for summary judgment essentially “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 .(1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses... .”). Summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”). A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, “the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving party’ on the question,” Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on “whether a reasonable jury could return a verdict for the non-moving party based on the evidence”). Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue,” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating. that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (“[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate “specific facts showing that there is a genuine issue for trial.” Fed. R.CrvP. 56(e); Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik v. County ofLe Sueur, 47 F.3d 953, 957 (8th Cir.1995))). As the Eighth Circuit Court of Appeals has explained, “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.’ ” Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations- omitted). .“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts,” and must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “ ‘Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ ” Ricci, 129 S.Ct. at 2677, quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir.2011) (en banc). In its en banc decision in Torgerson, the Eighth Circuit Court of Appeals expressly rejected the notion that summary judgment in employment discrimination cases is considered under a separate standard, citing Reeves and Celotex. Instead, the court held as follows: Because summary judgment is not disfavored and is designed for “every action,” panel statements to the contrary are unauthorized and should not be followed. There is no “discrimination case exception” to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial. Torgerson, 643 F.3d at 1043. Therefore, I will consider the defendants’ Motion For Summary Judgment in this employment discrimination case according to the same standards that I would apply in any other civil case. However, I must first observe that stating the legal principles of summary judgment in employment discrimination eases is a simple task. Applying those principles to the paper record that forms the judicial crucible that decides which plaintiffs may proceed to trial and which get dismissed is far more daunting. Missing in the standard incantation of summary judgment principles is the role of experience. Justice Oliver Wendell Holmes wrote, “The life of the law has not been logic; it has been experience.” Oliver Wendell Holmes, The Common Law 1 (1881). Thus, experience teaches that thoughtful deliberation of summary judgment in employment discrimination cases is grounded in the consideration of each case through a lens filtered by the following observations. Employment discrimination and retaliation, except in the rarest cases, are difficult to prove. They are perhaps more difficult to prove today — more than forty years after the passage of Title VII and the ADEA, more than twenty years after the passage of the ADA, and nearly two decades after the passage of the FMLA, which is at issue here — than during the earlier evolution of these anti-discrimination and anti-retaliation statutes. Today’s employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed . trail demonstrating it. See, e.g., Riordan v. Kempiners, 831 F.2d 690, 697-98 (7th Cir.1987). Indeed, the Fifth Circuit Court of Appeals recognized more than thirty-five years ago, that “[a]s patently discriminatory practices become outlawed, those employers bent on pursuing a general policy declared illegal by Congressional mandate will undoubtedly devise more sophisticated methods to perpetuate discrimination among employees.” Rogers v. EEOC, 454 F.2d 234, 239 (5th Cir.1971) (later relied on by the Supreme Court in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), as one of the principal authorities supporting recognition of a cause of action for hostile environment sexual harassment under Title VII). My experience suggests the truth of that observation. Because adverse employment actions almost always involve a high degree of discretion, and most plaintiffs in employment discrimination and retaliation cases are at will, it is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge. This is especially true, because the very best workers are seldom employment discrimination and retaliation plaintiffs due to sheer economics: Because the economic costs to the employer for discrimination or retaliation are proportional to the caliber of the employee, discrimination or retaliation against the best employees is the least cost effective. See, e.g., id. Rather, discrimination and retaliation plaintiffs tend to be those average or below-average workers — equally protected by Title VII, the ADA, the ADEA, or the FMLA — for whom plausible rationales for adverse employment actions are readily fabricated by employers with even a meager imagination. See, e.g., id. Consequently, I turn to consideration of the parties’ arguments for and against summary judgment with both the legal standards for summary-judgment and the teachings of-experience in mind. B. Johnson’s FMLA Claims The parties have focused, in the first instance and in, the greatest detail, on the sufficiency of Johnson’s only federal claim, his claim of violations of the FMLA in Count IV of his Amended Complaint. Therefore, I will consider first the part of the defendants’ Motion For Summary Judgment seeking summary judgment on that claim. 1. Arguments of the parties a. The defendants’ opening arguments The defendants argue, in-essence, that, after re-asserting the same set of facts and cause of action in state court that I had dismissed in Johnson’s first federal action, and despite ample opportunity for discovery, Johnson has still not buttressed his FMLA claim with evidence of material facts that would allow that claim to survive summary judgment. They make a four-pronged attack on this claim. First, the defendants argue that Johnson did not qualify for FMLA leave, based on personal illness, because he lacked a “serious ■ health condition.” They argue that, although Johnson left work “ill” on April 30, 2009, he never obtained “treatment” from a physician, but only spoke with a medical assistant at his doctor’s office, so that he clearly did not require “inpatient care,” one alternative to show a “serious health condition.” They also argue that he did not receive “continuing treatment,” another alternative to show a “serious health condition,” because he did not have even one in-person treatment with a healthcare provider. Second, the defendants argue that they had no notice of Johnson’s need for FMLA leave, where Johnson did little or nothing more than “call in sick.” They argue that it is clear - that. Johnson never gave his employer sufficient cause to believe that he required FMLA leave. Although they acknowledge that Johnson’s only voicemail to Williams, on May 1, 2009, might have left Williams wondering about Johnson’s condition, which was presumably why Williams kept calling Johnson, that single voicemail was not enough to suggest a need for FMLA leave, particularly where Johnson admits that he ignored further calls seeking information about his condition. They also point out that Johnson did not follow the procedures in Dollar General’s FMLA policy for providing notice of a need for FMLA leave in April or May of 2009, even though Johnson had done so concerning his heart attack in November 2008. They also assert, in passing, that they could not have retaliated against Johnson for something he never did, which was try to exercise rights under the FMLA. Third, the defendants contend that Johnson resigned, so he cannot establish that he was subjected to any “adverse employment action,” which defeats his claim of “retaliation” under the FMLA. The defendants argue that, prior to May 6, 2009, when Johnson left his resignation voicemail for Williams, nobody at Dollar General had made a decision to terminate him or communicated to him that his employment was terminated. They point out that Williams disputes that he ever gave Johnson a half-hour deadline to respond to his voicemails, or Johnson would be fired. Even if Williams had left such a voicemail, however, they argue that a mere threat of termination is not itself a termination or adverse employment action. Finally, the defendants argue that there is simply no nexus between Williams’s actions and the FMLA. They argue that Johnson cannot rely on any supposed “attitude change” by Williams after Johnson returned to work after his November 2008 heart attack, because there is no dispute that the leave provided for that absence was “company” leave, not FMLA leave, when Johnson was not eligible for FMLA leave. They also argue that the lack of any request by Johnson for FMLA leave in April or May 2009 also shows the lack of any causal connection. They argue that Johnson relies on nothing but speculation to show a causal connection. b. Johnson’s response Johnson attempts to counter each of the defendants’ arguments for summary judgment on his FMLA claim. In doing so, he appears to focus almost entirely on the viability of his FMLA “retaliation” claim. First, Johnson argues that he did have a “serious health condition,” pointing to medical evidence that he suffered from a number of serious heart conditions at the time that he informed the defendants that he was missing work again owing to chest pains. Thus, he argues that, at that point, he had engaged in protected activity under the FMLA and he was entitled to the protections of the anti-retaliation provisions of the FMLA. Somewhat more specifically, he argues that the severe coronary artery disease from which he suffered from at least November 2008 onward constituted a “serious health condition” within the meaning of the FMLA. He points to evidence that his medication regimen for that condition continued through 2009. He also argues that the defendants’ intimation that his contact with his doctor’s office on May 1, 2009, was inconsequential, or even fictitious, is wrong, because he supplies the medical assistant’s notes on that call, which he argues show that he was advised to seek treatment in the emergency room or at least to be evaluated by the clinic’s on-call doctor. Thus, he argues that the defendants’ contention that his doctors did not consider his condition “serious” or worthy of inpatient care is simply erroneous and utterly lacking in any basis in the record. Johnson also argues that a “serious health condition” is not necessary to make out a retaliation claim under the FMLA. He argues that the defendants cannot avoid FMLA liability, simply because they terminated him before obtaining a full picture of his health situation. He argues that an employee who attempts to exercise FMLA rights is protected from retaliation, which plainly suggests that he was not required to show that his attempt would have been successful. He contends that the concept of “material adverse employment action” and the burden-shifting analysis of retaliation claims under Title VII have been applied in the FMLA context, so that a retaliatory action is a material adverse employment- action when it might have dissuaded a reasonable worker from making or supporting an FMLA claim. He argues that the retaliatory effect occurs, regardless of whether or not the claimant ultimately has a “serious health condition” under the FMLA. As to the defendants’ “notice” argument, Johnson argues that the circumstances present at the time of his phone call to Williams on May 1, 2009, were sufficient to make the defendants aware that he might need FMLA leave. This is so, he argues, because the defendants knew that Johnson told Williams he needed time off because of chest pains just months after he had suffered a heart attack at work that required six weeks of leave. As to the defendants’ argument that there was no “adverse employment action” sufficient to sustain his FMLA retaliation claim, because he resigned, Johnson argues that there are genuine issues of material fact as to whether Williams’s actions constituted a “constructive discharge.” He argues that a reasonable jury could find that Williams’s multiple, threatening voicemails would have discouraged a reasonable employee from making a request for FMLA leave. He argues that his failure to mention the FMLA specifically in his notice of a need for time off is not dispositive of the question of whether or not Williams would have known that he needed FMLA leave. He also argues that Williams’s repeated, hostile voicemails and threat of termination if he did not respond in thirty minutes were such that a reasonable employee would have found his situation intolerable and, thus, they raise- a reasonable inference of intent to force him to quit. Finally, Johnson argues that there is a nexus between protected activity and materially adverse employment action, because the record suggests that Williams was upset by Johnson’s need for leave. He argues that the court would be hard-pressed to find a more direct connection between the need for time off and Williams’s retaliatory conduct than Williams’s belligerent statements about Johnson needing time off. c. The defendants’ reply In reply, the defendants argue that Johnson cannot carry over his “serious health condition” from his heart attack in 2008 to every subsequent instance in which he missed work. They reiterate that the record shows that Johnson complained to the medical assistant at his doctor’s office on May 1, 2009, about “flu-like symptoms,” not “chest pains,” that he told the medical assistant that he was certain it was not a heart attack, and that he refused either emergency room treatment or an appointment with the on-call doctor at the practice. They point out that no in-person treatment or inpatient care ever occurred for his “condition” in late April and early May 2009 before Johnson resigned. They also argue that a vague reference to chest pains and the need to rest over the weekend (even if it had not been a false description of his symptoms and his conversation with his doctor’s office) is not enough to put an employer on notice of a need for FMLA leave, because it falls well short of an employee’s duty to indicate both the need and the reason for the leave. They also ai'gue that Williams sought more information about Johnson’s condition, but Johnson failed to meet his duty to respond. Finally, they point out that Johnson indicated to Williams that he needed to rest “over the weekend,” but then failed to appear for work on Monday, without providing any additional information about his condition or his need for a longer absence. The defendants also argue that eligibility for FMLA leave is a prerequisite for an FMLA retaliation claim, asserting that “[n]umerous other courts have uniformly held that a plaintiff cannot sustain a claim for FMLA retaliation without first showing an entitlement to FMLA leave,” and citing four federal district court cases. They also read Eighth Circuit law to recognize that an employee must “seek treatment” for a health condition that later proves to be “serious” to sustain an FMLA retaliation claim. Finally, the defendants argue that Johnson raises his theory that he was “constructively discharged” for the first time in response to their Motion For Summary Judgment, but that doing so is not enough to amend his pleading to include it. Even if such a contention had been properly raised, however, they argue that it would fail, because a few unreturned voicemails, left while the plaintiff was absent from work, cannot be considered working conditions, much less something so extraordinary and egregious as to be objectively intolerable. They also point out that Johnson plainly failed to give Dollar General any opportunity to resolve the problem, before jumping ship. 2. Analysis a. FMLA overview As the Eighth Circuit Court of Appeals has explained, The FMLA provides employees with twelve work-weeks of leave during any twelve-month period if they have a serious health condition that makes them unable to perform the functions of their position. 29 U.S.C. § 2612(a)(1)(D). The leave may be taken intermittently if there is an agreement with the employer. Id. § 2612(b)(1). Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.2012); accord Sisk v. Picture People, Inc., 669 F.3d 896, 899 (8th Cir.2012). In addition to creating a right to leave, the FMLA defines “prohibited acts” toward those who exercise or attempt to exercise FMLA rights or who oppose unlawful practices, including the following: (a) Interference with rights (1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. (2) Discrimination It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter. 29 U.S.C. § 2615(a). The Eighth Circuit Court of Appeals has held that § 2615(a) prohibits both “interference” with FMLA rights and “retaliation” for exercising FMLA rights. See, e.g., Ballato, 676 F.3d at 772; Chappell v. Bilco Co., 675 F.3d 1110, 1115 (8th Cir.2012); Lovland v. Employers Mut. Cas. Co., 674 F.3d 806, 810-11 (8th Cir.2012); Sisk, 669 F.3d at 899. Under Eighth Circuit law, these two kinds of claims are defined according to the “Stallings dichotomy.” See Lovland, 674 F.3d at 811 (citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1050-51 (8th Cir.2006)). Because Johnson appears to assert both kinds of FMLA claims, I will consider each kind in more detail. b. FMLA “interference” claims i. Nature and proof Using the “Stallings dichotomy,” “[i]n an interference claim ‘the employee alleges that an employer denied or interfered with his substantive rights under the FMLA.’ ” Chappell, 675 F.3d at 1115 (quoting Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.2008), in turn quoting Stallings, 447 F.3d at 1050); accord Ballato, 676 F.3d at 772 (“ ‘An employee can prevail under an interference theory if he was denied substantive rights under the FMLA for a reason connected with his FMLA leave.’ ” (quoting Stallings, 447 F.3d at 1050)). Such a claim is based on § 2615(a)(1), which makes it “ ‘unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].’ ” Ballato, 676 F.3d at 772 (quoting 29 U.S.C. § 2615(a)(1)). Under Eighth Circuit law, “interference” claims are “limited ... to situations where the employee proves that the employer denied a benefit to which she was entitled under the FMLA, which include terminating an employee while on FMLA leave.” Lovland, 674 F.3d at 811 (citing Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 675 (8th Cir.2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.2011) (en banc), in turn citing Stallings, 447 F.3d at 1050-51). “Interference” situations also include using the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or counting FMLA leave under a “no fault” attendance policy, Ballato, 676 F.3d at 772, and “ ‘manipulation by a covered employer to avoid responsibilities under [the] FMLA.’ ” Chappell, 675 F.3d at 1115 (quoting Stallings, 447 F.3d at 1050). “[W]hen the employee asserts a § 2615(a)(1) claim that a right prescribed by the FMLA has been denied, [the Eighth Circuit Court of Appeals has] held that the employer’s intent in denying the benefit is immaterial.” Lovland, 674 F.3d at 811. “The initial burden of proof in an FMLA interference case is on the employee to show only that he or she was entitled to the benefit denied.” Ballato, 676 F.3d at 772 (internal quotation marks omitted). However, FMLA benefits are contingent upon the employee having “a serious health condition that makes [him] unable to perform the functions of [his] position.” Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir.2011). Thus, to prove the requirement for an interference claim that the plaintiff was entitled to the benefit denied, the plaintiff must prove that he or she suffered from “a serious health condition.” Id.; see also Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 975 n. 2 (8th Cir.2005) (identifying the elements of an “interference” claim as including proof that the conditions from which the plaintiff suffered were “serious health conditions”); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir.2001) (“Where absences are not attributable to a ‘serious health condition,’ however, [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.”). The Eighth Circuit Court of Appeals has explained, In enacting the FMLA Congress did not intend to cover leave for “short-term conditions for which treatment and recovery are very brief.” See Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir.1997) (quoting S.Rep. No. 103-3, at 28 (1993), 1993 U.S.C.C.A.N. 3, 31). Only absences “attributable to ... serious health conditions” are protected. Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir.2002). Examples of conditions which would ordinarily not be covered include “the common cold, the flu, ear aches, upset stomach, minor ulcers, [and] headaches other than migraine.” 29 C.F.R. § 825.114(c) [now 29 C.F.R. § 825.113(d)]. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005); but see Rankin, 246 F.3d at 1147 (observing that “conditions like the common cold or the flu will not routinely satisfy the requirements of a ‘serious health condition,’ ” but that “absences resulting from such illnesses are protected under FMLA when the regulatory tests are met”). A serious health condition “ ‘means an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.’ ” Rynders, 650 F.3d at 1195-96 (quoting 29 U.S.C. § 2611(11)). Johnson does not contend that he can satisfy the “inpatient care” prong of this definition. Thus, I will consider only the “continuing treatment” prong in more detail. The “continuing treatment” prong is subject to an “objective test,” requiring the claimant to prove the following: “(1) that she had a ‘period of incapacity requiring absence from work,’ (2) that this period of incapacity exceeded three days, and (3) that she received ‘continuing treatment by ... a health care provider’ within the period.” Rankin, 246 F.3d at 1147-49 (quoting Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir.2000), and citing former 29 C.F.R. § 825.114(a), now 29 C.F.R. § 825.115(a)); see also Woods, 409 F.3d at 990. Furthermore, “treatment by a health care provider means an in-person visit to a health care provider,” and “[t]he first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.” 29 C.F.R. § 825.115(a)(3). Furthermore, the employee must show that he or she gave the employer adequate and timely notice of the need for FMLA leave. Chappell, 675 F.3d at 1116; Rynders, 650 F.3d at 1196 (“ ‘A claim [of interference] under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave ....’”) (quoting Woods, 409 F.3d at 991, and also citing Scobey v. Nucor Steel-Ark., 580 F.3d 781, 789-90 (8th Cir.2009)). “Adequate notice requires ‘enough information to put the employer on notice that the employee may need FMLA leave.’ ” Id. (quoting Rynders, 650 F.3d at 1196, in turn quoting Thorson, 205 F.3d at 381); Rynders, 650 F.3d at 1196. As the Eighth Circuit Court of Appeals has explained, The employee “need not invoke the FMLA by name in order to put an employer on notice.” [Thorson, 205 F.3d at 381]. “Our cases instruct that the adequacy of an employee’s notice requires consideration of the totality of the circumstances and is typically a jury question.” Murphy v. FedEx Nat’l LTL, Inc., 618 F.3d 893, 903 (8th Cir.2010) (citation omitted). Rynders, 650 F.3d at 1196. Not every routine visit to a doctor constitutes notice to an employer of a potential serious health condition, but knowledge of a “non-routine” visit related to a prior condition that indicated a need for additional time off covered by the FMLA may be sufficient to satisfy the notice requirement. Phillips, 547 F.3d at 910-11. “An employer may require that a request for leave is supported by certification from a health care provider.” Chappell, 675 F.3d at 1116 (citing 29 U.S.C. § 2613(a)). Although no showing of an employer’s “intent” is required, an “interference” claim is not a “strict liability” claim; rather, “an employer is not liable for interference if its adverse decision was unrelated to the employee’s use of FMLA leave.” See Lovland, 674 F.3d at 811; accord Ballato, 676 F.3d at 772 (“If there exists a showing of interference, the burden shifts to the employer to prove that there was a reason unrelated to the employee’s exercise of FMLA rights for terminating the employee.”). This is so, because ‘“[a]n employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.’ ” Ballato, 676 F.3d at 772 (quoting Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871 (8th Cir.2010)). For example, “[a] company may take action against an employee for violating the company call-in policy when the employee' is on FMLA leave.” Chappell, 675 F.3d at 1115. Thus, there is no “interference” with FMLA rights, if the negative consequences would attach to any absence, not just to absences covered under the FMLA. Id. ii. Johnson’s “interference” claims Among the violations of the FMLA that Johnson alleges, there are two that can reasonably be read to assert “interference” claims: (1) his claim that the defendants failed to give appropriate notices as to FMLA rights, and (2) his claim that the defendants failed to grant him his FMLA leave. See Amended Complaint, Count IV, ¶ 55(a)-(b) (specifying violations of the FMLA). These claims can reasonably be read to allege “ ‘manipulation by a covered employer to avoid responsibilities under [the] FMLA,’ ” Chappell, 675 F.3d at 1115 (quoting Stallings, 447 F.3d at 1050), and “den[ial] ... with his substantive rights under the FMLA,” id. at 1115 (quotation marks and citations omitted), respectively. I will consider these “interference” claims in turn. Johnson does not assert that genuine issues of material fact preclude summary judgment on the first “interference” claim, nor could he, where he now admits that he received an employee handbook outlining Dollar General’s FMLA policy, received additional training on that policy, and was aware of posters in his store that addressed FMLA policies and issues, and actually used appropriate means under Dollar General’s FMLA policy to notify Dollar General of his need for medical leave after his heart attack in November 2008. See Fed.R.CivP. 56(c) (summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law”); Woods, 409 F.3d at 990 (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”); see also Fed.R.CivP. 56(e) (the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate “specific facts showing that there is a genuine issue for trial”); Mosley, 415 F.3d at 910 (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik, 47 F.3d at 957)). Therefore, the defendants are entitled to summary judgment on this claim. Johnson’s second “interference” claim, alleging failure to grant Johnson his FMLA leave, requires more analysis. As the defendants assert, however, this claim founders on Johnson’s inability to generate any genuine issues of material fact that his absence at the end of April 2009 was for a “serious health condition.” Rynders, 650 F.3d at 1195 (FMLA benefits are contingent upon the employee having “a serious health condition that makes [him] unable to perform the functions of [his] position.”); Throneberry, 403 F.3d at 975 n. 2 (identifying the elements of an “interference” claim as including proof that the conditions from which the plaintiff suffered were “serious health conditions”); Rankin, 246 F.3d at 1147 (“Where absences are not attributable to a ‘serious health condition,’ however, [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.”). Johnson asserts that his “serious medical condition” was “severe coronary artery disease,” but he never asserts that he suffered from a “serious medical condition” on the basis of a “chronic condition,” as defined in 29 C.F.R. § 825.115(c); a “permanent or long-term condition,” as defined by 29 C.F.R. § 825.115(d); or a “condition requiring multiple treatments,” as defined by 29 C.F.R. § 825.115(e). See also Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 472-73 (8th Cir.2007) (discussing whether depression was a “serious medical condition” under the “chronic condition” regulation, then 29 C.F.R. § 825.114(a)(2)©). There is no showing here that there was any agreement with Dollar General for Johnson to take leave for his severe coronary artery disease on an intermittent basis. See Ballato, 676 F.3d at 772 (citing 29 U.S.C. § 2612(b)(1)). Even if Johnson suffered from coronary artery disease, not every routine visit Johnson made to a doctor nor every absence he took from work was an absence for a “serious health condition,” cf. Phillips, 547 F.3d at 910-11, if there is no showing that, at the time of the absence, it was coronary artery disease that made Johnson unable to perform his job. See Ballato, 676 F.3d at 772 (leave is required if the employee’s condition is both “a serious health condition” and it “makes them unable to perform the functions of their position” (citing 29 U.S.C. § 2612(a)(1)(D))). Furthermore, even assuming that Johnson’s absence beginning April 30, 2009, was because of coronary artery disease — a proposition for which there is scant evidence in the record, consisting only of the suggestion in the notes from Johnson’s call to his doctor’s office on May 1, 2009, that his “flu-like symptoms” were similar to those he suffered at the time of his heart attack in November 2008 — Johnson does not assert, and there is no indication in the record, that this absence required “inpatient care.” See Rynders, 650 F.3d at 1195-96 (explaining that a serious health condition “ ‘means an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.’ ” (quoting 29 U.S.C. § 2611(11))). Neither a trip to the emergency room nor an in-person visit with the on-call doctor — both of which Johnson’s doctor’s medical assistant urged when Johnson called his doctor’s office on May 1, 2009 — would have constituted “inpatient care,” and Johnson refused either kind of treatment. Johnson also cannot generate a genuine issue of material fact that the absence that began on April 30, 2009, required “continuing treatment.” Id. Applying the “objective test” for “continuing treatment,” even assuming that Johnson was “incapacitated” by his illness for more than three days, from April 30, 2009, until May 6, 2009, there is no evidence at all that he “received ‘continuing treatment by ... a health care provider’ within the period.” Rankin, 246 F.3d at 1147-49 (quoting Thorson, 205 F.3d at 377, and citing former 29 C.F.R. § 825.114(a), now 29 C.F.R. § 825.115(a)); see also Woods, 409 F.3d at 990. Although the record shows that Johnson contacted his doctor’s office on May 1, 2009, there is no evidence that he had any “in-person visit to a health care provider ... within seven days of the first day of incapacity,” on April 30, 2009. 29 C.F.R. § 825.115(a)(3). Again, Johnson’s assertion that the médieal assistant he spoke with on May 1, 2009, urged him to go to the emergency room or to see the on-call doctor at his' doctor’s office does not substitute for actually receiving “in-person” treatment, at leást where Johnson refused such treatment and was not precluded from taking advantage of it by some insuperable bar not of his own making. Because Johnson cannot generate a genuine issue of material fact that he actually suffered from a “serious health condition” that caused him to miss work from April 30, 2009, through May 6, 2009, his “interference” claim based on denial of FMLA leave for that absence fails as a matter of law. The defendants are entitled to summary judgment on this FMLA “interference” claim. c. FMLA “retaliation” claim. Johnson also asserts an FMLA “retaliation” claim or claims based on retaliation for exercising or attempting to exercise FMLA rights. Johnson’s FMLA “retaliation” claim or claims are more hotly contested than his “inter