The opinion of the court was delivered by: Gregory L. Frost United States District Judge
This matter comes before the Court for consideration of a motion for summary judgment (Doc. # 29) filed by Defendant Total Image Specialists, Inc. ("Defendant"), a memorandum in opposition (Doc. # 32) filed by Plaintiff Claude Maynard ("Plaintiff"), and a reply. (Doc. # 33). For the reasons that follow, this Court denies Defendant's motion. (Doc. # 29.)
Defendant is an Ohio corporation that manufactures and fabricates large dimensional sign facings, which are molded of plastic, for retailers. Plaintiff worked for Defendant or its predecessor for over 20 years.*fn1 Plaintiff worked as a Maintenance Lead Man. He was responsible for overseeing maintenance of the company building and equipment. His supervisor was Verlin Varney ("Supervisor Varney"), currently the Shop Foreman.
At the time relevant to the litigation, Defendant offered disability benefits to its employees through Total Image Specialists, Inc. Employee Health & Welfare Benefit Plan. By virtue of his employment, Plaintiff participated in the plan.
The Sheet Metal Workers' Union Local No. 287 ("Union") represented Plaintiff and other employees of Defendant. The collective bargaining agreement ("CBA") in effect between the Union and Defendant in 2003 contained the following provisions in pertinent part regarding Defendant's absentee policy:
Employees are required to notify their supervisors as soon as they are aware that they cannot work the scheduled hours so that the supervisor can make alternative arrangements. Failure to notify their supervisor during the first two, (2) hours of their scheduled shift will result in an additional occurrence. . . . Failure to call-in for three, (3) consecutive days of absence will result in automatic termination. It is assumed in this case that the Employee has voluntarily quit.
For approximately ten-years prior to 2003, Plaintiff had seen various doctors due to his chronic kidney pain, kidney stones, and hematuria. Plaintiff alleges that he was diagnosed with loin pain hematuria syndrome. Defendant, in contrast, claims that Doctors entertained a diagnosis of this condition, but did not formally diagnosis Plaintiff. On numerous occasions, Plaintiff provided Defendant with doctor's notes stating that he would need to be absent intermittently due to his physical condition. Throughout the years, Defendant accommodated Plaintiff's periodic absences without any complaints from Plaintiff of unfair treatment.
As early as February 2003, Plaintiff began to also have problems with a lump that had developed in his left breast. That month, Plaintiff saw his family physician, Dr. Bright, for his left breast lump. In April 2003, Plaintiff had a mammogram.
In early 2003, Steve Brann, Vice President of Operations for Defendant, met with several Union representatives at a Union-Management meeting. At that meeting, they discussed that Plaintiff was not following the proper procedures to report his absences.*fn2
Subsequently, in April 2003, Supervisor Varney and Mr. Brann warned Plaintiff to follow proper CBA procedures and report absences directly to Supervisor Varney. Plaintiff then correctly reported his absences on April 24, 25, and 28, 2003 by calling Supervisor Varney directly or having a relative do so. Plaintiff also provided Defendant with a doctor's note dated May 7, 2003 stating that he might have to miss work for chronic flank pain.
Plaintiff testified that by Friday May 16, 2003 the lump in Plaintiff's left breast had become so swollen and tender that it was difficult for Plaintiff to wear a shirt or move his upper extremities without pain. As a result, Plaintiff believed that he was unable to work.*fn3 That day, Plaintiff notified Supervisor Varney via voice-mail of the following: his medical condition, his need to be off work, and that he might be required to have surgery.
On Monday May 19, 2003 Plaintiff called into work and spoke with Geraldine Frye ("Frye"), in human resources. Plaintiff asked Frye to pass the message on to Supervisor Varney that he would be out for a period of time. Moreover, Plaintiff requested from Frye disability paperwork. Also, on May 19, 2003 Plaintiff saw Dr. Bright. Dr. Bright recommended that Plaintiff see a surgeon.*fn4
Plaintiff received disability paperwork from Frye the following day. Plaintiff, however, never spoke to directly to Supervisor Varney on May 19 and 20, 2003. There remains a factual dispute over whether and when Plaintiff contacted Supervisor Varney on May 21, 2003. Plaintiff contends that he called Supervisor Varney when he learned from his nephew that Defendant had allegedly terminated him for his failure to report his absences for three days in a row. Defendant argues that even if Plaintiff spoke to Supervisor Varney on May 21, 2003 it was not within two hours of the start of his scheduled shift, and therefore his call was too late. Defendant contends that it already had properly terminated Plaintiff pursuant to the CBA absentee provision at the time of the May 21, 2003 conversation.
On June 9, 2003 Defendant informed Plaintiff that the disability forms that he had completed and returned to the company would not be processed because of his termination of employment effective May 23, 2003. After being terminated, Plaintiff filed a grievance claim through the Union requesting his job back if his doctor approved of him going back to work. On June 9, 2003 his grievance was denied.
Plaintiff in the present action claims that Defendant violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2611 et seq, when Defendant allegedly retaliated against him for invoking his rights under the FMLA. Furthermore, Plaintiff alleges that Defendant interfered with his rights to disability benefits under § 510 of Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140. Plaintiff seeks the following relief: back pay, reinstatement*fn5 , restoration of benefits, including but not limited to disability benefits, front pay, and other equitable relief; interest pursuant to 29 U.S.C. § 2617(a)(1)(A)(ii); liquidated damages pursuant to 29 U.S.C. § 2617(a)(1)(A)(iii); at least $25,000 in compensatory ...