UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

KIM GRADY, 

 Plaintiff, 

 v. 

SISTERS OF THE HOLY CROSS, INC., 

 Defendant. 

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Case No. 3:14-CV-1738 JD 

OPINION AND ORDER

This case arises under the Family and Medical Leave Act. The plaintiff, Kim Grady, went 

on FMLA leave for two weeks from her position as a beautician with the defendant, Sisters of 

the Holy Cross, Inc. Though Sisters later approved Ms. Grady’s request for FMLA leave, it 

assessed her attendance points because it claimed she did not return from her leave on the date 

she said she would. Those attendance points later contributed to Ms. Grady’s dismissal. Ms. 

Grady contends that she gave proper notice of her return date, and thus claims that Sisters 

interfered with her entitlement to FMLA leave by firing her based in part on that leave. Both 

parties have now moved for summary judgment in their favor on that claim. For the reasons that 

follow, the Court denies both parties’ motions. 

I. FACTUAL BACKGROUND 

Ms. Grady began working for Sisters in 1997, and was working full-time as a beautician 

during the time-period relevant to this action. On Monday, August 20, 2012, Ms. Grady left her 

shift early since she was not feeling well. Ms. Grady went to see her doctor, who diagnosed her 

with bipolar disorder and advised her to take time off of work while she became acclimated to 

her medications. Therefore, Ms. Grady called in sick each day for the remainder of the week. 

Pursuant to Sisters’ attendance policy, an employee must report any absences at least one and a 
2 

half hours prior to the beginning of their shift. A properly reported absence results in 5 

“attendance points,” the accumulation of which can result in discipline up to and including 

termination. If an employee calls to report their absence less than one and a half hours before 

their shift, they are assessed 10 attendance points. And if an employee fails to call to report their 

absence within an hour after their shift was scheduled to begin, it is considered a “no call/no 

show,” and the employee receives 15 attendance points. [DE 26-4]. Sisters also maintains an 

FMLA policy, which states that “when the need for medical leave is not known sufficiently in 

advance or medical conditions change unexpectedly, . . . the employee must give notice as soon 

as possible after the employee is aware that he or she needs to take FMLA leave.” [DE 26-5 p. 

3]. 

It is undisputed that Ms. Grady timely reported her absences during her first week of 

leave, thus complying with the notice aspects of Sisters’ attendance policy. After Ms. Grady 

called off on Friday, August 24, 2012, for her fourth absence in a row, Kathy Decker-Burrous, 

Ms. Grady’s supervisor, spoke to her. Ms. Decker-Burrous stated, “You’ve been gone, this is day 

four. Looks like it might be an F -- FMLA. You don’t have to keep calling in.” [DE 26-1 p. 11]. 

Ms. Decker-Burrous then spoke with Marty Sergeant, Sisters’ payroll and benefits manager, who 

completed an FMLA notice for Ms. Grady. Ms. Sergeant mailed that form to Ms. Grady, along 

with a health care provider certification form for Ms. Grady’s doctor to complete to confirm Ms. 

Grady’s entitlement to FMLA leave. 

The parties dispute what interactions took place between Ms. Grady and Sisters from that 

point until Ms. Grady’s return on Wednesday, September 5, 2012. According to Ms. DeckerBurrous, she spoke to Ms. Grady on Friday, August 31, 2012, to inquire as to when Ms. Grady 

would be returning to work. During that conversation, Ms. Grady made clear she would be 
3 

returning the following business day, on Tuesday, September 4, 2012. Darlene Allen, the other 

beautician employed at Sisters, also stated that she spoke to Ms. Grady on August 31, 2012, and 

that Ms. Grady said she was returning to work on September 4, 2012. Ms. Allen confirmed that 

understanding with Ms. Decker-Burrous, too. Accordingly, Ms. Allen set a number of 

appointments for Ms. Grady for that day. Ms. Grady denies those accounts, though. She testified 

that she told Ms. Decker-Burrous during their initial conversation that she would be absent for a 

couple of weeks, but that she never told anyone that she would be returning specifically on 

September 4. Ms. Grady also denied speaking to Ms. Decker-Burrous between their conversation 

on August 24, 2012, and her return to work on September 5, 2012. 

The parties agree, though, that Ms. Grady did not come to work on September 4, 2012, 

and that she did not call to report her absence on that date. Ms. Grady instead returned to work 

the following day, September 5, 2012. Her doctor also faxed the FMLA certification form to 

Sisters that afternoon, in which he indicated that Ms. Grady would need leave from August 21, 

2012 to September 5, 2012. Thereafter, on September 6, 2012, Ms. Sergeant completed an 

FMLA Designation Notice, which stated that Ms. Grady’s FMLA leave was approved, and that 

“[a]ll leave taken for this reason will be designated as FMLA leave.” [DE 26-3 p. 16–19; DE 26-

8]. However, Ms. Decker-Burrous decided to assess 10 attendance points for Ms. Grady’s failure 

to report her absence on September 4. Ms. Decker-Burrous explained that because a no call/no 

show typically receives 15 attendance points and a properly reported absence receives 5 points, 

she assessed the difference between those two amounts so as to account only for the lack of 

notice, not the absence itself, which was excused. 

Though those attendance points did not result in any immediate discipline, Ms. Grady 

subsequently accumulated additional points by arriving late on multiple occasions. When Ms. 
4 

Grady clocked in late on April 2, 2013, she reached the number of attendance points at which 

Sisters’ attendance policy called for terminating her employment. Accordingly, Sisters fired Ms. 

Grady later that month, citing her accumulation of attendance points as the reason. [DE 26-7]. 

Sisters admits that Ms. Grady’s firing was partially based on the 10 attendance points assessed 

for September 4, 2012. In response, Ms. Grady filed this action, in which she asserts a single 

count for FMLA interference, contending that her absence on September 4, 2012 was protected 

by the FMLA and that Sisters interfered with her entitlement to leave by assessing attendance 

points for that day. Discovery has now closed, and both parties have moved for summary 

judgment. 

II. STANDARD OF REVIEW 

On summary judgment, the moving party bears the burden of demonstrating that there “is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). A “material” fact is one identified by the substantive law as 

affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

“genuine issue” exists with respect to any material fact when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual 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, and summary judgment should be granted. Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 

U.S. 253, 289 (1968)). 

In determining whether a genuine issue of material fact exists, this Court must construe 

all facts in the light most favorable to the non-moving party and draw all reasonable and 

justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); 

King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party 
5 

cannot simply rest on the allegations or denials contained in its pleadings, but must present 

sufficient evidence to show the existence of each element of its case on which it will bear the 

burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Robin v. Espo Eng’g 

Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Finally, the fact that the parties have cross-filed for 

summary judgment does not change the standard of review; cross-motions are treated separately 

under the standards applicable to each. McKinney v. Cadleway Props., Inc., 548 F.3d 496, 504 

n.4 (7th Cir. 2008). 

III. DISCUSSION 

Ms. Grady presents a claim for interference under the FMLA. The FMLA offers various 

substantive entitlements, such as the right to take up to twelve weeks of leave in a one-year 

period, and the right to be reinstated to the same position upon returning from leave. E.g., 29 

U.S.C. §§ 2612(a)(1), 2614(a)(1). As a means of protecting those entitlements, the FMLA also 

prohibits employers from taking any action that would interfere with or restrain employees from 

invoking those entitlements. 29 U.S.C. § 2615(a)(1) (“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 [the FMLA].”). As applicable here, that means that “employers cannot use the taking of 

FMLA leave as a negative factor in employment actions, such as hiring, promotion or 

disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.” 29 

C.F.R. § 825.220(c). In order to make out a claim for FMLA interference, a plaintiff must 

establish five elements: (1) she was eligible for the FMLA’s protections; (2) her employer was 

covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient 

notice of her intent to take leave; and (5) her employer denied or interfered with FMLA benefits 

to which she was entitled. Preddie v. Bartholomew Consol. Sch. Corp., No. 14-3125, 2015 WL 

5005203, at *8 (7th Cir. Aug. 24, 2015). An interference claim typically does not require a 
6 

plaintiff to establish a discriminatory or retaliatory intent, but only to prove that “the employer 

denied the employee his or her entitlements under the Act.” Shaffer v. Am. Med. Ass’n, 662 F.3d 

439, 443 (7th Cir. 2011). 

Here, Ms. Grady argues that Sisters interfered with her rights under the FMLA by 

assessing attendance points for her absence on September 4, 2012. There is no dispute that Ms. 

Grady met the first three elements for an interference claim, as she was eligible for FMLA leave, 

Sisters is a covered employer, and Ms. Grady was entitled to leave under the FMLA. Further 

narrowing the scope of the inquiry, the parties also agree that Ms. Grady did not show up to work 

on September 4, 2012 and did not call in that day to report her absence; that Sisters assessed 10 

attendance points for Ms. Grady being a “no call/no show” on that day; and that those 10 

attendance points contributed to Sisters’ termination of Ms. Grady’s employment based on her 

accumulation of attendance points. Thus, the dispute boils down to whether Ms. Grady complied 

with the FMLA’s requirements for providing notice of her return date and whether Sisters 

violated any of Ms. Grady’s entitlements under the FMLA by assessing her attendance points for 

September 4. Since both parties have moved for summary judgment, and since each party’s 

motion must be evaluated based on the facts viewed in the light most favorable to the opposing 

party, the Court analyzes the parties’ respective motions in turn. 

A. Ms. Grady’s Motion for Summary Judgment 

Ms. Grady argues that she provided adequate notice of her return date and that there is no 

genuine factual dispute as to whether Sisters violated her rights under the FMLA by assessing 

attendance points for September 4, 2012, so she asks for summary judgment in her favor. 

Viewing the facts in the light most favorable to Sisters, though, as the Court must do in 

evaluating Ms. Grady’s motion, the facts show that Ms. Grady informed Sisters that she would 

return from her FMLA leave on September 4, 2012, but that she failed to call to report her 
7 

absence on that date. Specifically, Ms. Decker-Burrous testified in her deposition that she 

inquired with Ms. Grady on August 31, 2012 when she would be returning to work, and that Ms. 

Grady made clear that she was coming back on Tuesday, September 4, 2012, the day after Labor 

Day. [DE 26-1 p. 17; DE 29-4]. Ms. Grady did not actually return to work on September 4, 

though, and never notified Sisters of any change in her plans. Because the FMLA entitles an 

employer to reasonable notice of when the employee will return to work, and also allows an 

employer to enforce its usual and customary policies relative to reporting absences, those facts 

preclude summary judgment in Ms. Grady’s favor. 29 C.F.R. § 825.311(c) (“It may be necessary 

for an employee to take more leave than originally anticipated. . . . [T]he employer may require 

that the employee provide the employer reasonable notice (i.e., within two business days) of the 

changed circumstances where foreseeable.”); Righi v. SMC Corp., 632 F.3d 404, 410 (7th Cir. 

2011) (“[E]mployers are entitled to the sort of notice that will inform them not only that the 

FMLA may apply but also when a given employee will return to work.” (internal quotation 

omitted, emphasis in original)); Brown v. Auto. Components Holdings, LLC, 622 F.3d 685, 689–

91 (7th Cir. 2010); Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 972 (7th Cir. 2000) 

(“Nothing in the FMLA or the implementing regulations prevents an employer from enforcing a 

rule requiring employees on FMLA leave to keep the employer informed about the employee’s 

plans.”). 

Ms. Grady advances a number of arguments to try to avoid that result, but none of them 

succeed. First, Ms. Grady argues that Sisters waived any notice requirement when Ms. DeckerBurrous told her on August 24, 2012, that she did not need to keep calling in each day. She also 

notes that the call-in policy does not apply when employees are on leave “for a specified period 

of time.” [DE 26-1 p. 9]. If viewed in isolation, that argument might be persuasive, as an 
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“employer may waive employees’ FMLA notice obligations or the employer’s own internal rules 

on leave notice requirements.” 29 C.F.R. § 825.304(e). However, the FMLA also permits 

employers to seek updates on when an employee expects to return from leave. 29 C.F.R. 

§ 825.311(c); Righi, 632 F.3d at 410; Gienapp, 756 F.3d at 529–30 (“Employers may, for 

example, require updated estimates about how long leave will last.”). And where the leave will 

be longer than anticipated, the employee must provide reasonable notice of that fact. 29 C.F.R. 

§ 825.311(c); Righi, 623 F.3d at 411. Here, according to Sisters’ evidence, Ms. Decker-Burrous 

spoke to Ms. Grady on August 31, 2012 to ask her when she would be returning from leave, and 

Ms. Grady provided a specific return date of September 4, 2012. Thus, even if Sisters had 

waived the requirement that Ms. Grady call in daily to report her absences, that would not 

necessarily show that Sisters waived its right to know when Ms. Grady would be returning to 

work or that Ms. Grady need not have notified it when the return date she provided changed. 

Ms. Grady similarly argues that Sisters’ attendance policy does not apply at all when an 

employee is on approved leave, so it was improper for Sisters to have disciplined her under that 

policy. This argument fails on the same disputed facts, though, since if Ms. Grady specifically 

told Sisters that she would be returning on September 4, and she failed to notify it of a change, 

then she could be found to have failed to provide adequate notice of her need for leave on that 

date as required by the FMLA. 29 C.F.R. §§ 825.303(a) (requiring notice of unforeseeable leave 

“as soon as practicable”), 825.311(c) (requiring “reasonable notice” of an extension of leave); 

Righi, 632 F.3d at 410. In that event, the FMLA would not immunize Ms. Grady against 

discipline, regardless of the applicability of any of Sisters’ policies. See Brown, 622 F.3d at 690 

(holding that the employee’s failure to comply with the FMLA’s notice requirement doomed her 

interference claim independently of whether she complied with her employer’s leave policies). 
9 

Further, the attendance policy only states that when a request for FMLA leave is 

approved, “the absences are excused and cannot be considered to be part of an attendance 

performance problem.” [DE 26-4 (emphasis added)]. That provision does not also excuse an 

employee from complying with any notice requirements. Those notice requirements are specified 

in the attendance policy and also in Sisters’ FMLA leave policy, which requires employees to 

provide notice of unforeseeable leave “as soon as possible after the employee is aware that he or 

she needs to take FMLA leave.” [DE 26-5]. Viewing the facts in the light most favorable to 

Sisters, Ms. Grady violated those requirements by telling it she would be at work on September 4 

and then failing to notify it that she would be absent that day. Moreover, by Sisters’ logic, it did 

not punish Ms. Grady for her absence, but only for the lack of notice. A properly reported sick 

day results in 5 attendance points under Sisters’ policy, so Sisters deducted that amount (which is 

imposed purely for an absence) from the 15 points that would be typically imposed for being 

absent and failing to call, thus punishing Ms. Grady only for the lack of notice, not for her 

absence. [DE 26-1 p. 22–23]. Therefore, the Court could not find for the purposes of summary 

judgment that the discipline Sisters imposed violated its internal policies, either. 

Ms. Grady further argues that even if she said she would be returning on September 4, the 

regulations allowed her up to two days to notify Sisters of her need for additional leave, and she 

provided that notice on September 5 when she returned to work. Under 29 C.F.R. § 825.311(c), 

if an employee needs to take more leave than originally anticipated, “the employer may require 

that the employee provide the employer reasonable notice (i.e., within two business days) of the 

changed circumstances where foreseeable.” See also 29 C.F.R. § 825.303(a) (“When the 

approximate timing of the need for leave is not foreseeable, an employee must provide notice to 

the employer as soon as practicable . . . . It generally should be practicable for the employee to 
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provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual 

and customary notice requirements applicable to such leave.”). Ms. Grady seems to argue that 

this allowed her to notify Sisters within two days after her absence on September 4 that she 

would need more leave. However, “the regulations are clear that notice of an unforeseeable need 

for leave—including an unforeseeable extension of medical leave—must be given within two 

working days of learning of the need for leave, not two working days of the expiration of leave.” 

Brown, 622 F.3d at 690 (internal quotation omitted).1

 Ms. Grady does not provide any evidence 

that any circumstances changed on September 4 that extended her need for leave or that it was 

not practicable for her to notify Sisters prior to her absence on that date of her need for additional 

leave, so this argument fails, too. 

In addition, Ms. Grady makes too much of the fact that after she failed to advise Sisters 

of her absence on September 4, Sisters nonetheless approved her FMLA leave through that date. 

Ms. Grady does not appear to dispute that if an employee fails to notify an employer of her 

absence as required by the FMLA, an employer can deny the FMLA leave. She argues, rather, 

that because Sisters later approved her FMLA leave anyway, it was then prohibited from holding 

her accountable for not calling in on that date. However, Ms. Grady has supplied no authority 

indicating that Sisters had such an all-or-nothing choice—that it could either deny her FMLA 

leave and impose the full 15 attendance points for an unexcused absence, or it could approve her 

FMLA leave and impose no discipline at all. In fact, if Ms. Grady did not provide adequate 

 

1 Brown analyzed the regulations in effect in 2007, which were revised in 2009, prior to the leave 

at issue here. 662 F.3d at 689 n.4. However, while the wording of the regulation has changed, the 

revisions do not affect the conclusion that the timeliness of the notice is determined relative to 

when the circumstances changed, not when the previous leave request expired. 29 C.F.R. 

§§ 825.311(c), 825.303 (“When the approximate timing of the need for leave is not foreseeable, 

an employee must provide notice to the employer as soon as practicable . . . .”).
11 

notice as required under the FMLA, then she has failed to make out a prima facie case of FMLA 

interference, and her claim fails regardless of how Sisters acted on her request after the fact. See 

Brown, 622 F.3d at 690; see also Gilliam, 233 F.3d at 971–72 (holding that even assuming the 

employee was on approved FMLA leave, “[n]othing in the FMLA or the implementing 

regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to 

keep the employer informed about the employee’s plans,” so the employer did not interfere with 

the employee’s FMLA rights by firing him for a lack of notice of the duration of his leave). 

Ms. Grady finally argues that by assessing her attendance points for not calling in on 

September 4, Sisters was modifying the Designation Notice it provided to her after her return, 

which indicated that her leave request was approved through at least September 4. Citing 29 

C.F.R. § 825.300(d)(5), which requires employers to inform employees in writing if the 

information in the Designation Notice changes, Ms. Grady argues that Sisters at the very least 

interfered with her FMLA rights by failing to timely provide written notice of that change. See

29 C.F.R. § 825.300(e) (stating that failure to follow the notice requirements may constitute 

interference with an employee’s FMLA rights). However, even granting Ms. Grady her premise 

that Sisters in effect modified the Designation Notice by assessing attendance points, a failure to 

provide notice as required under the FMLA regulations cannot give rise to relief unless the 

plaintiff can demonstrate prejudice, which Ms. Grady has not done. Murray v. AT&T Mobility 

LLC, 374 F. App’x 667, 671 (7th Cir. 2010). Sisters did not provide Ms. Grady with the 

Designation Notice until after she had returned from leave (when Sisters received the medical 

certification verifying that Ms. Grady qualified for FMLA leave), so she could not have relied 

upon the Designation Notice in thinking that her leave for September 4 had already been 

approved or that she need not report her absence on that date. Further, Ms. Grady was verbally 
12 

informed by Ms. Decker-Burrous on the day she returned to work that she would be assessed 

attendance points for failing to call in her absence on September 4, and she has not identified any 

way in which she was prejudiced by not immediately having that information in writing. 

Therefore, without producing undisputed evidence of prejudice, Ms. Grady cannot receive 

summary judgment in her favor on that basis, either. Accordingly, the Court denies Ms. Grady’s 

motion for summary judgment. 

B. Sisters’ Motion for Summary Judgment 

Sisters likewise seeks summary judgment in its favor, but its motion ultimately fails 

based on the same disputed fact: whether Ms. Grady informed it that she intended to return to 

work on September 4. Viewing the facts in the light most favorable to Ms. Grady in this posture, 

Ms. Grady estimated to Ms. Decker-Burrous that she expected to be absent for two weeks; no 

one at Sisters sought to clarify or ascertain Ms. Grady’s precise return date; Ms. Grady never told 

Ms. Decker-Burrous specifically that she would return to work on September 4; and Ms. DeckerBurrous told Ms. Grady that she did not need to call in her absences during her leave. Based on 

those facts, a reasonable jury could find that Ms. Grady had provided adequate notice of the 

length of her leave, that Sisters declined to require a more precise return date, and that Sisters 

waived its call-in policy during Ms. Grady’s leave. If that was the case, then Ms. Grady fully 

complied with the FMLA’s notice requirements and with Sisters’ policies, and was entitled to 

take her leave without having any attendance points assessed for the leave period. 29 C.F.R. 

§ 825.220(c) (“[E]mployers cannot use the taking of FMLA leave as a negative factor in 

employment actions, such as hiring, promotion or disciplinary actions; nor can FMLA leave be 

counted under no fault attendance policies.”); Gienapp v. Harbor Crest, 756 F.3d 527, 530 (7th 

Cir. 2014) (holding that an employee provided adequate notice and was entitled to proceed on an 

interference claim where the employee had to take unforeseeable FMLA leave, the employee 
13 

provided the employer an approximate length of the leave, and the employer did not seek a 

specific return date).

In arguing to the contrary, Sisters argues that regardless of whether Ms. Grady actually 

informed it that she would be returning on September 4, it honestly believed that Ms. Grady 

violated its attendance policy for failing to call in that day, and it thus did not violate Ms. 

Grady’s FMLA rights, even if its enforcement of its policy was inaccurate. In support of that 

argument, Sisters relies entirely on Perry v. Bath & Body Works, LLC, 993 F. Supp. 2d 883, 911 

(N.D. Ind. 2014), in which the court held that the employer did not interfere with the employee’s 

FMLA right to reinstatement by firing her for performance reasons unrelated to her leave, since 

the employer honestly believed that her performance justified her discharge.2

 The evidence here, 

however, reveals a genuine dispute as to whether Sisters actually believed Ms. Grady violated its 

attendance policy. Most notably, Ms. Decker-Burrous testified that she personally informed Ms. 

Grady that she need not keep calling in each day to report her absences. [DE 26-1 p.11]. 

Moreover, Ms. Grady denies having told Ms. Decker-Burrous that she was returning on 

September 4, and maintains that she only provided an estimate of two weeks. Because those facts 

would have been in Ms. Decker-Burrous’ personal knowledge, a jury could find that she did not 

honestly believe that Ms. Grady was going to be at work on September 4 or that Ms. Grady 

violated the attendance policy (that Ms. Decker-Burrous herself waived) by not calling in on that 

date. 

 

2 Perry is potentially distinguishable on the basis that the employer there imposed the discipline 

for performance reasons that were completely unrelated to the employee’s leave, whereas the 

policy Sisters claims to have relied on relates to the notice Ms. Grady provided of her need for 

FMLA leave. Because a genuine dispute of fact precludes summary judgment on this theory 

anyway, the Court need not decide at this time whether Sisters could defeat Ms. Grady’s claim if 

it honestly but mistakenly believed that Ms. Grady violated its attendance policy during her 

FMLA leave. 
14 

Sisters argues that Ms. Grady conceded during her deposition that Ms. Decker-Burrous 

honestly believed she violated the attendance policy, but Ms. Grady’s testimony on that point 

was at best ambiguous. Sisters refers to the following exchange: 

Q. Did Ms. Decker-Burrous tell you why she believed that you were going to work 

on September 4th? 

A. She was under the impression that’s when I was returning. 

Q. And did she tell you why she was under that impression? 

A. No. 

[DE 29-3 p. 52]. Sisters argues that Ms. Grady admitted through this testimony that Ms. DeckerBurrous was honestly under the impression that Ms. Grady was going to be at work on 

September 4, in which case Ms. Grady would have violated the attendance policy by failing to 

report her absence. However, since the questions specifically referred to what Ms. DeckerBurrous told Ms. Grady, this testimony is ambiguous as to whether Ms. Grady was merely 

relaying what Ms. Decker-Burrous told her, or whether she was conceding that Ms. DeckerBurrous was actually under that impression. And given Ms. Grady’s express testimony that she 

never told Ms. Decker-Burrous that she was returning on September 4, [DE 29-3 p. 39–41], the 

Court does not construe this testimony as a concession that Ms. Decker-Burrous actually 

believed Ms. Grady was returning on that date. Accordingly, there is a genuine dispute as to 

whether Ms. Decker-Burrous actually believed Ms. Grady violated the attendance policy, so 

summary judgment cannot be granted on that basis. 

Sisters also notes that Ms. Grady did not appeal the 10 attendance points through an 

internal process, and that she did not dispute the other attendance points that cumulatively led to 

her discharge. However, Sisters fails to identify the legal significance of these facts. To the 

extent Sisters is attempting to impose an internal exhaustion requirement as a prerequisite to an 
15 

FMLA claim, it has failed to cite any authority in support of such a requirement, so it has waived 

any such argument. And while Sisters discusses the other attendance points Ms. Grady received, 

it expressly admits that the 10 points at issue here contributed to her firing, so it is not arguing 

that it would have taken the same action at that time regardless of this particular discipline. The 

Court accordingly rejects that argument as a basis for summary judgment in Sisters’ favor too. 

IV. CONCLUSION 

For the foregoing reasons, both parties’ motions for summary judgment [DE 24, 27] are 

DENIED. 

 SO ORDERED. 

 ENTERED: October 15, 2015 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court