MEMORANDUM ORDER

MARY PAT THYNGE, United States Magistrate Judge.

I. INTRODUCTION

This is an employment discrimination case. On December 9, 2009, Stacy A. Naber ("Naber") filed suit against Dover Healthcare Associates, Inc., d/b/a Silver Lake Center ("Silver Lake") alleging violations of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA") and the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA").1 Currently before the court is Silver Lake's motion for summary judgment.2

II. BACKGROUND

Silver Lake is a 120-bed nursing home facility located in Dover, Delaware that provides skilled nursing, medical, and rehabilitative care for patients and older adults who live there ("residents").3 In order to provide regular mental and physical stimulation to bolster the health and well being of its residents, Silver Lake created treatment plans that include daily group and individual activity sessions.4 Group activities include coffee socials, bible study, games, and exercises.5 Recreation Assistants conduct those activities.

Recreation Assistants document each resident's participation in activity log books.6 According to Silver Lake, because the facility reports treatment to Medicaid and Medicare for reimbursement purposes, accurate documentation of resident activities is of the utmost importance.7 Consequently, Silver Lake's policies provide that falsifying residents' records is grounds for immediate termination.8

Naber was hired by Silver Lake on August 20, 2007 as a Recreation Assistant.9 During her employment, plaintiff's supervisor was Erin Mueller ("Mueller"), the Director of Recreation.10 Early in her employment, Naber erroneously documented that she had a one-on-one room visit with a particular resident when, in fact, she had visited a different resident. Mueller noticed the error and, when asked about it, Naber acknowledged her mistake. Mueller responded that such mistakes happen and that Naber should be more careful.11

Naber initially had a cordial relationship with Mueller, but sometime in 2008 their relationship changed.12 That change was a result of Naber's belief that Mueller made inappropriate comments, and/or started rumors, about Naber to other Silver Lake employees.13 Those comments/rumors included: something to the effect of "there goes Stacy with her man laugh" (suggesting that Naber frequently flirted with men); that Naber dressed provocatively; that Naber would date anyone; that Naber was pregnant; and, that Naber was having a relationship with a co-worker.14

Sometime in 2008, Naber spoke to Human Resources representative Theresa Maloney ("Maloney") about Mueller's gossiping, after which, Maloney relayed Naber's concerns to James Adams ("Adams"), Silver Lake's Nursing Home Administrator.15 Maloney and Adams then met with Naber to discuss her concerns. At the conclusion of the meeting, Adams said he would discuss the matter with Mueller.16 A meeting with Maloney, Mueller, and Naber was then arranged.17 During the meeting, Maloney told Mueller of Naber's concerns. Mueller denied spreading rumors about Naber but apologized for asking questions about her relationship with a co-worker.18

Naber also submitted an affidavit averring that at some point in 2008, she and Shelly Shoup ("Shoup"), another Resident Assistant, requested to speak with Human Resources concerning their difficulties with Mueller.19 According to Naber, when Adams became aware of that request, he called the two into his office and told them "he was tired of what was going on in the Recreation department, that he liked what Ms. Mueller was doing in the Department, and that if we did not like it, we could look for other jobs."20

In January 2009, Mueller took maternity leave for six weeks.21 Mueller's absence increased the number of tasks Naber was required to complete while working the same number of hours. During Mueller's leave, Naber met with Human Resources Regional Manager Janet Krauss ("Krauss") and complained that the increased workload "stressed [her] out" and left her feeling "exhausted" and expressed her frustration with Mueller because of the purported previous gossip about Naber.22

Shortly after Mueller returned from maternity leave on February 23, 2009, Naber became anxious about going to work and felt as though she was "walking on pins and needles," "being watched," and that Mueller was harassing her by "nitpicking" everything she did.23 That anxiety led to sleeplessness at least one or two nights a week.24

In a meeting on February 26, 2009, Naber told Mueller and Kendra Marvel ("Marvel"), Benefit/Payroll Designee, that she needed time off from work "to get away for a while."25 Naber also stated that she had spoken with June Leslie ("Leslie"), Assistant Recreation Director, about being burned out. Leslie mentioned that, at the discretion of the director, Naber could potentially work a reduced schedule of thirty-two hours per week, in which Naber expressed interest.26 Mueller responded that since her return from maternity, Naber had not made this request. Mueller also told Naber that rather than going to Human Resources, she should have come directly to Mueller with her request for time off. Mueller also informed Naber that she would have to evaluate the needs of the department before determining whether Naber's request for a thirty-two hour week could be accommodated.27 On March 1, 2009, Naber submitted a "Time Off Request" form seeking leave from March 23 to March 26, 2009, which Mueller authorized.28

On March 3, 2009, Naber wore blue jeans to work. Such attire is permitted at Silver Lake only on a "dress-down day." Because that date was not a dress-down day, Mueller gave Naber a verbal warning, documented in a "Corrective Action Notice."29 Naber felt that the discipline was unfair and complained to Mueller that other employees, including a department head, were wearing jeans that day. Naber also explained to Mueller she was wearing jeans because she had torn her uniform pants and did not have another clean pair.30 Mueller acknowledged that, had Naber explained the situation to her upon arriving at work, likely no disciplinary action would have been taken.31

After being issued the disciplinary form, Naber contacted Betty Scott ("Scott"), Regional Vice President, to express her concern over how she was being treated.32 Scott responded that she would ask Krauss to arrange a meeting with Naber, Krauss, Adams, Mueller.33 That meeting took place on March 5, 2009.34 At the meeting, Naber's write up for wearing jeans was discussed and Naber stated that she felt:

Krauss told Naber that the disciplinary action was appropriate because Naber had not approached Mueller to explain why she was wearing jeans.36 Naber testified that she was very upset and crying during the meeting and advised Krauss that she did not think she could return to work. Krauss told her she could go home and suggested Naber call the Employee Assistance Program ("EAP") to discuss her frustrations. Naber went home and called the EAP, returning to work the next day.37 That day, March 6, 2009, Naber requested leave for the following week, March 9 to March 13, 2009. Despite having already scheduled Naber's shifts for that week, Mueller approved her leave request.38

On March 10, 2009, Naber requested intermittent FMLA leave.39 An Initial Medical Certification, also dated March 10, 2009 and signed by Maryellen Carbaugh ("Carbaugh"), a Licenced Professional Counselor of Mental Health, diagnosed Naber with "Major Depression, Single Episode, Moderate" and listed "poor sleep, poor appetite, low mood, tearfulness, Stress at work due to hostile environment" as medical facts supporting Carbaugh's certification.40 Carbaugh's notes from Naber's March 10, 2009 session state that the reason for counseling was "Personal & Work issues." The notes also record that Naber recounted being disciplined for wearing jeans at work despite other co-workers wearing jeans; that Naber felt her supervisor was harassing her; and, that the resultant stress was starting to affect her life outside of work.41 Carbaugh advised that Naber should be on a intermittent leave in order to attend weekly hour-long counseling sessions and twice-monthly medical appointments.42

After Naber submitted her request for FMLA leave, Marvel purportedly told her that Adams as not happy about the indication that Naber's stress was due to a hostile work environment and that Adams was going to contact Carbaugh to have that indication changed.43 Adams testified that he had seen the hostile work environment notation when he signed the FMLA request form. He stated that, as an administrator, he was concerned by that notation and asked Marvel to contact Carbaugh to clarify the designation.44 Adams adamantly denied ever asking for the "hostile work environment" notation to be removed.45 Marvel submitted a declaration to the same effect in which she avers that Adams expressed concern about that notation and asked her to contact Carbaugh to "get a better understanding of what was meant by `hostile work environment,'" but that Adams never requested that she ask Carbaugh "to change or in any way alter the certification or any statements on the certification."46

When Naber returned to work on March 15, 2009, she did not conduct a scheduled 4:00 p.m. "Sensations" activity session. Mueller, in a meeting also attended by Marvel, gave Naber a verbal warning, again documented by a Corrective Action Notice. The document recorded that "on [the] weekend, all groups are [the] responsibility of [the] activity assistant on duty."47 Naber explained to Mueller that she was the only Recreation Assistant on duty that day and, after completing several other tasks, a resident who required someone to be with him asked to go outside to smoke at around 3:45 p.m. Because that resident normally smoked two cigarettes, it was after 4:00 p.m. before she returned inside.48 After giving Mueller that explanation, Naber "started shaking and stated `Erin you are driving me crazy, I can't deal with this, [and] started to cry. . . .'" Mueller responded that "[j]ust because you are on FMLA doesn't mean you are on light duty, you still have to do the work."49 Mueller also told plaintiff, that she was "being watched."50

On Sunday, March 29, 2009, Naber recorded on Resident A's51 record that she had a one-on-one room visit with him.52 Resident A was a relatively new resident at Silver Lake and was one of approximately ten African-American male residents at the facility.53 He was also nonverbal.54 Resident A had only recently been placed on the room visit list.55 Having not previously done a room visit with him, Naber did not know to which room Resident A was assigned.56 After checking the "bed board sheet," which indicates residents' room numbers and bed assignments, she proceeded to the room listed for Resident A and saw a nonverbal African-American individual and another long-time resident with whom she was familiar.57 Naber stated that the African-American gentleman acknowledged her by looking at her and smiling. She then provided her room activity by reading to him.58 At the time, Naber was not familiar with Resident A and did not know he was African-American. She assumed, however, that the individual to whom she read was the correct resident as he was sitting by the bed assigned to Resident A.59 On that date, however, Resident A was in the hospital, not at Silver Lake.60

On March 30, 2009, Shoup called Mueller's attention to Naber's documentation that she provided an activity for Resident A the previous day.61 Mueller informed Adams of the apparent documentation error.62 After reviewing the documentation, Adams instructed Mueller to look over other resident participation records from the previous day to determine whether Naber had inadvertently recorded an activity with a different resident. He also asked Mueller to speak to other residents with whom Naber recorded having one-on-one visits that day.63

Mueller spoke with two residents ("Resident B" and "Resident C") Naber documented as having visited on March 29 who Mueller believed were cognitively aware enough to remember if they had interacted with Naber the previous day.64 One of the residents told Mueller she had seen Naber in the hallway, but that Naber had not entered her room, while the other resident said the only person who visited her the day before was the resident's daughter.65 Mueller informed Adams of the residents' responses.66 Adams then contacted Krauss and explained the situation to get her advice.67 Krauss recommended that Mueller obtain signed statements from the residents recording their responses, which she did the next day, March 31, 2009.68

On that date, Krauss and Adams met with Naber to discuss the activity logs for Residents A, B, and C.69 Adams asked Naber to describe her March 29 interactions with those residents and to describe each resident, their rooms, and their roommates, which she did.70 After Naber described Resident A and his roommate, Adams informed her that Resident A was not at Silver Lake on March 29; he was in the hospital on that date.71 Naber testified that she might have responded that "he must have c[o]me back then" but, nevertheless, repeatedly insisted that "I know I saw somebody."72 Adams then informed Naber that falsely documenting activities performed for a resident was grounds for termination.73 At some point during the discussion, Naber became frustrated and upset and stated that she did not want to continue the discussion.74 Adams testified that he then told Naber that "if you are not willing to discuss anything more about [Resident A], I'm going to have to put you on an unpaid administrative leave until [Krauss] and I can talk about this a little further."75 Krauss then told Naber that if there was any additional information she wanted to share with her, Naber should call and that they would, nevertheless, contact her the following day.76 Naber did not contact Krauss or Adams with additional information and, following a call between Adams and Krauss on April 1, 2009, Adams terminated Naber's employment for "falsif[ying] a resident's Residential Participation Record and Individual Programming Log."77

III. DISCUSSION

A. Standard on Motion for Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, a court is to enter summary judgment only when the record demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court's role is not to weigh the evidence or to determine the truth of the matters asserted, but to determine whether there is a genuine issue of fact for trial.78 In so doing, the court must view all facts and draw all reasonable inferences in favor of the non-movant, take as true all allegations of the non-movant that conflict with those of the movant, and resolve all doubts against the movant.79 The court must also treat direct and circumstantial evidence alike.80

B. The McDonnell Douglas Standard

Naber's disability discrimination and retaliation claims are analyzed under the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green.81 The McDonnell Douglas analysis consists of three stages. First, a plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation.82 If a prima facie case is set forth, the burden then shifts "to the employer to articulate some legitimate, nondiscriminatory reason" for the adverse employment action.83 The burden then shifts back to the plaintiff to show that the employer's stated reason for the employment action was pretextual.84

C. FMLA Retaliation Claim

Naber alleges that Silver Lake fired her in retaliation for her attempt to exercise her rights under the FMLA.85 FMLA retaliation claims are analyzed under the McDonnell Douglas burden-shifting framework.86 To establish a prima facie case of FMLA retaliation, Naber must show: "(1) plaintiff availed herself of a protected right under the FMLA; (2) plaintiff suffered an adverse employment action; and (3) there was a causal connection between the employee's protected activity and the employer's adverse employment action."87 "`After establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action.'"88 "`Finally, if a legitimate non-discriminatory reason is provided, the plaintiff must present evidence to show that the defendant's proffered reasons were not its true reasons, but were merely a pretext for its illegal action.'"89 "In order to survive summary judgment, a plaintiff must `either (i) discredit[] the [defendant's] proffered reasons . . ., or (ii) adduc[e] evidence . . . that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.'"90

Silver Lake maintains that Naber fails to establish a prima facie case of FMLA retaliation because she cannot demonstrate a causal connection between her request for intermittent FMLA leave and her termination. Silver Lake contends that Naber's only support for her FMLA retaliation claim is the timing of her FMLA request and her termination, as well as her own belief that she was subjected to retaliation. Although "[a]t least when it is particularly suggestive, the temporal proximity of plaintiff's protected conduct and his termination can raise an inference that there is a causal link between the two,"91 temporal proximity alone is generally insufficient to establish the required causal connection.92 Also, a plaintiff's belief that she was a victim of retaliation is similarly insufficient to satisfy her burden of proof.93 Silver Lake argues that even if temporal proximity alone was enough to establish a causal connection, Naber's purported falsification of Resident A's treatment record was an intervening event that broke the causal chain between Naber's alleged protected conduct and her termination.

Silver Lake thus concludes that Naber cannot establish a prima facie case of FMLA retaliation and summary judgement is warranted for this claim.

Naber does not base her argument solely on the close temporal proximity to her FMLA request and termination; she contends other evidence supports the causal connection. First, relying on her deposition testimony relating a conversation with Marvel following her request for FMLA leave, she contends that Carbaugh's certification of her FMLA request, including "stress at work due to hostile environment" among the medical facts supporting the certification, upset Adams and that he intended to contact Carbaugh to convince her to change that statement.94 The court initially notes that Silver Lake maintains that Naber's statement concerning her conversation with Marvel is inadmissible hearsay.95 Additionally, Adams acknowledged that he was concerned about the "hostile work environment" notation, but testified that he only asked that Marvel contact Carbaugh to clarify the reason for that notation. He denied asking for that notation to be changed.96 Moreover, Marvel submitted a declaration averring that Adams requested she contact Carbaugh "to get a better understanding of what was meant by `hostile work environment'" and that "Adams never asked me to request the physician to change or in any way alter the certification or any statements on the certification."97

Next, Naber points to her testimony recounting that after submitting her FMLA request, Mueller told her "[j]ust because you're on FMLA doesn't mean you are on light duty, you still have to do the work," and that she was being "watched."98 The court notes that Mueller's first statement accurately recites the fact that Naber's request for intermittent FMLA leave merely stated her need for time off from work to attend counseling and/or medical appointments; it did not indicate a need for "light duty" when Naber was at work.99 Also, the first statement was made during a meeting with Naber, Mueller, and Marvel during which Naber received a verbal warning for failing to conduct a scheduled "Sensations" activity session on March 15, 2009 and the second statement was made later that afternoon.100 Naber acknowledged that she did not perform the scheduled activity session. It was after Naber explained to Mueller her reasons for failing to perform the activity session that Mueller told her she was not on light duty and had to do her work and later in the day that she was being "watched."101 The context in which those statements were made, therefore, indicate they were related to Naber's acknowledged failure to perform a scheduled activity session, not in response to her request for intermittent FMLA leave.

Finally, Naber contends that Silver Lake was on notice of her need for FMLA leave prior to her formal request on March 10, 2009. She argues that notice occurred on February 26, 2009 when she indicated her desire to work a reduced schedule due to work-related stress during a meeting with Mueller and Marvel. Naber argues that she experienced discriminatory treatment from both Mueller and Adams from that point on. That discriminatory treatment includes her verbal discipline for wearing jeans and for failure to perform the Sensations activity session, as well as her termination for allegedly falsifying Resident A's record. The court disagrees that Silver Lake was on notice of Naber's need for FMLA leave as of the February 26, 2009 meeting.

The evidence shows that during Mueller's six-week maternity leave, Naber felt she had more tasks to accomplish during her normal work day and that resulted in her complaining of being "exhausted" and "stressed out."102 The week Mueller returned from leave, Naber had a meeting with Mueller and Marvel during which she stated her need to "get away for a while" and expressed interest in a reduction in the number of hours she worked each week.103 On March 1, 2009, Naber submitted a request for four days off later in the month, which was granted.104 The court agrees with Silver Lake that Naber's request for a reduced schedule on February 26, 2009, due to being exhausted from her extra workload during Mueller's absence, was insufficient to put Silver Lake on notice that she was invoking her FMLA rights or that she had a serious health condition.105 Therefore, March 10, 2009 is the date from which Silver Lake was on notice of Naber's need for FMLA leave and her verbal warning for failing to conduct the Sensations activity and her termination are Silver Lake's actions relevant to her FMLA retaliation claim.106

With regard to the verbal warning Naber received for failing to conduct the Sensations activity session, Naber offered several excuses for not having conducted the session, including that she was the only Recreation Assistant on duty that day, that she had been very busy earlier in the day, and that she was outside with a resident at the time the session was to have begun.107 She also suggested that Mueller, who was the manager on duty that day, could have conducted the session herself.108 Importantly, however, Naber acknowledges that it was expected that she would conduct the session and did not.109 She also does not argue, nor point to any evidence, that her discipline was contrary to Silver Lake policy. There is also no indication in the record that other weekend employees failed to conduct scheduled activity sessions but were not disciplined. Consequently, this discipline of Naber does not support her allegation of FMLA retaliation.110

Lastly, Naber argues that her termination for erroneously documenting a one-on-one session with Resident A is evidence of retaliation based on evidence that other employees, and Naber herself early in her employment, had not been disciplined for similar resident documentation errors. As noted above, early in her employment Naber had recorded a one-on-one room visit with a particular resident when, in fact, she had visited a different resident. Mueller did not discipline Naber and merely told her to be more careful.111 Shoup had also made documentation errors regarding residents, but was not disciplined for doing so.112 Additionally, employee Stephanie Hrenchrir ("Hrenchrir") had transported the wrong patients to doctors' appointments and was not disciplined for doing so.113

Naber's previous documentation error, which she acknowledges was "early in her employment," was that she wrote having done a one-on-one visit with a particular resident when the visit was with another resident.114 Shoup's errors purportedly involved incorrectly recording the date of an activity that she actually provided to a resident. As an example, Shoup was allegedly permitted to correct, without being disciplined, her documentation of a resident having an activity on Tuesday, when the activity actually took place on Monday.115 Neither of those documentation errors recorded providing an activity to a resident not at Silver Lake and Naber did not know of Shoup ever documenting an activity with a resident who was not physically in the building or documenting an activity that, in fact, never took place.116 Shoup, therefore, is not a proper comparator for the discipline faced by Naber for documenting a visit with a patient who was not present at the facility. With regard to Hrenchrir, there is no evidence when her transportation mistakes took place or that she was supervised by Mueller. Furthermore, transporting residents to doctors' appointments is different conduct than documenting resident activities. As a result she is not a similarly situated employee to Naber and is also an improper comparator.117

There is no dispute that Naber documented providing an activity to Resident A when he was not at Silver Lake. Naber admitted this fact at deposition. She merely asserted that she did not intentionally falsify Resident A's record.

It is also undisputed that according to Silver Lake's Employee Handbook, immediate termination is the sanction for the first offense of falsifying a resident's records,119 and that Naber knew that was the company's policy.120 Based on the above, Naber's does not set forth a prima facie case of FMLA retaliation for failure to establish a causal connection between her notifying Silver Lake of her need to take intermittent FMLA leave and her termination.121 Even if she were to have established a prima facie case, summary judgment would nevertheless be warranted because, as discussed below, she cannot establish that Silver Lake's legitimate, non-discriminatory reason for her termination was pretextual.

In order to rebut Silver Lake's legitimate, non-discriminatory reason for Naber's termination, she must submit evidence from which "a fact finder could reasonably either (1) disbelieve [Silver Lake's] articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [Silver Lake's] action."122

To discredit Silver Lake's proffered reason for Naber's termination, she must demonstrate "`such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Silver Lake's] proffered legitimate reason for its action that a reasonable fact finder could rationally find them unworthy of credence.'"123 Naber must show "not merely that [Silver Lake's] proffered reason was wrong, but that it was so plainly wrong that it cannot have been the real reason."124

Silver Lake insists that Naber cannot meet that burden because she conceded that she documented providing an activity to Resident A when he was not at the facility125 and that other evidence supports Adams's determination that Naber falsified Resident A's record.

Naber strenuously denies Silver Lake's assertion that she admitted to the conduct for which she was terminated; falsifying records. Although Naber did not specifically state that she made a mistake or confused her residents when meeting with Adams,126 she repeatedly told him that she had seen an African-American man in Resident A's room and had read to him.127 Also, while Naber told Adams she knew her residents, her testimony is that she was not familiar with Resident A.128 Naber points out that Resident A was known to be nonverbal,129 therefore, she would not have expected him to respond when she addressed him by name. Naber also contends that Adams was aware that the only thing she knew about Resident A was that he was African-American, but Adams did not ask Naber about other physical characteristics of Resident A so that he could verify whether the individual she saw might have been another resident.130 Naber also notes her opinion that Residents B and C, whose records she was also accused of falsifying, were cognitively impaired.131

Naber contends, therefore, that there is ample evidence from which Adams could have concluded that her error was a case of mistaken identity and a jury could disbelieve Silver Lake's proffered reason for her termination and find that reason pretextual. As support for that contention, she argues there was no logical reason for her to falsify her interaction with Resident A because: (1) she was not required to conduct the activity, (2) she was merely helping Shoup out by conducting the activity, (3) she did not receive extra pay for conducting the activity, and (4) she could have simply relaxed instead of conducting the activity with the residents that afternoon.132 Lastly, Naber reiterates her argument that she and Shoup had previously made documentation errors regarding providing services to patients and had not been disciplined for them and that Hrenchrir transported the wrong residents to doctors' appointments without being disciplined.

As noted above, Shoup and Hrenchrir are not proper comparators. That they were not disciplined for their cited errors does not advance Naber's case. Also, whether Adams's decision to terminate Naber was illogical, or even wrong, is not dispositive because "the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is `wise, shrewd, prudent or competent.'"133 As a result, her assertion that the documentation at issue was possibly the result of mistaken identity does not rebut Silver Lake's legitimate, non-discriminatory reason for her termination.134

It is improper for the court to second guess Adams's business judgement or decision-making process, or make an independent assessment of his decision.135 It is the perception of the decisionmaker, Adams, at the time he decided to terminate Naber that is key.136 Silver Lake relies on the following evidence available to Adams at that time to support his proffered reason for his determination that Naber falsified records.

First, Naber, a full time employee of Silver Lake for a year and a half, reported on March 29, 2009 that she had conducted an activity with Resident A when that was impossible as he was in the hospital on that date.137 That discrepancy led Adams to begin an investigation, including instructing Mueller to interview other cognitively aware residents Naber documented as having an activity with on March 29, 2009.138

Residents B and C, whom Naber documented as visiting on that date, told Mueller Naber had not provided the documented activities; Mueller provided signed statements to Adams reflecting those residents' responses.139 During her March 31, 2009 meeting with Adams and Krauss, Naber correctly described Residents A, B, and C, their rooms, and their roommates.140 Naber provided details of her interactions with those residents, including that she read to Resident A.141 When informed that Residents B and C denied Naber had conducted the documented activities with them, and that Resident A was in the hospital, Naber insisted she knew each of her residents and that she had conducted the activities she recorded for March 29, 2009.142 During this meeting, Naber did not suggest to Adams that Residents B and C were cognitively impaired as a reason they might not had remembered seeing her that day.143 In response to being informed that Resident A was in the hospital on the date she recorded and activity with him, Naber told Adams that "he must have c[o]me back then."144 During the meeting, Naber did not suggest to Adams that she had confused her residents or read to another resident who happened to be in Resident A's room.145 Despite being told by Krauss at the end of the meeting to call her if Naber had any additional information she wanted to share, Naber did not call Krauss or Adams with any such information prior to her termination.146

Based on the foregoing, Silver Lake contends that Naber cannot discredit Adams's reason for her termination. The court agrees. Based on the record evidence, the court holds that a reasonable jury could not disbelieve Silver Lake's legitimate nondiscriminatory reason for terminating Naber, or find that an invidious discriminatory reason was more likely than not a motivating or determinative cause for her termination. Upon learning of the documentation error for Resident A, Adams began an investigation to determine whether that documentation was merely a mistake. He determined that it was not. The evidence available to him at the time he made this conclusion, whether he was correct or not, is sufficient to counter Naber's pretextual argument. Under such circumstances, the court will not question the wisdom of that conclusion.147 Consequently, Silver Lake's motion for summary judgment on Naber's FMLA retaliation claim is granted.

D. ADA Discrimination Claim

Naber's ADA discrimination claim is also governed by the McDonnell Douglas burden-shifting analysis. Silver Lake argues that Naber can not establish a prima facie case to support her disability discrimination claim. To establish a prima facie case of unlawful discrimination under the ADA, Naber must demonstrate that she: "(1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability."148 Silver Lake contends that her disability discrimination claim fails at the prima facie stage because she is not disabled. To qualify as disabled under the act, Naber must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such impairment; or (3) be regarded as having such an impairment.149 Silver Lake contends that Naber's alleged depression does not satisfy any of those categories. Major life activities "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."150 To be substantially limited means being (1) "[u]nable to perform a major life activity that the average person in the general population can perform" or (2) "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."151 In determining whether an individual is substantially limited in a major life activity, consideration must be given to: (1) "[t]he nature and severity of the impairment;" (2) "[t]he duration or expected duration of the impairment;" and, (3) "[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment."152 "An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability."153 The act also states that "[t]he definition of disability... shall be construed in favor of broad coverage of individuals under this chapter...."154

Silver Lake contends that Naber does not have any physical or mental impairment that substantially limits any of her major life activities. At deposition, Naber stated her depression limited her ability to sleep, eat, and concentrate.155 Silver Lake contends her testimony contradicts this assertion. With regard to eating, Naber testified that she does eat every day: "I don't starve myself."156 She stated that her difficulty concentrating was associated with sleeplessness: "[w]hen I can't sleep, it's really hard to stay concentrated, to focus."157 She stated that she "can't sleep sometimes."158 When asked about sleeping, she testified that she was able to sleep and that "[a]t the beginning" she sometimes took over-the-counter Tylenol PM to help her sleep and that currently she only takes that product "[e]very now and then."159 Prior to her termination, she was unable to sleep at all "once or twice a week."160 When asked how often she is currently unable to sleep, she replied, "[i]t really depends. If I really start thinking about certain things ... I won't get that much sleep at all a couple nights a week. I try to ... do my exercises, what my therapist said, and sometimes I can go to sleep."161 Silver Lake also maintains that the record demonstrates Naber's purported difficulty concentrating was not substantially limiting. Except for leaving work for weekly counseling sessions, there is no evidence she unable to work her regular schedule. Silver Lake argues Naber's testimony that she "was always thinking about what happened"162 demonstrates that it was her termination, not her alleged disability, that affected her concentration. Silver Lake also notes that Naber was able to spend time with friends (going shopping and out to dinner) and traveled to Florida two or three times a year to visit with family163 as evidence that her depression was not disabling.

Additionally, Silver Lake contends that her disability claim is flawed because, at best, Naber's condition was of limited duration and was entirely related to her strained relationship with Mueller. Silver Lake states that courts consistently find such conditions do not qualify as disabilities.164

Silver Lake argues the Third Circuit's ruling in Maslanka v. Johnson & Johnson, Inc.165 presents allegations analogous to Naber's. There, the plaintiff was diagnosed as "suffering from significant anxiety disorder and major depression associated with his stressful work situation" stemming from increasingly negative reviews from his supervisor.166 Claiming discrimination under the ADA, the plaintiff "alleged he was disabled by generalized anxiety and depression, which substantially limited the major life activities of sleeping, concentrating, and working."167 The defendant moved for summary judgment arguing that the plaintiff's disability claim under the ADA failed for lack of sufficient evidence that he was impaired by anxiety or depression; that the alleged impairment was temporary; and, that his impairment did not substantially limit a major life activity.168 The district court granted summary judgment in favor of the defendant and held that, although the plaintiff had made out a prima facie case of impairment, he did not demonstrate that his impairment substantially limited his major life activities of cognitive function, sleeping, or working. Consequently, the court found that, as a matter of law, he was not "disabled" under the ADA.169

On appeal, the Third Circuit noted that the plaintiff's medical records reported that his anxiety and depression were expected to last only as long as he worked for the same supervisor or continued to receive negative reviews. The plaintiff testified that his sleeping problems only lasted approximately three days and his cognitive function was not substantially limited as evidenced by his contention that his work performance met or exceeded the company's expectations during the relevant time periods. The plaintiff's ability to work was also not substantially limited as medical evidence was provided that he could perform his job under a different supervisor and, therefore, could perform the same job for a different employer. Indeed, he was recruited to work for another company shortly after his termination with the defendant, demonstrating that his impairment did not result in negative long-term or permanent impact. Based on the above, the Third Circuit stated that "[n]o reasonable juror could conclude from the record evidence that [the plaintiff's] impairment was permanent or would have a long-term impact."170

Silver Lake argues that Naber's discrimination claim similarly fails because her alleged anxiety and depression stem exclusively from her strained relationship with Mueller and were of a temporary nature only.171 Silver Lake maintains that there is no evidence in the record that Naber suffered any negative long-term or permanent impact from her impairment. Silver Lake contends that Naber's testimony confirms that her alleged depression is temporary and that her condition has already improved.172 At the time of her deposition, she did not know if she had a current diagnosis of depression.173 Silver Lake argues, therefore, that Naber's claim mirrors that of the plaintiff in Maslanka, and likewise fails.

In opposition to Silver Lake's motion, Naber argues that the primary problem in Silver Lake's argument that Naber does not qualify as disabled is that it relies on cases decided before January 1, 2009. On September 25, 2008, the ADA Amendments Act of 2008 ("ADAAA") was enacted in order "[t]o restore the intent and protections of the Americans with Disabilities Act of 1990,"174 and took effect January 1, 2009. As noted above, the ADAAA provides that the definition of disability "shall be construed in favor of broad coverage of individuals...."175 Silver Lake correctly notes, however, that the passage of the ADAAA did not relieve Naber of proving that her alleged impairment "substantially limits" her ability to sleep. Silver Lake reiterates that to proceed with her disability claim, Naber must establish (1) that her alleged depression, and not some other factor, caused her occasional inability to sleep and (2) that her ability to sleep was substantially limited.

Naber focuses on her experience of getting no sleep one or two nights per week, rather than her concentration or eating habits, as constituting a substantial limitation on the major life activity of sleeping. Naber also contends that Silver Lake has no evidence, and no expert testimony, that plaintiff's condition was "of limited duration" and "stemmed entirely from her strained relationship with her supervisor." Unlike the plaintiff in Maslanka whose sleeping problems lasted only three days, Naber testified that, prior to her termination, she was unable to sleep at all one or two nights a week and that, currently, she is still unable to sleep at all "a couple nights a week."176 She disputes Silver Lake's assertion that her deposition testimony demonstrates that her condition is "temporary." Rather, that testimony represents her hope that she "will get better... [e]ventually, in time" and that "this is not going to be the rest of [her] life."177

The evidence shows that before her termination Naber was unable to sleep at least one or two nights a week and that condition had persisted at least until her June 15, 2010 deposition, indicating that her condition was not of limited duration. The persistence of that condition also casts doubt on Silver Lake's contention that her condition was entirely related to her strained relationship with Mueller. Viewing the facts and drawing all reasonable inferences in favor of Naber, the court finds that there is a question of fact as to whether Naber's previously-diagnosed depression is the cause of her inability to sleep one or two nights a week and whether that sleeplessness is substantially limiting as compared to the average person in the general population. Consequently, summary judgment cannot be granted on her ADA discrimination claim for failure to set forth a prima facie case that she is disabled. Because, however, as discussed above, Naber cannot show that Silver Lake's legitimate, non-discriminatory reason for her termination is pretextual, her claim nevertheless fails. As a result, Silver Lake's motion for summary judgment on Naber's ADA discrimination claims is granted.

E. FMLA Interference Claim

Silver Lake states that Naber also alleges that it interfered with her FMLA rights. To properly set forth an interference claim:

Naber acknowledges that she received the FMLA leave—and additional time off—she requested.179 Silver Lake argues since Naber was never denied benefits to which she was entitled under the FMLA, any claim based on interference with FMLA rights necessarily fails.

Naber's complaint, under "Count II— FMLA," alleges that "Defendant ... has retaliated against Plaintiff for her exercise of her rights under the FMLA and has wrongfully interfered with, restrained, and denied Plaintiff's exercise of her rights under the FMLA."180 In her opposition brief, however, Naber did not respond to Silver Lake's argument in favor of summary judgment on a claim for interference with FMLA rights. Naber summarizes her opposition to Silver Lake's motion by asserting that summary judgment should be denied on her "FMLA retaliation claims" because the evidence of record could lead a fact finder to "reasonably either disbelieve [Silver Lake's] articulated reasons for [Naber's] termination or believe that an invidious reason was more likely than not a motivating cause of the termination."181

Because Naber failed to present evidence, or argument, demonstrating that Silver Lake interfered with her FMLA rights, the court grants summary judgment to Silver Lake to the extent Naber sought to put forth an FMLA interference claim.182

IV. CONCLUSION

For the reasons stated above, it is ORDERED, ADJUDGED, and DECREED, that defendant's motion for summary judgment (D.I. 32) is GRANTED.