The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW
Plaintiff, Ryan Boddicker, brought suit against defendant, Esurance Insurance Services, Inc., alleging violations of the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Consolidated Omnibus Budget Reconciliation Act (COBRA). The court granted summary judgment in favor of Esurance on Boddicker's FMLA retaliation and USERRA claims, but denied summary judgment on Boddicker's FMLA interference and COBRA claims. A jury trial commenced on the FMLA interference claim on March 15, 2011.*fn1 On March 16, 2011, at the close of Boddicker's case, Esurance moved for judgment as a matter of law. The court reserved ruling on the motion until the close of trial. The jury returned a verdict in favor of Boddicker in the amount of $2,835.18. Esurance renewed its motion for judgment as a matter of law after the trial. Boddicker resists the motion. The motion is granted.
The pertinent facts to this order, viewed in the light most favorable to the jury's verdict and assuming all conflicts in the evidence were resolved in Boddicker's favor,*fn2 are as follows:
Boddicker joined the Navy in 1993 and served in active duty until 1997, after which the Navy honorably discharged him. In 2003, Boddicker joined the Naval Reserves. He began working at Esurance's Sioux Falls, South Dakota, branch office as a sales agent on August 9, 2004. The Naval Reserves called Boddicker to active duty in February of 2005. Boddicker served with the Naval Reserves in Kuwait from February 28, 2005, until March 8, 2006.
In Kuwait, Boddicker served as a security guard for a port where all supplies, such as vehicles, equipment, and high-valued assets, were delivered to support the war in Iraq. While guarding a checkpoint, Boddicker experienced a traumatic event. After that event, Boddicker received medical attention in Kuwait and began suffering from post-traumatic stress disorder (PTSD). Boddicker was not recalled to active duty after he finished his tour of duty in Kuwait.*fn3
In March of 2006, after finishing his tour of duty, Boddicker returned to Esurance as a sales agent. Seven months later, Boddicker accepted a position as a sales analyst, which was offered to him by Shawn Uhlinger. Uhlinger supervised Jill Horton, who was Boddicker's direct supervisor as a sales analyst. Uhlinger also supervised Boddicker.
Boddicker experienced panic attacks and needed leave from work. He initially did not request FMLA leave but instead took unplanned absences. It is Esurance's policy that every time an employee has three unplanned absences, Esurance disciplines the employee.
Boddicker received several disciplinary warnings regarding his attendance before he requested intermittent FMLA leave. For example, on May 22, 2006, Boddicker received a notice of counseling because he had three unplanned absences from March 31 to May 17. In June of 2006, Boddicker received a written warning for another period of unplanned absences. On February 13, 2007, Boddicker received a second verbal warning for unplanned absences. On March 30, 2007, Esurance issued a second written warning to Boddicker for unplanned absences.
After receiving the second written warning on March 30, Boddicker discussed his absences with Uhlinger. Boddicker told Uhlinger that he was dealing with some issues related to something that happened during his military service and he was experiencing stress, anxiety, and panic attacks. Uhlinger gave Boddicker the number for Esurance's Employee Assistance Program (EAP) and suggested that he apply for FMLA leave.
Boddicker contacted the EAP office and met with counselor Kriste Hamilton for three counseling sessions. Hamilton indicated on Boddicker's FMLA paperwork that Boddicker suffered from a serious health condition, but she did not note that Boddicker suffered from PTSD. Hamilton stated that Boddicker needed intermittent FMLA leave for his periodic visits to a health care provider and for coping with his medical condition. Boddicker submitted his FMLA leave paperwork, and Esurance granted Boddicker's intermittent FMLA leave request.
Boddicker did not provide Esurance with formal notification of his exact medical condition until June 28, 2007, when he submitted a doctor's note stating that he had PTSD. Trial Exhibit 27 (Ex. 27). Patti Simpson, a human resources supervisor, made the note part of Boddicker's personnel file. Boddicker also noted that he suffered from PTSD on a form dated August 31, 2007, which he submitted to Esurance for a continuance of his intermittent FMLA leave. Ex. 26.
From April to September of 2007, Boddicker took 16 days of intermittent FMLA leave: April 26; May 1, 2, and 9; June 19, 21, and 25-29; July 3, 18, and 19; August 20-21 and 29-31; September 4-7, 10, 12, 17-21, and 24-28. Esurance did not discipline Boddicker for taking FMLA leave. But Boddicker alleges that Esurance eventually chilled his attempts to exercise his right to take intermittent FMLA leave through, among other actions, Esurance's call-in policy, ...