IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DARLENE SHEILS, )

)

Plaintiff, ) Case No. 12 CV 2766

v. )

) Judge Manish S. Shah

GATEHOUSE MEDIA, INC., )

GATEHOUSE MEDIA SUBURBAN )

NEWSPAPERS, INC., and SHAW )

SUBURBAN MEDIA GROUP, INC., )

)

Defendants. )

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendants (collectively "GateHouse"), by their attorneys, submit their Motion for 

Judgment as a Matter of Law pursuant to Fed. Rule Civ. P. 50 and state as follows:

I. INTRODUCTION

This a five count action, alleging: (1) FMLA interference related to Plaintiff's return from 

medical leave in January 2010; (2) FMLA retaliation related to Plaintiff's return from medical 

leave in January 2010; (3) FMLA retaliation related to Plaintiff's discharge in February 2011 

while she was on medical leave; (4) Defendants' failure to pay overtime for time worked in 

excess of 40 hours in a given workweek; and (5) Illinois common law retaliatory discharge 

related to Plaintiff's exercise of rights under the Illinois Workers' Compensation Act.

In addition, Plaintiff contends that GateHouse Media, Inc. was her employer under 

principles of joint employer liability.

II. LEGAL STANDARD

Rule 50(a) of the Federal Rules of Civil Procedure allows a district court to enter 

judgment against a party who has been fully heard on an issue during a jury trial if "a reasonable 

jury would have legally sufficient evidentiary basis to find for the party on that issue." In 
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examining the evidence to rule on a motion for judgment as a matter of law, the court does not 

make credibility determinations or weigh evidence. Waite v. Board of Trustees of Illinois 

Community College Dist. No. 508, 408 F.3d 339, 343 (7th Cir. 2005), citing Reeves v. Sanderson 

Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

III. ELEMENTS OF THE CLAIMS BROUGHT BY PLAINTIFF

A. FMLA Interference

To establish a claim for FMLA interference, an employee must show that: (1) she was 

eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was 

entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take 

leave; and (5) her employer denied her FMLA benefits to which she is entitled. Burnett v. LFW, 

Inc., 472 F.3d 471, 472 (7th Cir. 2006). 

An employee's right to reinstatement is not absolute. The FMLA allows an employer to 

refuse to restore an employee to the "former position when restoration would confer a 'right, 

benefit, or position of employment' that the employee would not have been entitled to if the 

employee had never left the workplace." Kohls v. Beverly Enters. Wisc., Inc., 259 F.3d 799, 805 

(7th Cir. 2001) (citing 29 U.S.C. § 2614(a)(3)(B)); see also 29 C.F.R. § 825.216(a) ("An 

employee has no greater right to reinstatement or to other benefits and conditions of employment 

than if the employee has been continuously employed during the FMLA leave period."). 

B. FMLA Retaliation

FMLA retaliation claims are evaluated under the same standard used in Title VII 

retaliation claims. See James v. Hyatt Regency, 707 F.3d 775, 781 (7th Cir. 2013). Hence, a 

plaintiff must show: (1) she engaged in a protected activity; (2) her employer took an adverse 

employment action against her; and (3) there is a causal connection between the protected 
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activity and the adverse employment action. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 633 (7th

Cir. 2009).

An employer does not, however, violate the FMLA for failing to return a plaintiff to her 

former position after she returns from leave if the employee would have been let go even if she 

had taken the leave and the termination decision was unrelated to the leave request. Goelzer v. 

Sheboygan County, Wis., 604 F.3d 987, 993 (7th Cir. 2010). The regulations also state that an 

employee who is laid off during the course of her leave has no right to reinstatement. 29 C.F.R. 

§ 825.216(a)(1).

C. Overtime Claim

The FLSA requires employers to pay overtime to certain employees who work more than 

40 hours in a work week. 29 U.S.C. § 207(a). The employee bears the burden of proving she 

performed the overtime work for which she was not properly compensated. Anderson v. Mt. 

Clemens, 328 U.S. 680, 686-87 (1946). To state a claim under the FLSA, a plaintiff must show 

that the employer had actual or constructive knowledge of her overtime work. See Reich v. U.S. 

Dep't of Conservation & Natural Res., State of Ala., 28 F.3d 1076 (11th Cir. 1994). 

The FLSA does not "require the employer to pay for work it did not know about, and has 

no reason to know about." Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011); See 

also 29 U.S.C. § 203(g); 29 C.F.R. § 785.11. In other words, an employer cannot be held liable 

for FLSA violations unless it has actual or constructive knowledge of an employee's work. An 

employer has "constructive knowledge" under the FLSA when it "had reason to know" or 

"should have known" that its employee performed uncompensated work. Kellar, 664 F.3d at 

177). 
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D. Illinois Common Law Retaliatory Discharge Claim

To prevail on a retaliatory discharge claim, a plaintiff must show: "(1) that she was 

defendant's employee before her injury; (2) that she exercised a right granted by the Workers' 

Compensation Act; and (3) that she was discharged from her employment with a causal 

connection to her filing a workers' compensation claim." McCoy v. Maytag Corp., 495 F.3d 515, 

520-21 (7th Cir. 2007). The element of causation is not met if the employer has a valid basis, 

which is not pretextual for discharging the employee. McCoy, 495 F.3d at 521. To show pretext, 

a plaintiff must offer evidence to indicate that the employer did not honestly believe the reasons 

it gave for its actions and is lying to cover its tracks. Id. at 522-23. 

There is no per se rule prohibiting an employer from discharging an employee who has 

filed for workers' compensation benefits. Clark v. Owens-Brockway Glass Container, Inc., 297 

Ill.App3d 694 (5

th Dist. 1998).

E. Joint Employer Assertion Against GateHouse Media, Inc.

With respect to the issue of joint employer liability, "for a joint-employer relationship to 

exist, each alleged employer must exercise control over the working conditions of the employee, 

although the ultimate determination will vary depending on the specific facts of each case." 

Moldenhauer v. Tazwell-Pekin Consol. Commc'ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008). 

Factors relevant in determining whether a joint-employer relationship exists include but are not 

limited to whether the alleged employer "(1) had the power to hire and fire employees, (2) 

supervised and controlled employee work scheduled or conditions of payment, (3) determined 

the rate and method of payment, and (4) maintained employment records." Moldenhauer, at 644.
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IV. ARGUMENT

A. Insufficient Evidence To Support Plaintiff's FMLA Interference And 

Retaliation Claims On Her Demotion

Plaintiff has not proved the above-described necessary elements to prevail on either of 

her FMLA claims related to her demotion in January 2010. The only evidence Plaintiff adduced 

that touches on any discriminatory aspect of her demotion are the comments allegedly made by 

Carol Gilbert directly to Plaintiff and the comments by Caroll Stacklin and Don Stamper 

allegedly made to Gilbert that were relayed to Plaintiff. Those comments, even if actually made

– which they were not, do not demonstrate violations of the FMLA because they, by Plaintiff's 

admission, were solely related to her filing a workers' compensation claim in June 2009 and not 

the two FMLA leaves she took beginning in August and December 2009. 

Further, when questioned by her attorney about why she believes her demotion was 

somehow unlawful, Plaintiff only testified that GateHouse did not treat her fairly. Plaintiff's 

perception of unfairness is not tantamount to violations of the FMLA and she has not supported 

those contentions. Indeed, she relies solely on the timing of her demotion vis-à-vis her two 

FMLA claims. But, timing alone is insufficient to support a claim for retaliation. Andonissamy 

v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008). In addition, rather than terminate 

Plaintiff in January 2010, GateHouse found a way to continue her employment by assigning her 

a new position with diminished duties, which included the loss of her supervisory role. 

Plaintiff's supervisory position no longer existed and, therefore, was not available upon Plaintiff's 

return from her second FMLA leave in January 2010. The corresponding reduction in pay was 

solely related to Plaintiff's diminished job duties and nothing more. There is no evidence of 

interference or retaliation. Without regard to GateHouse's entirely credible and plausible 
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defenses, based on Plaintiff's testimony alone, there is no reason to send either her demotionbased FMLA interference or retaliation claims to the jury. 

Accordingly, judgment as a matter of law should be entered in favor of GateHouse.

B. Insufficient Evidence To Support Plaintiff's FMLA Retaliation Claim 

Related To Her Layoff 

Plaintiff has not proved the above-described necessary elements to prevail on her FMLA 

retaliation claim related to her layoff in January 2010. Other than the timing of the department 

and nation-wide reorganization in January/February 2011 and her not being selected for the two 

post-reorganization positions she applied for, Plaintiff has not adduced any evidence of 

retaliation. As previously set forth with respect to Plaintiff's retaliation claim on her demotion, 

timing alone is insufficient to support a claim for retaliation. Andonissamy v. Hewlett-Packard 

Co., 547 F.3d 841, 851 (7th Cir. 2008). Moreover, the comments allegedly made by Gilbert, 

Stacklin and Stamper are completely unrelated to Plaintiff's FMLA leaves because, at most, they 

only pertain to her filing a workers' compensation claim in June 2009. 

In addition, Caroll Stacklin's communications with Laura Williams in January 2011 about 

Plaintiff's FMLA leaves, and their communications with outside counsel, were part of 

GateHouse's due diligence process in assessing the possibility of legal risk associated with the 

layoff of an employee who had recently taken FMLA leave and filed a claim for workers' 

compensation benefits. Stacklin and Williams testified that this due diligence is not limited to the 

FMLA or workers' compensation claims; rather, it extends to any protected characteristic 

including, but not limited to, age, race or sex, or any other protected classification.

Next, there is no evidence to undercut the fact that GateHouse believed Sue Krisch and 

Lynn Adamo were more qualified than Plaintiff for the Ad Traffic Coordinator and Senior 

Production Coordinator positions they applied for and rightfully obtained.
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Further, the other positions that were advertised after Plaintiff did not obtain either of the 

two jobs she applied for had nothing to do with Plaintiff's FMLA leave in January 2011. Indeed, 

Caroll Stacklin offered unrebutted and unimpeached testimony regarding the non-retaliatory 

reasons for the job advertisements that were posted after Plaintiff's discharge in February 2011. 

More specifically, Stacklin testified that GateHouse posted the ads at the same time the 

announcement was made to the existing workforce in January 2011 because they needed a safety 

net in the event not enough employees applied for the open positions. GateHouse's exercised 

that caution because it simply could not predict how its employees would react to different hours 

and pay. In addition, running the ads did not cost GateHouse any additional money because they 

had a corporate relationship with Monster.com. The fact that the ads ran after February 2011, 

when the new positions were filled is because such ads typically run for a minimum of thirty 

days and possibly longer. Plaintiff's prior FMLA claim had nothing to do with her selection for 

lay off in February 2011. 

To sum up, Plaintiff's difference of opinion is not evidence of retaliation. Accordingly, 

judgment as a matter of law should be entered in favor of GateHouse.

C. Insufficient Evidence To Support Plaintiff's Overtime Claim

Plaintiff has not proved the above-described necessary elements to prevail on her 

overtime claim. There is not a single time card in evidence that notes Plaintiff worked more than 

forty hours in any workweek in 2010. Moreover, the diminished workload in the composing 

department, as confirmed by every trial witness, including Plaintiff, makes it impossible for 

Plaintiff to meet her burden of proof on her overtime claim. In addition, nobody at GateHouse 

possessed any knowledge of the alleged overtime work Plaintiff performed.

Accordingly, judgment as a matter of law should be entered in favor of GateHouse.
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D. Insufficient Evidence To Support Plaintiff's Illinois Common Law 

Retaliatory Discharge Claim

Plaintiff has not offered any direct proof of causation on her Illinois common law 

retaliation claim. A plaintiff does not meet the causation element in her retaliatory discharge 

case if the employer had a valid, non-pretextual basis for terminating the plaintiff. Other than 

the comments allegedly made by Gilbert, Stacklin, and Stamper, which were all denied, Plaintiff 

has no other evidence in support of this claim. And, certainly, Plaintiff has no evidence of 

pretext. Also, to the extent Plaintiff has argued there is close temporal proximity to her layoff 

and filing of a workers' compensation claim and subsequent continuing exercise of her rights, 

that argument fails. Temporal proximity often serves as an “important evidentiary ally of the 

plaintiff.” Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011). But 

temporal proximity alone is generally not enough to create a genuine issue of material fact. See 

Silverman v. Bd. Of Educ. Of Chicago, 637 F.3d 664, 675 (7th Cir. 2011). ("The causality 

requirement calls for more than a sequential connection."). To the contrary, no such temporal 

proximity exists due to the approximately 18 month passage of time from the date Plaintiff filed 

her claim for workers' compensation benefits and the date of her discharge.

Accordingly, judgment as a matter of law should be entered in favor of GateHouse.

E. Insufficient Evidence To Support Plaintiff's Assertion That GateHouse 

Media, LLC Is A Joint Employer

The facts do not support a finding of joint employer liability. There was no evidence 

adduced that GateHouse Media, Inc. had the power to hire or fire GateHouse Suburban 

employees. Critically, the fact that Caroll Stacklin was technically a GateHouse Media 

employee when she was involved in the decision to lay off Plaintiff in February 2011 is of no 

moment because at that time she was performing concurrent duties as a Publisher for GateHouse 

Suburban – Plaintiff's employer. And, that is not the test for joint employer status. Indeed, 
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without regard to the tangential issues Plaintiff picked at in an attempt to shift the focus away 

from the actual control elements of the joint employer test, there is no evidence that GateHouse 

Media controlled or had any involvement in the day-to-day activities of GateHouse Suburban 

employees; nor did it control rates of pay for GateHouse Suburban employees or maintain their 

personnel files. Plaintiff's speculation and mere suggestions of facts to the jury on this issue are 

not enough to obtain a finding of joint employer liability.

Accordingly, judgment as a matter of law should be entered in favor of GateHouse.

V. CONCLUSION

For all of the foregoing reasons, GateHouse respectfully requests the Court to grant

Defendants' Motion for Judgment as a Matter of Law and to grant such other and further relief as 

the Court deems just and proper.

Dated: March 26, 2015

Respectfully submitted,

s/ Brian S. Schwartz

MICHAEL A. PAULL (ARDC # 6194021)

BRIAN S. SCHWARTZ (ARDC # 6273020)

KLEIN DUB & HOLLEB, LTD.

660 LaSalle Place, Suite 100

Highland Park, Illinois 60035

(847) 681-9100

map@labor-law.com

brian.schwartz@labor-law.com

Attorneys for GateHouse
CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true and correct copy of the foregoing 

Defendants' Motion for Judgment as a Matter of Law was served upon:

Jill Weinstein

Erika Pedersen

PEDERSEN & WEINSTEIN LLP

55 E. Jackson Boulevard, Suite 510

Chicago, IL 60604

via the CM/ECF Electronic Filing System, on this 26th day of March, 2015. 

s/Brian S. Schwartz