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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FREDDIE BROWN, )

)

Plaintiff, )

v. ) 12 C 2420

)

PITT OHIO EXPRESS, LLC, ) Judge John Z. Lee

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Freddie Brown has sued his former employer, Defendant Pitt Ohio Express, LLC 

(“Pitt Ohio”), alleging that Pitt Ohio violated the Family Medical Leave Act (“FMLA”), 29 

U.S.C. § 2601, et seq., by firing him for asking if he was eligible for leave under the Act and for 

requesting such leave. Pitt Ohio moved to dismiss the complaint under Federal Rule of Civil 

Procedure (“Rule”) 12(b)(6). Because Pitt Ohio’s motion to dismiss relied on matters outside of 

the pleadings, however, the Court notified the parties pursuant to Rule 12(d) that the motion 

would be treated as a summary judgment motion pursuant to Rule 56 and gave the parties a 

reasonable opportunity to present material facts. The parties complied. For the reasons provided 

herein, the Court grants Pitt Ohio’s motion for summary judgment.

Facts

The following facts are undisputed. Brown was employed by Pitt Ohio as a truck driver. 

(Def.’s LR 56.1(a)(3) Stmt. ¶ 1.) On March 2, 2011, Brown asked Manager Roman Sakas

whether Brown was eligible for leave pursuant to the FMLA, and Sakas understood that Brown 

wished to take a significant amount of time off from work immediately to be with his father, who 

was very ill. (Id. ¶ 4.) The next day, on March 3, 2011, Pitt Ohio terminated Brown’s 

employment because he was ineligible to take FMLA leave, but Sakas told Brown that he could 

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reapply for a position if one were available when Brown was able to return to work. (Id. ¶ 1.) In 

the year prior to March 3, 2011, Brown worked 1045.37 hours. (Id.) On March 12, 2011, 

Brown’s father died. (Def.’s Suppl. LR 56.1(a)(3) Stmt. ¶ 5.) On April 2, 2012, Brown sued Pitt 

Ohio for violating the FMLA. 

Discussion

“Summary judgment is appropriate if the moving party demonstrates that ‘there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.’” McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). “A 

genuine issue of material fact exists only if there is enough evidence that a reasonable jury could 

return a verdict in favor of the nonmoving party.” Peele v. Burch, 722 F.3d 956, 958 (7th Cir. 

2013). The non-moving party must inform the Court of the reasons, legal or factual, why 

summary judgment should not be entered. See Liberles v. Cook Cnty., 709 F.2d 1122, 1126 (7th 

Cir. 1983). If the non-moving party fails to raise evidence or theories in its brief opposing 

summary judgment, the party forfeits any reliance on that evidence or those theories. Milligan v. 

Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 389 (7th Cir. 2012); Chi. Reg’l Council of Carpenters v. 

Vill. of Schaumburg, 644 F.3d 353, 356 (7th Cir. 2011).

The FMLA provides that an “eligible employee” may take up to twelve work weeks of 

leave in a one-year period following certain events: a disabling health problem; a family 

member’s serious illness; or the arrival of a new son or daughter. 29 U.S.C. § 2612(a)(1). An 

“eligible employee” is an employee who has worked for the employer for at least one year and 

for at least 1,250 hours during the year preceding the requested leave. Id. § 2611(2)(A).

The FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the 

exercise or the attempt to exercise” any FMLA rights. 29 U.S.C. § 2615(a)(1). The Act also 

prohibits an employer from retaliating against an employee for exercising his or her FMLA 

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rights. See id. § 2615(a)(2) (prohibiting “any employer to discharge or in any other manner 

discriminate against any individual for opposing any practice made unlawful by this 

subchapter”); id. § 2615(b) (making it unlawful for any employer to discharge or discriminate 

against anyone for exercising rights under the FMLA); see also Kauffman v. Fed. Express Corp., 

426 F.3d 880, 884 (7th Cir. 2005) (“We have construed [§ 2615(a)(2) and (b)] to create a cause 

of action for retaliation.”) Brown has sued Pitt Ohio for FMLA interference and retaliation.

I. FMLA Interference 

To prove interference with one’s FMLA rights, an employee must establish that: (1) he 

was eligible for FMLA protection; (2) his employer was covered by the FMLA; (3) he was 

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

FMLA leave; and (5) his employer denied him the right to FMLA benefits. Righi v. SMC Corp., 

632 F.3d 404, 408 (7th Cir. 2011). “There can be no doubt that the request — made by an 

ineligible employee for leave that would begin when she would still have been ineligible — is 

not protected by the FMLA.” Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 

2013).

Here, it is undisputed that Brown had not worked 1,250 hours during the year prior to his 

inquiry as to his eligibility for FMLA leave and his request for FMLA leave. (Def.’s LR 

56.1(a)(3) Stmt. ¶ 1.) Consequently, it is undisputed that Brown was not an “eligible employee” 

entitled to FMLA protection, and summary judgment must be granted as to his FMLA

interference claim. See Basden, 714 F.3d at 1039.

Brown argues that he need not be an “eligible employee” because requiring an employee

to be FMLA-eligible before the employee inquires about eligibility would frustrate the FMLA’s 

purpose of protecting employees. Otherwise, Brown contends, an employer could simply 

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terminate an inquiring employee before the employee becomes eligible. For support, Brown 

cites Reynolds v. Inter-Industry Conference on Auto Collision Repair, 594 F. Supp. 2d 925 (N.D. 

Ill. 2009). But Reynolds is readily distinguishable. 

In Reynolds, the plaintiff was fired immediately after he told his employer he would need 

FMLA leave in the near future. Id. at 926-27. He was not eligible for FMLA leave when he 

made that statement, but he would have been eligible three months later, when his requested 

leave would have begun. Id. at 926. The defendant in Reynolds, like Defendant here, moved to 

dismiss the plaintiff’s interference claim, arguing that the plaintiff had not been eligible for 

FMLA leave when he had requested it or when he was fired. Id. at 927. The issue before the 

court was whether an employee would be barred from proceeding with an FMLA claim if he or 

she was ineligible at the time of the request for FLMA leave, but became eligible when the 

requested leave would have commenced. Id.

Noting that “[i]t would be illogical to interpret the notice requirement in a way that 

requires employees to disclose requests for leave which would, in turn, expose them to 

retaliation, or interference, for which they have no remedy,” id. at 928, the Reynolds court denied 

the motion to dismiss, holding that “under the FMLA, an employer may not terminate an 

employee who has worked less than [the statutorily required] twelve months for requesting 

foreseeable future leave that the employee will be eligible for and entitled to at the time the leave 

is to begin.” Id. at 930. 

Here, unlike the plaintiff in Reynolds, Brown has not created a material issue of fact as to 

whether he would have been an “eligible employee” at the time of his requested leave. It is 

undisputed that in the year prior to his termination date, Brown worked 1045.37 hours. (Def.’s 

LR 56.1(a)(3) Stmt. ¶ 1.) It is also undisputed that on March 2, 2012, Sakas believed that Brown 

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was asking whether he was eligible for FMLA leave and, if so, whether he could take FMLA 

leave immediately to take care of his father who was seriously ill. (Id. ¶ 4; Def.’s Ex. 5, Sakas 

Decl. ¶¶ 4-9.) In response, Brown asserts that he did not specify a date on which any FMLA 

leave would have begun. (See Pl.’s LR 56.1(a)(3) Stmt. ¶ 3.) But, he fails to cite and provide 

evidence to support the statement as required by Northern District of Illinois Local Rule 56.1.

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However, even if the Court were to consider Brown’s unsupported statement (which it does not), 

nowhere does Brown identify the date on which his requested FMLA leave was to commence, 

even though Brown was provided an opportunity to do so. 

In sum, it is undisputed that Brown was not an “eligible employee” when he first 

requested FMLA leave. Additionally, Brown has failed to establish a triable issue of fact 

regarding as to whether he would have been an “eligible employee” at the time that he intended 

to take the requested leave. See, e.g., Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314

(6th Cir. 2001) (finding that an eligible employee’s right to take FMLA leave “includes the right 

to declare an intention to take such leave in the future”); Pereda v. Brookdale Senior Living 

Cmtys., Inc., 666 F.3d 1269, 1270-71 (11th Cir. 2012) (holding that “the FMLA protects a preeligibility request for post-eligibility maternity leave.”) (emphasis added). Accordingly, the 

Court grants Pitt Ohio’s motion for summary judgment as to Brown’s FMLA interference claim.

II. FMLA Retaliation 

To state an FMLA retaliation claim, a plaintiff must allege that he (1) engaged in activity 

protected by the FMLA; (2) he suffered an adverse employment action; and (3) a causal 

 1 This Court strictly enforces Local Rule 56.1’s requirements. See Benuzzi v. Bd. of Educ. of City of Chi., 

647 F.3d 652, 655 (7th Cir. 2011) (stating that it is well within the district court’s discretion to strictly 

enforce Local Rule 56.1). Brown, who is represented by counsel, failed to support any of his fact 

statements or responses to Pitt Ohio’s statement of facts with a citation to the record. (See Pl.’s LR 

56.1(a)(3) Stmt. ¶¶ 1-5; Pl.’s LR 56.1(b)(3)(B) Stmt. ¶¶ 1-4.) These omissions are troubling given that 

certain information in Brown’s fact statements is peculiarly within Brown’s personal knowledge. 

Accordingly, the Court disregards all unsupported fact statements. 

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connection exists between the two. Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670 (7th 

Cir. 2011). Because Brown has failed to create a triable issue as to whether he was an “eligible 

employee” under the FMLA either at the time of the request or the commencement of the 

requested leave, he cannot allege that he has engaged in activity protected by the FMLA. See

Bliss v. Jennifer Convertibles, Inc., No 01 C 8661, 2003 WL 22239655, at *17 (N.D. Ill. Sept. 

29, 2003) (“there is ample authority for the . . . proposition . . . that one cannot bring a claim for 

retaliation under the [FMLA] in response to a request for FMLA leave if one is ineligible for 

FMLA leave”); Sewall v. Chi. Transit Auth., No. 99 C 8372, 2001 WL 40802, at *8 (N.D. Ill.

Jan. 16, 2001) (“Since [plaintiff’s] leave was not covered by the FMLA, [defendant] could not 

have retaliated against [plaintiff] for taking FMLA leave.”); Thoele v. U.S. Postal Serv., 996 F.

Supp. 818, 821 n.1 (N.D. Ill. 1998) (“To state a claim for retaliation under the FMLA, the 

plaintiff must first establish that he or she was protected by the FMLA at the time the leave was 

taken.”) As a result, the Court grants Pitt Ohio’s motion for summary judgment as to Brown’s 

FMLA retaliation claim.2

III. Proper Notice of FMLA Eligibility

Finally, Brown alleges that Pitt Ohio failed to provide him proper notice under the 

FMLA. “When an employee requests FMLA leave . . . the employer must notify the employee 

of the employee’s eligibility to take FMLA leave within five business days.” 29 C.F.R. 

§ 825.300(b). “Failure to follow the notice requirements . . . may constitute an interference.” Id.

§ 825.300(e). But “the FMLA provides no remedy unless the action interfered with, retrained or 

denied [Plaintiff’s] exercise of his rights under the FMLA.” Darst v. Interstate Brands Corp., 

 2 Because Brown has failed to establish an issue for trial regarding the first element of an FMLA 

retaliation claim, the Court need not address Pitt Ohio’s argument that there is insufficient evidence 

for trial regarding the third element of a retaliation claim – the existence of a causal connection 

between his inquiry and his termination.

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512 F.3d 903, 910 (7th Cir. 2008) (citing 29 U.S.C. §§ 2615(a)(1), 2617, Ragsdale v. Wolverine 

World Wide, 535 U.S. 81, 89 (2002) (§ 2617 affords no relief unless the employee has been 

prejudiced by the violation), and Harrell v. U.S. Postal Serv., 445 F.3d 913, 928-29 (7th Cir. 

2006) (same)). “Of course, there could be no interference if [Plaintiff] had no right to FMLA 

leave.” Id.

Here, Brown asserts that, instead of notifying him about his FMLA eligibility, Pitt Ohio 

fired him the day after he inquired about it. But, as discussed, Brown has failed to raise a 

genuine issue of material fact as to whether he was an “eligible employee” under the FMLA and

entitled to FMLA rights. Accordingly, Brown has failed to raise a genuine issue as to whether 

Pitt Ohio has interfered with Brown’s FMLA rights.

Conclusion

For these reasons, the Court grants Pitt Ohio’s motion to dismiss [22], which the Court 

converted to a motion for summary judgment. This case is hereby terminated. 

SO ORDERED ENTER: 9/16/13

______________________________________

JOHN Z. LEE

 U.S. District Judge

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