The Honorable Edmond E. Chang, United States District 

Court for the Northern District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2890

MARION GORDON,

Plaintiff-Appellant,

v.

FEDEX FREIGHT, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 09-4065—Joe Billy McDade, Judge.

ARGUED JANUARY 9, 2012—DECIDED MARCH 22, 2012

Before FLAUM and KANNE, Circuit Judges, and

CHANG, District Judge.



KANNE, Circuit Judge. Marion Gordon suffered an onthe-job injury at one of FedEx’s service centers on October 14, 2008. The following day, two FedEx managers

made the decision to terminate Gordon’s position as part
2 No. 11-2890

of a national reduction in force. Gordon was informed of

this decision upon her return from medical leave on

November 11, 2008. Following her termination, Gordon

filed a workers’ compensation claim on December 15,

2008. In July 2009, Gordon sued FedEx for terminating

her in retaliation for exercising her workers’ compensation rights. Finding no genuine issue of material fact,

the district court granted summary judgment in favor

of FedEx. We affirm.

I. BACKGROUND

Gordon worked as an Over, Short, and Damaged

(“OS&D”) clerk at FedEx’s East Moline, Illinois, service

center from September 4, 2006, through her termination

on November 11, 2008. On October 14, 2008, Gordon

tripped and fell at the facility, injuring her wrist. She

reported her injury to FedEx regional manager, Jeff First.

A FedEx employee transported Gordon to the hospital,

where hospital staff diagnosed Gordon’s injury as a

“bruise” and discharged her with her arm in a sling.

Jeff Mallonee, manager of the East Moline facility,

picked Gordon up from the hospital to take her back to

the service center. According to Gordon’s deposition

testimony, Mallonee told her “you’re going to be off for

a long time.” Although Gordon agreed that she probably

would not be at work the next day, she told Mallonee

that she doubted she would be off a long time.

That same day, Mallonee directed Carolyn McDaniel, an

operations supervisor, to complete an accident report

on Gordon’s injury.
No. 11-2890 3

The following morning, Gordon called Mallonee at the

service center and informed him she would be seeking

additional treatment from her family doctor because

her wrist was not improving. That afternoon, Mallonee

met with First and FedEx managing director, Butch

Davis, to discuss downsizing at the East Moline center.

At the time, FedEx was implementing a nationwide

reduction in force which resulted in the elimination of

multiple positions across the country. Davis directed

First and Mallonee to develop a plan for eliminating

one full-time position in East Moline.

Three employees worked full-time at the East Moline

service center: two operations supervisors (McDaniel

and Jason Clark) and one OS&D clerk (Gordon). Mallonee

served as the service center manager at both the East

Moline and Bloomington facilities, which are approximately 120 miles apart. First and Mallonee decided it

was necessary to have two other supervisors at the

East Moline facility, which was open from 4:00 a.m. to

10:00 p.m., on days when Mallonee was absent. “[W]e

wanted to have a supervisor on site to open the facility

in the morning and to close the facility at night and, due

to the long hours the facility was open, one supervisor

could not perform both these tasks.” (First Decl. at 2.)

First and Mallonee believed McDaniel, who had

previously performed OS&D duties, could carry out

Gordon’s duties in conjunction with her supervisory

responsibilities. Accordingly, First and Mallonee determined that the OS&D clerk position was the most appropriate position for elimination because this move

would preserve the number of supervisors at the facility.
4 No. 11-2890

Gordon’s complaint also alleged violations of the Family 1

and Medical Leave Act , 29 U.S.C. § 2601 et seq., but Gordon

does not contest summary judgment on these claims.

Shortly after her injury, Gordon’s family doctor determined that her wrist was broken in two or three places

and required surgery. Thus, the decision to eliminate the

OS&D clerk position was not implemented until Gordon

returned from medical leave. When Gordon returned

to work on November 11, 2008, she met with Mallonee

and the human resources manager to discuss her termination, effective that day. Gordon’s duties were absorbed by McDaniel until McDaniel resigned in July

2009, at which time a former part-time employee took

over the OS&D duties.

Gordon filed her workers’ compensation claim on

December 15, 2008. She did not take any steps toward

filing a workers’ compensation claim prior to this date

and never discussed filing a workers’ compensation

claim with anyone at FedEx. On July 23, 2009, Gordon

filed suit for wrongful termination in state court,

alleging that FedEx retaliated against her because

she exercised her rights under the Illinois Workers’ Compensation Act (“IWCA”). FedEx removed the case to 1

federal court. On July 20, 2011, the district court granted

summary judgment in favor of FedEx.

II. ANALYSIS

We review a district court’s grant of summary judgment de novo, drawing all reasonable inferences and
No. 11-2890 5

viewing all facts in favor of the non-moving party. Marr

v. Bank of Am., N.A., 662 F.3d 963, 966 (7th Cir. 2011).

Summary judgment is appropriate only if “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). To survive summary judgment, the nonmoving party must establish some genuine issue for

trial such that a reasonable jury could return a verdict

in her favor. Makowski v. SmithAmundsen LLC, 662 F.3d

818, 822 (7th Cir. 2011) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).

“Generally, an at-will employee may be discharged

for any reason or for no reason at all.” Roger v. Yellow

Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994). In Illinois,

however, it is unlawful to terminate an employee in

retaliation for exercising her rights under the IWCA. See

Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 878-79

(Ill. 1981) (citing Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill.

1978)). To maintain a claim for retaliatory discharge,

an employee must prove: “(1) his status as an employee

of the defendant before injury; (2) his exercise of a right

granted by the Workers’ Compensation Act; and (3) a

causal relationship between his discharge and the

exercise of his right.” Roger, 21 F.3d at 149. FedEx does

not dispute that it terminated Gordon’s employment

and that she was an employee before her injury. Thus,

the only issues are whether Gordon can establish that

she exercised a right guaranteed by the IWCA and that

a causal relationship exists between her exercise of

this right and her termination.
6 No. 11-2890

A. Exercise of a Right

Illinois law recognizes several ways in which an employee may exercise a right under the IWCA. First, an

employee may file a workers’ compensation claim. See

Kelsay, 384 N.E.2d at 356. Here, although Gordon eventually filed a workers’ compensation claim, and thus exercised a right under the IWCA, she did not file her claim

prior to her termination. Therefore, despite deposition

testimony to the contrary, the filing of her claim could

not have been the cause of her termination and this exercise of a right does not logically support her retaliatory discharge cause of action.

But even if there has been no filing of a claim,

Illinois courts recognize that the limited tort of retaliatory discharge may apply where a plaintiff is preemptively fired to prevent such a filing. See Richardson v. Ill.

Bell Tel. Co., 510 N.E.2d 134, 136-37 (Ill. App. Ct. 1987).

“Factual support that the employer was informed or in

some way found out about the plaintiff’s intent to

pursue relief under the Act is essential to a retaliatory

discharge action.” Roger, 21 F.3d at 149-50. The

district court held that Gordon did not meet this

burden because, at the time FedEx made the decision

to terminate Gordon, no one knew the extent of her

injuries and Gordon expected to be back to work within

a day or two. In addition, Gordon never expressed an

intent to file a workers’ compensation claim and had

not filed one previously. Although the district court

relied on these facts in granting summary judgment in

favor of FedEx, we need not address this issue further
No. 11-2890 7

because Gordon’s claim clearly satisfies a third approach

recognized by Illinois courts.

Under this third approach, an employee exercises a

right under the IWCA merely by requesting and seeking

medical attention. See Hinthorn v. Roland’s of Bloomington, Inc., 519 N.E.2d 909 (Ill. 1988). In Hinthorn, the

Illinois Supreme Court held that “the overriding purpose of the [IWCA] is to protect injured employees by

ensuring the availability of medical treatment, by

shifting the financial burden of such treatment to the

employer.” Id. at 913. “Requesting and seeking medical

attention . . . is only the crucial first step in exercising

rights under the Workers’ Compensation Act.” Id. Thus,

an employee who was told to seek other employment

after she informed the vice president of the company of

her back injury and intent to seek medical attention had

a claim for retaliatory discharge. Id. at 910-13.

After Gordon sustained her injury, she reported to

First and requested to go to the hospital. The following

day, Gordon called the service center and informed

Mallonee that she would be seeking additional medical

attention from her family doctor. In light of these facts,

First and Mallonee were surely aware that Gordon

was actively requesting and seeking medical attention.

Under Hinthorn, Gordon has met her burden of demonstrating the exercise of a right under the IWCA. Accordingly, we must determine whether Gordon can establish

a causal relationship between her protected activity

and termination.
8 No. 11-2890

B. Causal Relationship

In resolving retaliatory discharge claims, Illinois does

not apply the McDonnell Douglas burden-shifting framework commonly applied in federal retaliation cases. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630-31 (7th

Cir. 2011). Instead, to establish a causal relationship,

Gordon “must affirmatively show that the discharge

was primarily in retaliation for [her] exercise of a

protected right.” Roger, 21 F.3d at 149. To do so, Gordon

must “proffer[] sufficient evidence from which a reasonable jury could infer that the employer was

improperly motivated.” Id. Only after Gordon has met

this burden is FedEx required to provide a legitimate

reason for its decision to terminate her. See id. “[T]he

ultimate issue to be decided is the employer’s motive

in discharging the employee.” Hartlein v. Ill. Power Co.,

601 N.E.2d 720, 730 (Ill. 1992).

Gordon puts forth the following evidence for finding

a causal link between her termination and her right to

seek medical attention: (1) the plan prior to Gordon’s

injury was to eliminate a supervisor position; (2) the day

after her injury, First and Mallonee changed the plan to

eliminate Gordon’s position instead; and (3) despite

“eliminating” Gordon’s position, her duties were passed

on to a supervisor and later to a part-time employee

who took over Gordon’s prior position. Gordon asserts

that we should also consider the temporal proximity of

the events in question.

Gordon’s assertion that, prior to her injury, the plan

was to eliminate a supervisor position is based on a
No. 11-2890 9

rumor she heard from McDaniel. McDaniel acknowledges that she heard this rumor from someone outside

the East Moline facility and she could not remember

who gave her the information. She further stated in her

deposition that “I don’t know that they knew that for

a fact. They just told me that that’s what they were

told.” (McDaniel Dep. at 28.) FedEx argues that this

alleged “rumor” is inadmissible hearsay, and we agree.

Under the Federal Rules of Evidence, hearsay is defined

as an out-of-court statement offered by a party “to

prove the truth of the matter asserted.” Fed. R. Evid.

801(c)(2). Such statements, unless they satisfy one of

the many exceptions to the rule, are inadmissible at

trial and may not be used to create a genuine issue of

material fact at the summary judgment stage. See Fed. R.

Evid. 802; Carlisle v. Deere & Co., 576 F.3d 649, 655 (7th

Cir. 2009). Here, because the rumor is being offered for

the truth of the matter asserted and does not meet one

of the hearsay exceptions, it is inadmissible. Accordingly,

Gordon cannot rely on this evidence in arguing that

the original plan was to terminate a supervisor position and that this plan changed following her injury.

Gordon’s strongest argument is that a jury could infer

an improper motive given the short time span between

her injury and FedEx’s decision to eliminate her position. 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 729, 736 (7th Cir. 2011);
10 No. 11-2890

Roger, 21 F.3d at 149 (“The causality requirement calls

for more than a sequential connection.”). In this case,

Gordon fell and sought medical treatment just one day

prior to First and Mallonee’s decision to eliminate her

position. This fact is certainly favorable to Gordon’s

case but, on its own, is not enough for a jury to infer

that FedEx was improperly motivated.

Gordon’s final allegation of improper motivation rests

on the fact that her OS&D duties were not eliminated

but absorbed by another employee. Gordon likens her

case to mini-reduction-in-force cases, which require a

plaintiff to demonstrate that “(1) she is a member of

a protected class, (2) she was performing her job satisfactorily, (3) she suffered a materially adverse employment action, and (4) her job duties were absorbed by

employees who were not members of her protected class.”

Johal v. Little Lady Foods, Inc., 434 F.3d 943, 946 (7th

Cir. 2006); accord Petts v. Rockledge Furniture LLC, 534

F.3d 715, 725 (7th Cir. 2008). The burden then shifts to

the employer to provide legitimate, nondiscriminatory

reasons for its actions, and the plaintiff may attempt to

show that such reasons are pretextual. Johal, 434 F.3d

at 946. Gordon acknowledges that the burden-shifting

framework applied in mini-reduction-in-force cases

does not apply here, but believes such cases may be

instructive.

But even in light of such cases, FedEx has presented

legitimate, nondiscriminatory reasons for its actions. It

is undisputed that FedEx was implementing staff reductions nationwide throughout its facilities. At the
No. 11-2890 11

East Moline facility, FedEx management had to

eliminate a full-time position. FedEx never stated that

it eliminated Gordon’s position because her job duties

were no longer necessary; rather, FedEx had to

eliminate an employee position as a cost-cutting measure. Not wanting to reduce the number of supervisors at the facility, and believing McDaniel could

handle OS&D duties in conjunction with her own responsibilities, FedEx eliminated the only full-time nonsupervisory position, which happened to be Gordon’s.

FedEx has presented a “valid basis, which is not

pretextual, for discharging [Gordon].” Hartlein, 601

N.E.2d at 728. Under Illinois law, this is enough to

defeat Gordon’s claim. Accordingly, the district court

did not err in finding that Gordon did not present

a genuine issue of material fact for trial.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.

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