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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

LAFAYETTE DIVISION 

PHILLIP GUERNSEY 

 Plaintiff, 

 vs. 

CITY OF LAFAYETTE. 

 Defendant. 

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NO. 4:13–CV-00086 

 

OPINION AND ORDER

 This matter is before the Court on the Defendant’s Motion for 

Summary Judgment, filed by Defendant City of Lafayette (“City”) on 

May 11, 2015 (DE #31), and Plaintiff Phillip Guernsey’s 

(“Guernsey”) Motion for Summary Judgment on Defendant’s Liability 

under Count 3, filed on May 11, 2015 (DE #33). For the reasons 

set forth below, the City’s motion for summary judgment (DE #31) 

is GRANTED, and Guernsey’s motion for summary judgment (DE #33) is 

DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. 

BACKGROUND 

On February 1, 2013, the City terminated Guernsey’s 

employment as a laborer in its Street Department, stating that its 

decision was based on Guernsey’s history of taking excessive 
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amounts of sick leave. Guernsey filed this action against the 

City, asserting that he was wrongfully terminated in violation of 

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et 

seq., the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et 

seq., and the Consolidated Omnibus Budget Reconciliation Act 

(“COBRA”), 29 U.S.C. § 1161 et seq. The City denies that 

Guernsey’s termination was wrongful, or that it violated the ADA, 

FMLA, or COBRA. Both the City and Guernsey filed motions for 

summary judgment. The motions have been fully briefed and are 

ripe for adjudication. 

DISCUSSION 

Summary judgment must be granted when “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). A genuine 

dispute of material fact exists when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the 

parties makes summary judgment inappropriate; “[o]nly disputes 

over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary 

judgment.” Id. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 
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in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). 

A party opposing a properly supported summary judgment motion 

may not rely on allegations in his own pleading but rather must 

“marshal and present the court with the evidence [he] contends 

will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 

F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere 

speculation or conjecture will not suffice.” Stephens v. Erickson, 

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the 

nonmoving party fails to establish the existence of an essential 

element on which he bears the burden of proof at trial, summary 

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th 

Cir. 2006). 

Facts 

 Guernsey began working as a laborer in the City’s Sanitation 

Department in 1984. In 1985, he was pinned between a sanitation 

truck and a building, which injured his lower back. Over the next 

few years, Guernsey had several other on-the-job injuries, 

including injuries to his back and knee, for which he received 

treatment under workers compensation. In 1990, doctors 

recommended that Guernsey be reassigned to another position 

because his knee pain was aggravated by the high steps required to 

collect trash. The City reassigned Guernsey to the Street 

Department, where he worked as a laborer for approximately three 
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years. Guernsey requested and received a transfer to the Fleet 

Maintenance Department, but after Guernsey “missed a couple of 

days” of work, the department supervisor transferred Guernsey back 

to the Street Department. (DE #34-16 at 9.) 

Guernsey’s job duties as laborer in the Street Department 

included picking up brush, leaves, and large items, and patching 

and paving streets. The job required that Guernsey be on-site to 

perform his duties; it could not be performed from his home. 

Guernsey testified that he was able to perform his duties as 

laborer, even with his prior injuries. He never told his 

supervisors that he could not perform a job assignment. He admits 

that while he “never turned down a job assignment,” he “would 

sometimes need a short time off work if [he] overexerted [himself], 

in order to recover.” (DE #41 at 5.) Each day, the Street 

Department supervisors prepared a list of job assignments to be 

completed the following day, and assigned employees to those 

assignments. Whenever Guernsey called in sick, the supervisor 

would “switch people around,” and other employees would “cover” 

his job assignments. (DE #34-16 at 21.) 

Guernsey’s Injuries 

Between 1990 and 2012, Guernsey reported twelve on-the-job 

injuries, including injuries to his back and knee, which were all 

treated under workers compensation. By the mid-1990s, Guernsey 

had been diagnosed with chronic knee, shoulder, and back pain, 
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degenerative disc disease, spurring in the spine, and narrowing of 

the spine. These conditions limit his ability to walk long 

distances, run, lift, stand, bend, stoop, and climb stairs. 

Guernsey’s position as laborer did not require him to climb stairs 

or walk long distances. His position occasionally required him to 

stoop, lift, bend, or sit or stand for long periods of time. 

Guernsey admits that he never had a problem with completing his 

job duties even when they included stooping, bending, lifting, or 

standing for a long period of time. Guernsey experienced back 

soreness almost every time after he worked the blacktop machine, 

and every time after he sealed cracks in the street. He also 

experienced soreness in his back and shoulder after collecting 

bags of grass clippings. Guernsey had no way to predict which 

days he would need to call in sick because of soreness.1

The last injury Guernsey reported to the City was in May 2012. 

Guernsey took off work from May 1, 2012, to July 16, 2012, for a 

knee injury he had incurred in November 2011. On July 16, 2012, 

Guernsey’s doctor reported that Guernsey had “excellent motion, 

excellent stability, excellent tracking, and excellent strength,” 

                                                            

1 According to the City, Guernsey admitted in his deposition that 

“no accommodation . . . would have allowed him to perform his job 

duties on the days he experienced soreness. [Exhibit 30, p. 49 

lines 9-18] The only option was to allow Guernsey to sporadically, 

and unpredictably miss work. [Exhibit 30, p. 49, line 19 - p. 50, 

line 16].” (DE #32 at 12.) However, the City does not provide 

the Court with these pages of Guernsey’s deposition testimony. 

(See DE #34-16.)
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and released him to return to “[f]ull activity with no limitations” 

with “no need for follow up.” (DE #34-18.) Guernsey did not 

advise the City of any restrictions, limitations, or health 

conditions between July 16, 2012, and February 1, 2013. 

On October 9, 2012, Guernsey underwent a magnetic resonance 

imaging (“MRI”) scan on his lumbar spine. The MRI report dated 

October 10, 2012, indicates mild to moderate degenerative changes 

to Guernsey’s lumbar spine. (DE #41 at 9-10.) 

Sick Leave 

The City’s Personnel Policy Manual (“City handbook”) states 

that sick leave is a benefit provided “to protect against loss of 

income during periods of illness/injury.” (DE #34-25 at 2.) 

Regular full-time employees accrue one sick day per month for a 

maximum of 36 days. The City handbook explains that “[p]atterns 

of sick leave usage immediately prior to or subsequent to holidays, 

vacations, days off and/or weekends, as well as excessive sick 

leave usage may result in sick leave denial and appropriate 

disciplinary action.” (Id. at 3.) 

Guernsey has a history of sick leave use. In 2009, Guernsey 

called in sick 11 times, ten of which were around a weekend or 

vacation day. In 2010, he called in sick 13 times, six of which 

were around a weekend or vacation day. In 2011, he called in sick 

15 times, 13 of which were around a weekend or vacation day. In 

2012, he called in sick 11 times, seven of which were around a 
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weekend or vacation day. (DE #34-17 at 3.) Between 2003 and 2012, 

Guernsey used an average of 13.3 sick days per year, while all 

other Street Department employees used an average of 5.6 days per 

year. (Id. at 2.) From 1995 to 2011, Guernsey was reprimanded 12 

times for excessive absenteeism and/or improper use of sick leave. 

Guernsey never exceeded his allotted sick leave. 

Guernsey attests that he has chronic conditions that cause 

him to suffer short-term incapacity from time to time, and for 

which he periodically sees a health provider. During the last two 

years of his employment with the City, most of the instances in 

which Guernsey called in sick were related to his “back issues.” 

(DE #41 at 4.) When he took sick days, Guernsey told his supervisor 

that he was having “back problems.” (Id.) When Guernsey visited 

a doctor on one of his sick days, he took a doctor’s note to work. 

The doctor’s notes did not indicate why Guernsey was seen by the 

doctor or what treatment was provided. Guernsey did not provide 

the City with additional information, even when his supervisor 

requested it, “because of the HIPAA laws.” (DE #34-16 at 29.) 

Guernsey understood that, “[u]nless it’s a work-related injury[,] 

your work don’t need to know what is wrong with you.” (Id. at 

28.) 

FMLA Leave 

During Guernsey’s employment, “The Federal Complete 

Compliance Poster” was posted inside the Street Department garage. 
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The poster included information about the FMLA and other federal 

employment-related statutes. The poster’s “Use of Leave” section 

states in part that “[a]n employee does not need to use [the FMLA] 

leave entitlement in one block. Leave can be taken intermittently 

or on a reduced leave schedule when medically necessary.” (DE 

#34-9.) The City handbook mentions seeking “intermittent leave” 

under the FMLA, but does not address how such leave is to be used. 

(DE #41 at 18.) 

Guernsey applied for FMLA leave twice while employed by the 

City. In 2003, he requested and received FMLA leave due to his 

wife’s hospitalization.2 In 2004, he requested and received FMLA 

leave due to a wrist injury. Guernsey never requested FMLA leave 

for chronic pain issues. The City never inquired as to whether 

Guernsey might qualify for FMLA leave to address his absences. 

Termination 

On January 16, 2013, Guernsey texted his supervisor that his 

back was “still bothering” him and that he wanted to take a 

vacation day. (DE #34-4.) Guernsey’s request to take this sick 

day prompted the Street Department’s operations manager to review 

his absences. The operations manager determined that Guernsey had 

received repeated warnings related to his absenteeism and had used 

                                                            

2 The parties dispute whether Guernsey took intermittent FMLA leave 

for his wife’s hospitalization in 2003. The Court finds this issue 

of fact to be immaterial.
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more sick leave than any other Street Department employee, and 

that the majority of his sick days were around a weekend or 

scheduled vacation day. (DE #34-22 at 1.) The City did not 

investigate to see what Guernsey was doing during his sick days, 

nor did it deny him the requested leave or require him to submit 

additional proof of his need for time off. 

On February 1, 2013, the City terminated Guernsey’s 

employment based on “improper uses of sick leave,” “[f]ailures to 

follow established work procedures and policies,” and “incident[s] 

or circumstance[s] which will prevent an employee from being able 

to fulfill all of his/her duties.” (DE #34-21 at 1.) At the 

meeting informing Guernsey of his termination, the City provided 

Guernsey with a summary of the incidents, his prior work and 

disciplinary history, and statistics supporting its conclusion 

regarding his use of sick leave. Guernsey did not respond with 

any reason or explanation for his use of sick days at that time. 

The City did not give Guernsey an exit interview after his 

termination. 

Guernsey challenged his termination of employment, which 

prompted the Board of Works to hold a grievance hearing. At the 

hearing, Guernsey’s union representative argued that that Guernsey 

would have taken FMLA leave if he had known he could take it 

intermittently. The City responded that Guernsey was aware of the 

FMLA process because he had requested FMLA leave in the past, and 
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that the City did not have information to suggest that his absences 

were covered by the FMLA. The Board of Works affirmed Guernsey’s 

termination of employment.3

Continuation of Insurance Coverage 

During his employment, Guernsey and his family participated 

in the City’s employee health insurance plan. Due to an oversight, 

the City did not terminate Guernsey’s insurance benefits on the 

date of his termination of employment. The City continued to pay 

for health, dental, and vision insurance for Guernsey and his 

dependents until June 21, 2013. On that date, the City discovered 

the error and directed the IACT Medical Trust (“IACT”) to terminate 

Guernsey’s insurance coverage. IACT “administers the City’s 

benefit plan and is the ‘plan administrator.’” (DE #34-17 at 5.) 

IACT informed United Healthcare of the termination of Guernsey’s 

insurance coverage. On August 26, 2013, United Healthcare sent 

Guernsey a notice of his right to elect COBRA continuation coverage 

(“election notice”). The election notice stated a “Qualification 

Date” of June 21, 2013. (DE #34-12.) 

After Guernsey’s termination of employment, Guernsey and his 

wife (the “Guernseys”) made numerous attempts to determine when he 

                                                            

3 The parties dispute whether the City offered Guernsey his prior 

position in the Street Department with back pay and benefits, and 

whether Guernsey declined the offer. The Court finds these issues 

of fact to be immaterial for the purposes of the instant motions 

for summary judgment.
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would receive the paperwork for electing continuation of insurance 

coverage. (DE #33-2 at 1.) Guernsey states that after he received 

the election notice, he was confused about whether he owed premiums 

for the February 1, 2013 - June 21, 2013 time period, and that 

City did not respond to his inquiries about this. Guernsey elected 

not to maintain health insurance because he “was unable to afford 

the cost of bringing the payments current so that [his] coverage 

could be maintained.” (Id.) Guernsey insists that if he had known 

that he was not required to pay the health insurance for the 

February 1, 2013 - June 21, 2013 time period, he would have elected 

health coverage, and paid the premiums with his unemployment 

benefits and the assistance of family members. 

Guernsey elected to maintain vision and dental insurance, and 

paid the premiums for this insurance through October 31, 2013. 

The Guernseys mistakenly believed that this payment provided them 

with insurance coverage through December 2013. In December 2013, 

United Healthcare sent Guernsey a bill for an unpaid balance plus 

a regular monthly premium payment for January 2014 coverage. On 

January 10, 2014, the Guernseys paid only a portion of the amount 

due. Three days later, United Healthcare terminated the Guernseys’ 

insurance coverage as of October 31, 2013, for nonpayment. 
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Analysis 

ADA Claims 

Count I of the Amended Complaint alleges that Guernsey was 

terminated due to his disability in violation of the ADA. Under 

the ADA, as amended by the ADA Amendments Act of 2008, it is 

unlawful for an employer to “discriminate against a qualified 

individual on the basis of disability” in regard to the “discharge 

of employees.” 42 U.S.C. § 12112(a). Guernsey could proceed under 

either the direct or indirect method of proof to establish his 

claim. Hooper v. Proctor Health Care Inc., 804 F.3d 846, 853 (7th 

Cir. 2015). “Under the direct method, he must show that (1) he is 

disabled within the meaning of the ADA, (2) he was qualified to 

perform the essential functions of the job with or without 

accommodation, and (3) he was terminated because of his 

disability.” Id. (citation omitted). To establish the third 

prong, Guernsey must show that “his disability was a ‘but for’ 

cause of his termination, which can be demonstrated through direct 

or circumstantial evidence, with circumstantial evidence 

encompassing, among other things, suspicious timing and pretext 

for the adverse employment action.” Id. (citations omitted). 

Under the indirect method, Guernsey may create a presumption 

of discrimination by establishing that “(1) he is disabled within 

the meaning of the ADA, (2) he was meeting [the City’s] legitimate 

expectations, (3) he suffered an adverse employment action, and 
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(4) [the City] treated similarly situated, non-disabled employees 

more favorably.” Id. (citation omitted). If Guernsey establishes 

a prima facie case, the City must provide “evidence showing a 

legitimate, nondiscriminatory reason for the employment action.” 

Id. (citation omitted). Guernsey must then present evidence 

demonstrating that the City’s stated reason is pretextual. Id. 

(citation omitted). 

The City maintains that Guernsey does not allege any direct 

evidence of discrimination, so is proceeding under the indirect 

method. The Court agrees. In his response brief, Guernsey does 

not specifically identify his method of proof, but his argument 

and supporting case law indicate that he intends to proceed under 

the indirect method. He argues that issues of fact preclude 

summary judgment as to whether he can make a prima facie case, and 

maintains that sufficient evidence of pretext exists to avoid 

summary judgment.4 In support, Guernsey cites case law addressing 

the indirect method of proving discrimination. (DE #40 at 11 

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 

120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (applying the framework 

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 

                                                            

4 The Court notes that Guernsey only identifies three elements of 

a prima facie case of ADA discrimination, and omits the fourth 

element requiring that similarly situated employees were treated 

more favorably than the plaintiff. (DE #40 at 11 (citing no 

supporting case law).) 
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1817, 36 L. Ed. 2d 668 (1973), to an age discrimination claim).) 

Guernsey contends that the City’s proffered reason for terminating 

him was pretextual, and that its true motivation for the 

termination was based on Guernsey’s need to take such sick leave. 

(Id. at 12.) While evidence of pretext may support a finding of 

circumstantial evidence of discrimination under the direct method 

of proof, see Hooper, 804 F.3d at 853, Guernsey does not indicate 

that he is proceeding under this method. As such, the Court finds 

that Guernsey proceeds solely under the indirect method of proof. 

To the extent that Guernsey intended to proceed under the direct 

method, he has waived such argument by failing to address this 

method of proof in his response brief. See Weber v. Univs. 

Research Ass'n, Inc., 621 F.3d 589, 593 (7th Cir. 2010) (finding 

direct method of proving discrimination waived where plaintiff 

mentioned suspicious timing, a class of circumstantial evidence 

that could support a direct method argument, but “did nothing more 

to indicate to the district court that she was pursuing the direct 

method” of proof); Timm v. Ill. Dep't of Corr., 335 Fed. Appx. 

637, 642 (7th Cir. 2009) (finding direct method of proving 

discrimination waived where plaintiff failed to raise a direct 

method argument, even though circumstantial evidence supporting a 

direct method theory was presented to the district court). 

Under the indirect method of proof, Guernsey must demonstrate 

that he is disabled within the meaning of the ADA. The City argues 
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that it is entitled to summary judgment on Count I because Guernsey 

was not a qualified individual with a disability at the time of 

his termination. A “disability” is defined in part as a “physical 

or mental impairment that substantially limits one or more major 

life activities of such individual.” 42 U.S.C. § 12102(1)(A). 

The type of “major life activities” that must be substantially 

limited include “performing manual tasks, . . . walking, standing, 

lifting, bending, . . . and working.” 42 U.S.C. § 12102(2). The 

term “substantially limits” must be “construed broadly in favor of 

expansive coverage, to the maximum extent permitted by the terms 

of the ADA.” 29 C.F.R. § 1630.2(j)(1)(i). “An impairment need 

not prevent, or significantly or severely restrict, the individual 

from performing a major life activity in order to be considered 

substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). The 

question is whether an individual is limited “as compared to most 

people in the general population.” Id. 

The City maintains that Guernsey was not disabled under the 

ADA because he was not substantially limited in performing one or 

more major life activities. While the City acknowledges that 

Guernsey has difficulty with walking, running, lifting, standing, 

bending, stooping, and climbing stairs, he testified that he could 

perform any job assigned to him as a laborer in the Street 

Department. After Guernsey’s last reported injury, his doctor 

opined that Guernsey had “excellent motion, excellent stability, 
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excellent tracking, and excellent strength,” and that he could 

return to full activity with no limitations and no follow-up on 

July 16, 2012. The City contends that the back soreness Guernsey 

experienced after performing certain work activities is not a 

substantial limitation as compared to most people in the general 

population. 

Guernsey responds that genuine issues of material fact exist 

as to whether he was disabled under the ADA. He points to the 

fact that he has had to take work off due to back pain since he 

was injured in 1985, when he was pinned between a truck and a 

building. He asserts that the City knew of his back and knee 

injuries because his initial injuries and follow-up care were 

handled by workers compensation insurance, and because he informed 

his supervisor of his back pain when he called in sick. Guernsey 

proffers medical records from 1990 and earlier, but it is unclear 

how these records support Guernsey’s alleged disability when he 

was terminated in 2013, given that the records precede his 

termination by over twenty years. He also proffers an October 

2012 MRI report that indicates degenerative changes to Guernsey’s 

lumbar spine. This report was prepared several months after the 

July 2012 medical opinion that Guernsey had “excellent motion” and 

could return to full activity without limitations. 

It is undisputed that Guernsey has been diagnosed with chronic 

back and knee pain, degenerative disc disease, spurring in the 
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spine, and narrowing of the spine, and that these conditions limit 

his ability to walk, lift, stand, and bend. See 42 U.S.C. § 

12102(2) (identifying walking, lifting, standing, and bending as 

“major life activities”). While Guernsey testified that he never 

turned down a work assignment, he also attests that he “would 

sometimes need a short time off work if [he] overexerted [himself], 

in order to recover.” (DE #41 at 5.) In light of the expansive 

scope of the definition of “substantial limitation” of a major 

life activity, and viewing the facts in the light most favorable 

to Guernsey, the Court finds that Guernsey has presented a triable 

issue of material fact as to whether he is disabled under the ADA.

The City also argues that Guernsey was not a “qualified 

individual” within the meaning of the ADA because he was not able 

to “perform the essential functions of the employment position” 

“with or without reasonable accommodation” at the time of his 

termination. 42 U.S.C. § 12111(8); see Basden v. Prof'l Transp., 

Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (whether person is a 

qualified individual is examined as of the time of the adverse 

employment decision). The ADA requires an employer to “make 

reasonable accommodations only if accommodation would permit the 

disabled employee to perform her job.” Gile v. United Airlines, 

Inc., 213 F.3d 365, 372 (7th Cir. 2000).5

                                                            

5 The City asserts that Guernsey admitted that no accommodation 

would have allowed him to perform his job duties on the days he 
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“An employer is generally permitted to treat regular 

attendance as an essential job requirement and need not accommodate 

erratic or unreliable attendance.” Basden, 714 F.3d at 1037 

(citing EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948-49 

(7th Cir. 2001)). “[I]n most instances the ADA does not protect 

persons who have erratic, unexplained absences, even when those 

absences are a result of a disability.” Kennedy v. United States 

Postal Serv., No. 2:10–CV–0279, 2014 WL 1047820, at *11 (N.D. Ind. 

Mar. 17, 2014) (quoting Waggoner v. Olin Corp., 169 F.3d 481, 484 

(7th Cir. 1999)). Here, it is undisputed that Guernsey must be 

on-site at work to perform his job duties, and that other employees 

must cover for Guernsey when he calls in sick. It is also 

undisputed that Guernsey cannot predict on which days he would 

need to call in sick due to soreness. 

Guernsey insists that genuine issues of material fact exist 

regarding whether he was able to perform his essential job duties, 

despite his limitations, because he never turned down an 

assignment, and “could perform all duties related to his job 

provided that he was granted occasional time off to recover if 

overexerted.” (DE #40 at 11.) Courts in this circuit have found 

                                                            

felt sore. (DE #32 at 23.) However, as noted above, the record 

does not include this testimony. The Court “will not credit those 

parts of [the City’s] version of the facts that are not supported 

by any evidence in the record.” Bluestein v. Central Wis. 

Anesthesiology, S.C., 769 F.3d 944, 949 n.1 (7th Cir. 2014). 
‐19‐ 

that it “is unreasonable to expect an employer to tolerate 

unannounced changes to an employee’s schedule for an indefinite 

period.” Fisher v. Vizioncore, Inc., No. Civ. A. 09 C 6853, 2010 

WL 4932612, at *4 (N.D. Ill. Nov. 30, 2010) (citing, among others, 

Yellow Freight Sys., 253 F.3d at 950 (employee’s request for “an 

open-ended, unlimited amount of ‘sick days, if needed[,] without 

being penalized’” was not a reasonable accommodation) (alteration 

in original) and Waggoner, 169 F.3d at 484 (employee’s request for 

“an ‘unpredictable’ amount of time off from work should her 

symptoms so demand” was not a reasonable accommodation)). However, 

courts have also noted that “[t]ime off may be an apt accommodation 

for intermittent conditions. [For example,] [s]omeone with 

arthritis or lupus may be able to do a given job even if, for brief 

periods the inflammation is so painful that the person must stay 

home.” Kennedy, 2014 WL 1047820, at *11 (quoting Byrne v. Avon 

Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003)). Here, the record 

indicates that Guernsey took 11 sick days in 2012, and took an 

average of 13.3 sick days per year between 2003 and 2012, but never 

exceeded his allotted sick leave. The Court cannot conclude as a 

matter of law that the number of sick days taken by Guernsey rises 

to the level of “erratic or unreliable attendance” that an employer 

“need not accommodate” under the ADA. Basden, 714 F.3d at 1037; 

cf. Yellow Freight Sys., 253 F.3d at 946 (employee who called in 

sick every day for three months, in addition to other absences, in 
‐20‐ 

the year he was terminated was not a “qualified individual” under 

the ADA); Waggoner, 169 F.3d at 482, 484 (employee who missed work 

or was late for work 40 times in a 14-month period was not a 

“qualified individual”). 

However, even if Guernsey was a qualified individual with a 

disability within the meaning of the ADA, he fails to present a 

prima facie case of discrimination because he does not identify 

any similarly situated employees who were treated more favorably 

than him. Antonetti v. Abbot Labs., 563 F.3d 587, 592 (7th Cir. 

2009) (“Without a similarly situated employee, Plaintiffs cannot 

present a prima facie case and their claim must fail.”). Guernsey 

does not provide evidence of any other employee with a similar 

history of sick leave who was not terminated. Nor does the record 

show that any employee was similarly situated to Guernsey. The 

only evidence presented regarding other employees shows that 

between 2003 and 2012, all other Street Department employees used 

an average of 5.6 sick days per year, while Guernsey used an 

average of 13.3 sick days per year. No genuine issue of material 

fact exists as to whether other similarly situated employees were 

treated more favorably than Guernsey. Because Guernsey fails to 

make a prima facie case of discrimination, the Court need not 

address the City’s stated reason for terminating Guernsey, or 

whether such reason was pretextual. 
‐21‐ 

Guernsey fails to raise a genuine issue of material fact as 

to whether similarly situated employees were treated more 

favorably than he was. Therefore, the Court grants the City’s 

motion for summary judgment as to Count I. 

FMLA Claim 

Count II of the Amended Complaint alleges that the City 

violated the FMLA by firing Guernsey for an absence that qualified 

as medical leave under the FMLA. The FMLA allows an eligible 

employee to take unpaid leave in certain circumstances when the 

employee becomes unable to perform his job duties due to a “serious 

health condition.” 29 U.S.C. § 2612(a)(1)(D). To establish a 

violation of rights under the FMLA, a plaintiff must show that: 

(1) he was eligible for FMLA protection; (2) his employer was 

covered by the FMLA; (3) he was entitled to FMLA leave; (4) he 

provided sufficient notice of his intent to take leave; and (5) 

his employer improperly denied benefits to which he was entitled. 

Ryl–Kuchar v. Care Ctrs., Inc., 565 F.3d 1027, 1030 (7th Cir. 

2009). The parties do not contest that Guernsey was an eligible 

employee under the FMLA, that the City is covered by the FMLA, or 

that Guernsey never requested FMLA leave for his absences due to 

his back pain. At issue in this case is whether Guernsey suffered 

from a serious health condition. 

Guernsey maintains that he was entitled to FMLA leave because 

he had serious health conditions involving continuing treatment by 
‐22‐ 

a health care provider that was a chronic condition. A “serious 

health condition” is defined by the FMLA as “an illness, injury, 

impairment, or physical or mental condition that involves - (A) 

inpatient care in a hospital, hospice, or residential medical care 

facility; or (B) continuing treatment by a healthcare provider.” 

29 U.S.C. § 2611(11). It is undisputed that Guernsey did not 

require “inpatient care.” Thus, the Court must determine whether 

evidence exists to show that Guernsey received continuing 

treatment by a health care provider. A serious health condition 

involving continuing treatment by a health care provider includes 

a chronic condition, defined as one which: 

(1) Requires periodic visits (defined as at least twice 

a year) for treatment by a health care provider, or by 

a nurse under direct supervision of a health care 

provider; 

(2) Continues over an extended period of time (including 

recurring episodes of a single underlying condition); 

and 

(3) May cause episodic rather than a continuing period 

of incapacity (e.g., asthma, diabetes, epilepsy, etc.). 

29 C.F.R. § 825.115(c). Leave is qualified for periods of 

incapacity or for treatment for such incapacity due to a chronic 

serious health condition. Id. “Whether an illness or injury 

constitutes a ‘serious health condition’ under the FMLA is a legal 

question that an employee may not sidestep in the context of 

summary judgment merely by alleging [his] condition to be so.” 

Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591 (7th Cir. 2008) 

(citation omitted). 
‐23‐ 

The City argues that Guernsey’s FMLA claim fails as a matter 

of law because he fails to offer competent medical evidence of his 

condition on January 16, 2013. According to the City, Guernsey’s 

statement that his back was “bothering” him on January 16, 2013, 

is insufficient to prove that he was incapacitated on that day. 

Bell v. Jewel Food Store, 83 F. Supp. 2d 951, 959 (N.D. Ill. 2000). 

However, “[a]bsences attributable to incapacity [due to a chronic 

serious health condition] qualify for FMLA leave even though the 

employee . . . does not receive treatment from a health care 

provider during the absence.” 29 C.F.R. § 825.115(f). An employee 

with a chronic serious health condition might not visit a health 

care provider during a flare-up of that condition. Hansen v. 

Fincantieri Marine Group, LLC, 763 F.3d 832, 839 (7th Cir. 2014); 

see 29 C.F.R. § 825.115(f) (citing as examples absences due to 

asthma attacks, severe allergies, and morning sickness). In such 

case, “[t]here would be no medical testimony about the incapacity 

on that particular day and the only available evidence to prove 

incapacity would be lay testimony. Thus, the regulations support 

the conclusion that incapacity can be established by lay testimony. 

. . .” Hansen, 763 F.3d at 839. Here, Guernsey texted his 

supervisor that his back was “still bothering” him and requested 

the day off on January 16, 2013. In his affidavit, Guernsey 

asserts that he has chronic issues that “cause [him] to suffer 

short-term incapacity from time to time,” that his “back problems” 
‐24‐ 

are permanent or long-term, that he has been under the supervision 

of a healthcare provider for them, and that most of his absences 

in the last two years of his employment were related to his “back 

issues.” (DE #41 at 4.) Considering the evidence in the light 

most favorable to Guernsey, genuine issues of material fact exist 

as to whether he was incapacitated on January 16, 2013.

The City also contends that Guernsey has not offered evidence 

of a chronic serious health condition that requires “periodic 

visits (defined as at least twice a year) for treatment by a health 

care provider.” 29 C.F.R. § 825.115(c). Guernsey attests that he 

has chronic issues for which he “periodically see[s] a health 

provider,” and that he has “been under the supervision of a health 

care provider” for his back problems. (DE #41 at 4.) Guernsey 

proffers an October 2012 MRI report indicating degenerative 

changes to his lumbar spine, as well as a few medical records from 

1988 and 1990. (DE #41 at 7-14.) The record also includes two 

doctor’s notes from 2012 indicating that Guernsey had seen a doctor 

and could return to work. (DE #34-3 at 1, 8.) While these doctor’s 

notes do not provide information regarding Guernsey’s medical 

condition, his affidavit explains that most of his absences during 

his last two years of employment related to his back problems. 

Considering this evidence in the light most favorable to Guernsey, 

the Court finds that a genuine issue of material fact exists as to 
‐25‐ 

whether Guernsey has a chronic serious health condition that 

requires periodic visits for treatment by a health care provider. 

The City also argues that Guernsey did not provide sufficient 

information to inform the City that he had an FMLA-qualifying 

event. Under the FMLA, “[t]he employee’s notice obligation is 

satisfied so long as he provides information sufficient to show 

that he likely has an FMLA-qualifying condition.” Burnett v. LFW 

Inc., 472 F.3d 471, 479 (7th Cir. 2006) (emphasis in original, 

citation omitted). The pertinent question is whether the employee 

put the employer on “inquiry notice” that he wanted FMLA-qualifying 

leave. Nicholson v. Pulte Homes Corp., 690 F.3d 819, 826 (7th 

Cir. 2011) (citations omitted). The employee is not required to 

refer to the FMLA, so long as he alerted the employer to the 

seriousness of his health condition. Id. If the employee provided 

sufficient notice, then the employer had a duty to inquire further 

to confirm his entitlement to FMLA leave. Id.

The Seventh Circuit has held that an employee’s “request for 

leave coupled with a mention of [his] sickness [does] not place 

the employer on notice of a probable basis for FMLA leave because 

[he] failed to convey any information regarding the nature of [his] 

medical problem.” Phillips v. Quebecor World RAI, Inc., 450 F.3d 

308, 312 (7th Cir. 2006) (citation and internal quotations 

omitted); see Burnett, 472 F.3d at 479 (“an employee’s bare 

assertion that he is ‘sick’ is insufficient”); Aubuchon v. Klaus 
‐26‐ 

Fiberglass, GmbH, 359 F.3d 950, 952 (7th Cir. 2004) (“If you have 

brain cancer but just tell your employer that you have a headache, 

you have not given the notice that the [FMLA] requires.”); Collins 

v. NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001) (“A 

reference to being ‘sick’ not only withheld important information 

from the employer but likely threw it off the scent. Certainly it 

did not suggest to the employer that the medical condition might 

be serious or that the FMLA otherwise could be applicable.”). 

“Requiring employers to determine whether leave is covered by the 

FMLA every time an employee was absent because of sickness would 

impose a substantial and largely wasted investigative burden on 

employers.” Phillips, 450 F.3d at 312 (citation and internal 

quotations omitted). “The FMLA does not require employers to play 

Sherlock Holmes, scanning an employee’s work history for clues as 

to the undisclosed, true reason for an employee’s absence.” de la 

Rama v. Ill. Dep't of Human Servs., 541 F.3d 681, 687 (7th Cir. 

2008). 

The facts presented do not indicate that Guernsey put the 

City on inquiry notice that he had an FMLA-qualifying event. While 

Guernsey maintains that he provided sufficient information because 

the City had known of his chronic pain and absences related to 

such pain for years, he gave the City only limited information 

about his absences. The doctor’s notes did not address the nature 

of Guernsey’s medical problems; rather, they merely indicate that 
‐27‐ 

he was “ill,” “seen” by a doctor, and/or should be “excused” from 

work. (DE #34-3 at 1-3.) Guernsey refused to provide more 

information about his absences in response to his supervisor’s 

request. After being treated for his last reported injury, 

Guernsey’s doctor notified the City that Guernsey could return to 

full activity without limitations, and that no follow-up was 

necessary. On January 16, 2013, Guernsey texted his supervisor 

that his back was “bothering” him, and requested the day off. This 

information did not suggest to the City that Guernsey’s health 

condition might be serious or that the FMLA otherwise could be 

applicable. Because the information available to the City was 

insufficient to put the City on notice of a serious health 

condition, the Court will not consider whether the City failed in 

its duty to investigate and inquire into his need for FMLA leave. 

Count II includes an allegation that the City failed to notify 

Guernsey of his rights and responsibilities under the FMLA. The 

FMLA contains a notice provision requiring that employers “keep 

posted, in conspicuous places . . . a notice . . . setting forth 

excerpts from, or summaries of, the pertinent provisions of this 

subchapter and information pertaining to the filing of a charge.” 

29 U.S.C. § 2619. The City argues that it provided proper notice 

regarding employees’ rights and responsibilities under the FMLA. 

Guernsey has not established that the City failed notify him 

of his rights and responsibilities under the FMLA. It is 
‐28‐ 

undisputed that the City handbook included information regarding 

FMLA leave, and referenced “intermittent leave.”6 It is also 

undisputed that the Federal Complete Compliance Poster was posted 

in the Street Department garage. The poster addressed provisions 

of the FMLA and stated in part, “[a]n employee does not need to 

use [the FMLA] leave entitlement in one block. Leave can be taken 

intermittently or on a reduced leave schedule when medically 

necessary.” (DE #34-9.) The parties do not dispute that Guernsey 

had notice of both the City handbook and the poster. In addition, 

Guernsey was aware of FMLA leave, as he had taken such leave twice 

before. The Court finds that no genuine issues of material fact 

exist as to whether Guernsey was notified of his rights and 

responsibilities under the FMLA. See, e.g., Resler v. Koyo 

Bearings USA LLC, No. 1:12–cv–100, 2014 WL 1272114, at *10 (M.D. 

Ga. Mar. 27, 2014) (granting summary judgment on FMLA notice claims 

where plaintiff did not dispute that FMLA procedures were printed 

in the employee handbooks and posted in the employee cafeteria). 

For the reasons set forth above, the Court grants the City’s motion 

for summary judgment as to Count II. 

                                                            

6 Count II also alleges that the City handbook was “not clear 

regarding intermittent FMLA leave being authorized.” (DE #19 at 

4.) However, the FMLA section of the City handbook states that 

“[w]hen intermittent leave is sought, the certification must 

recite the anticipated dates and duration of treatment, if 

possible.” (DE #34-25 at 2.) The Court finds that the City 

handbook indicates that intermittent FMLA leave may be authorized 

because it addresses the process for seeking such leave.
‐29‐ 

COBRA Claim 

Count III of the Amended Complaint alleges that the City 

failed to provide Guernsey with timely notice of his right to elect 

to continue his health, vision, and dental insurance under COBRA. 

Guernsey moves for summary judgment on the issue of the City’s 

liability under Count III, and for a hearing on the issue of 

penalties, damages, attorney fees and costs related to such 

violation. 

COBRA requires that an employer notify the benefit plan 

administrator that an employee has experienced a “qualifying 

event” within 30 days of that event. 29 U.S.C. § 1166(a)(2). 

Within 14 days of that notification, the plan administrator must 

send a notice to the employee advising of his rights to elect to 

continue his insurance benefits for up to 18 months (“election 

notice”). 29 U.S.C. § 1166(a)(4)(A); 29 U.S.C. § 1166(c); see 29 

C.F.R. § 2590.606–4(b)(2) (where an employer is the plan 

administrator, it must provide the election notice within 44 days 

of the date of the qualifying event). A “qualifying event” 

includes “any of the following events which, but for the 

continuation coverage required under this part, would result in 

the loss of coverage of a qualified beneficiary: . . . (2) The 

termination . . . of the covered employee’s employment.” 29 U.S.C. 

§ 1163. The employee has 60 days from the date on which coverage 

terminated by reason of a qualifying event, or the date on which 
‐30‐ 

he received the election notice, to elect to continue his 

insurance. 29 U.S.C. § 1165(a)(1). The “maximum required period” 

that continuing coverage must be offered is ordinarily 18 months 

after the date of the qualifying event. 29 U.S.C. § 1162(2)(A)(i). 

Here, the City terminated Guernsey’s employment effective 

February 1, 2013, but did not terminate his insurance benefits 

until June 21, 2013. The City notified IACT (the plan 

administrator) of the termination of Guernsey’s employment and 

benefits on June 21, 2013. IACT then contacted United Healthcare 

to terminate Guernsey’s insurance benefits as of June 21, 2013. 

United Healthcare provided Guernsey with his election notice on 

August 23, 2013, and gave him until October 24, 2013, to decide 

whether to elect to continue his insurance coverage. 

The City argues that because Guernsey’s termination of 

employment did not result in the loss of his insurance, the 

“qualifying event” that triggered the election notice requirement 

did not occur until June 21, 2013, when Guernsey’s insurance was 

terminated. In support, the City relies on the language of COBRA 

that states that a “qualifying event” is an event which, “but for 

the continuation coverage required under this part, would result 

in the loss of coverage of a qualified beneficiary.” 29 U.S.C. § 

1163 (emphasis added). The City admits that the express language 

of COBRA does not provide guidance in determining a qualifying 
‐31‐ 

event where the termination of employment does not coincide with 

the termination of the employee’s insurance coverage. 

Guernsey argues that his “qualifying event” occurred on the 

date of his termination, and that the City’s duty to notify the 

plan administrator arose on that date. In support, Guernsey cites 

Fama v. Design Assistance Corporation, 520 Fed. Appx. 119 (3d Cir. 

2013). In that case, the employee Fama terminated her employment 

in September 2008, and the employer mistakenly continued to pay 

for her insurance coverage until some point thereafter. Id. at 

121. Fama did not receive an election notice until September 2009. 

Id. In deciding whether the COBRA notice provision had been 

violated, the Third Circuit looked to the Code of Federal 

Regulations, which explains that “[t]he end of the maximum [COBRA] 

coverage period is measured from the date of the qualifying event 

even if the qualifying event does not result in a loss of coverage 

under the plan until a later date.” Id. at 123 (quoting 26 C.F.R. 

§ 54.4980B–7 (A-4)(b)(1)) (emphasis in original). The C.F.R. also 

provides the following example: 

An employee who is covered by a group health plan 

terminates employment . . . and, beginning with the day 

after the last day of employment, is given 3 months of 

employer-paid coverage under the same terms and 

conditions as before that date. At the end of the three 

months, the coverage terminates. 

[] The loss of coverage at the end of the three months 

results from the termination of employment and, thus, 

the termination of employment is a qualifying event.
‐32‐ 

26 C.F.R. § 54.4980B–4(A-1)(g) (Example 1) (emphasis added). The 

Third Circuit explained that “the statute, the regulations, and 

the preceding example compel the conclusion that, in order to 

constitute a qualifying event, coverage must be lost either at the 

time of the qualifying event, or at some point within the eighteenmonth maximum coverage period” of COBRA. Fama, 520 Fed. Appx. at 

123 (citations omitted). It held that the “qualifying event” was 

the date that Fama’s employment terminated, and affirmed the 

district court’s award of a statutory penalty of $10 per day 

between the date the employer should have provided Fama’s election 

notice (44 days after the “qualifying event” of termination of 

employment) and the date Fama was provided the election notice. 

Id. at 122-24; see also Sluka v. Landau Uniforms, Inc., 383 F. 

Supp. 2d 649, 659 & n.8 (D.N.J. 2005) (awarding statutory penalty 

of $20 per day for failure to notify employee of right to elect 

COBRA coverage even though lack of notice “appears to be an honest 

error” and defendant-employer “has offered to make Plaintiff whole 

by making coverage retroactive”). 

While Fama is an unpublished decision, and is not binding on 

this Court, the regulations and example cited in Fama are 

persuasive. The Court finds the instant case to be similar to the 

example in 26 C.F.R. section 54.4980B–4(g). Here, Guernsey 

received insurance coverage for approximately five months after 

the termination of his employment, and the loss of his coverage 
‐33‐ 

resulted from the termination of his employment. As such, the 

Court finds that the termination of Guernsey’s employment on 

February 1, 2013, was the “qualifying event” under COBRA. Because 

the City did not notify IACT until June 21, 2013, it failed to 

notify IACT of this qualifying event within the requisite 30 days. 

See 29 U.S.C. § 1166(a)(2). 

The City also argues that, regardless of when the “qualifying 

event” occurred, summary judgment on Count III is appropriate 

because Guernsey asserts his COBRA claim against the wrong 

defendant. “It is well-established that in . . . COBRA-related 

disputes about the duties of the Plan Administrator, the proper 

defendant is the Plan Administrator.” Thurston v. Borden WasteAway Serv., Inc., No. 3:96–CV–674RP, 1998 WL 456441, at *11 (N.D. 

Ind. May 19, 1998). Relying solely on Thurston, the City insists 

that IACT as the plan administrator owed a duty to Guernsey, and 

that the City cannot be liable to Guernsey for any alleged failure 

of IACT. Thurston did not address the issue here, where an 

employer failed to notify the plan administrator of the qualifying 

event within the time period required by Section 1166(a)(2). 

Guernsey asserts that the City cannot avoid its duties to 

provide a COBRA election notice by hiring a plan administrator. 

In support, he cites case law addressing the role of third party 

administrators (“TPA”). But a plan administrator is not the same 

as a TPA. COBRA defines “administrator” as “the person 
‐34‐ 

specifically so designated by the terms of the instrument under 

which the plan is operated.” 29 U.S.C. § 1002(16)(A)(i). A plan 

administrator has certain obligations under COBRA. See, e.g., 29 

U.S.C. § 1166(a)(4)(A). While a plan administrator may hire a TPA 

to perform some notification services, “[t]he use of a TPA cannot 

shield the administrator from liability for violations of COBRA’s 

notification requirements.” Gomez v. St. Vincent Health, Inc., 

649 F.3d 583, 590 (7th Cir. 2011); see Scott v. Suncoast Beverage 

Sales, Ltd., 295 F.3d 1223, 1231 (11th Cir. 2002) (“Simply hiring 

an agent and then instructing the agent to send notice is not 

sufficient to satisfy the statute. . . .”). Here, it is undisputed 

that IACT was the plan administrator for the City’s benefit plan, 

rather than a TPA. Therefore, the Court does not find the cases 

cited by Guernsey to be persuasive. 

Guernsey maintains that failing to provide a COBRA election 

notice within the requisite time period “subjects employers to a 

penalty . . . and may subject them to payment of the cost of 

medical expenses incurred.” (DE #33-1 at 4.) While Guernsey cites 

29 U.S.C. section 1132(c)(1) and 29 C.F.R. section 2575.502c-1 in 

support of this proposition, neither imposes penalties on 

employers. Rather, the plain language of Section 1132(c)(1) states 

that 

[a]ny administrator (A) who fails to meet [COBRA’s 

notice requirements under 29 U.S.C. § 1166(a)(4)] . . . 

with respect to a participant or beneficiary . . . may 
‐35‐ 

in the court’s discretion be personally liable to such 

participant or beneficiary in the amount of up to $100 

a day from the date of such failure . . . , and the court 

may in its discretion order such other relief as it deems 

proper. 

29 U.S.C. § 1132(c)(1) (emphasis added); see 29 C.F.R. § 2575.502c1 (increasing the maximum fine for a violation of Section 

1132(c)(1) from $100 to $110 per day). Section “1132(c) does not 

impose a penalty upon an employer for failing to meet its 

obligations to notify the plan administrator of a qualifying 

event.” Alexander v. HE & M, Inc., No. CIV–10–212, 2011 WL 255285, 

at *2 (E.D. Okla. Jan. 25, 2011). It is undisputed that IACT, and 

not the City, is the plan administrator here. Thus, Section 

1132(c) does not apply to the City. 

The Court notes that employers have been found liable for 

failing to satisfy their obligation to notify the plan 

administrators of the occurrence of a qualifying event under 29 

U.S.C. section 1166(a)(2). See, e.g., Uthell v. Mid-Illinois 

Concrete, Inc., No. 05-4034, 2006 WL 3590288, at *7 (S.D. Ill. 

Dec. 11, 2006) (where employer failed to give 29 U.S.C. § 

1166(a)(2)’s required notice of a qualifying event to the plan 

administrator, the employer was solely liable for the benefits 

that employee would have received if he had received his election 

notice); Ward v. Bethenergy Mines, Inc., 851 F. Supp. 235, 240 

(S.D.W. Va. 1994) (finding employer liable for medical expenses 

incurred by a plan participant as a result of the employer’s 
‐36‐ 

failure to notify plan administrator of qualifying event). The 

Fifth Circuit has explained: “[a]s a result of section 1166(a)(2), 

[the employer] obviously had a responsibility to notify the plan 

administrator of the occurrence of a qualifying event. Thus [the 

employer] bore some notification burden in addition to its 

responsibility to provide continuation coverage.” Kidder v. H & 

B Marine Inc., 932 F.2d 347, 355 (5th Cir. 1991) (holding the 

employer liable for damages). Here, the City had a responsibility 

to notify IACT of the “qualifying event” of Guernsey’s termination 

of employment within 30 days, as required by Section 1166(a)(2). 

Because the City failed to do so, it is a proper defendant of Count 

III. 

 Finally, the City argues that Guernsey’s alleged damages - 

characterized as the loss of his COBRA insurance benefits - were 

not the result of the City’s actions or inactions. Under COBRA, 

a qualified beneficiary must pay the applicable premium in a timely 

manner or risk losing coverage. See 29 U.S.C. § 1162(2)(C). It 

is undisputed that Guernsey’s COBRA insurance coverage was 

canceled due to his failure to pay the insurance premiums. 

Guernsey does not proffer any evidence to show that the City caused 

the termination of his COBRA insurance coverage, or caused any 

other damage or injury to Guernsey. Rather, Guernsey responds in 

two sentences, arguing that statutory penalties may be assessed 

“regardless of the presence of or lack of damages to the employee. 
‐37‐ 

Thus the mere absence of damages or lack of ‘causation’ of damages 

does not entitle [the City] to summary judgment on this issue.” 

(DE #40 at 9.) However, since statutory penalties under Section 

1132 are only available against the plan administrator and not the 

employer, Guernsey is not entitled to any statutory damages. 

Rinaldo v. Grand Union Co., No. CV–89–3850, 1995 WL 116418, at *2 

(E.D.N.Y. Mar. 8, 1995) (citations omitted). 

Summary judgment is the “‘put up or shut up’ moment in 

litigation, by which we mean that the non-moving party is required 

to marshal and present the court with the evidence [he] contends 

will prove [his] case.” Goodman, 621 F.3d at 654. Here, Guernsey 

fails to provide any evidence of an injury or damages incurred due 

to the City’s failure to notify IACT of the “qualifying event” of 

his termination. The absence of damages entitles the City to 

summary judgment, despite its technical violation of Section 

1166(a)(2). See Rinaldo, 1995 WL 116418, at *1 (granting summary 

judgment “since the plaintiff suffered no actual damages as a 

result of this technical violation [of COBRA notice requirements] 

and since punitive and statutory damages are not available”). 

Therefore, the City’s motion for summary judgment on Count III is 

granted. 
‐38‐ 

CONCLUSION 

 For the reasons set forth above, the City’s motion for summary 

judgment (DE #31) is GRANTED, and Guernsey’s motion for summary 

judgment (DE #33) is DENIED. The Clerk is ORDERED to DISMISS this 

case WITH PREJUDICE. 

DATED: August 12, 2016 /s/ RUDY LOZANO, Judge 

 United States District Court