CONCLUSION
For the reasons stated above, Aramark’s motion for summary judgment is granted [#14].

The clerk is instructed to enter judgment in favor of the defendant. This case is terminated.

ENTER:_ pear YX Kehiber>—
OAN HUMPHREY EEFKOW
United States District Judge

Dated: April 28, 2004

19


Myrick, in response, suggests that she sought up to a year of non-FMLA leave with
reinstatement rights. She claims that this was allowed by company policy, but provides no
evidence of it. Indeed, the evidence in the record is crystal clear that this was not the case. As
the Aramark memorandum above explained for leave of absences not protected under the FMLA:

An unprotected leave is not covered by the Family Medical Leave Act. This type

of leave allows an employee to take a leave of absence without guarantee of

position or pay. However, a position should be held for an employee as long as

possible without causing undue hardship on the component. Examples of

unprotected leave include childcare, educational pursuits and any leave extended

past the 12 weeks covered by the FMLA.

(Maney Aff. Ex. 4.) Significantly, included as a “leave of absence” “without guarantee of
position or pay” in the above is “leave extended past the 12 weeks covered by the FMLA.”

Myrick also attempts to point to Serna and Villa as similarly situated employees who
received non-FMLA leave for up to a year with reinstatement rights. Plainly, however, this
comparison fails for two reasons based on the undisputed facts in the record. First, neither Serna
nor Villa were similarly situated with Myrick. To be similarly situated individuals must be
comparable in “all respects.” Spath v. Hayes Wheels Intern. Indiana, Inc., 211 F.3d 392, 397
(7th Cir. 2000). As one court in this district has phrased it, the individuals “must have held the
same or similar employment positions, had similar employment histories, and engaged in
misconduct giving rise to the employment action.” Zakaras v. United Airlines, Inc., 121 F. Supp.
2d 1196, 1212 (N.D. Il. 2000). Serna served as one of approximately five cashiers, which the
undisputed evidence in the record establishes was a position with a high turnover rate. Villa was

a catering delivery person assisting with other kitchen preparations. The undisputed evidence

again reveals that Villa was one of about 10 in his position and that this entry-level job had a

13


she was still being paid as a bookkeeper. (PI. Resp. to Def. L.R. 56.1 $ 13.) As office manager
Myrick was performing the same job but also began ordering more office supplies. (Def. L.R.
56.1 9 18.) She received high scores on her evaluations while serving as an office manager. (PI.
LR. 56.1 J 109.)

Myrick became pregnant in October 2000 and was scheduled to deliver her baby on July
21, 2001. (Def. L.R. 56.19 21.)° She had complications with her pregnancy, including a fibroid
tumor that was discovered in December 2000 and gestational diabetes diagnosed in January
2001. (Def. L.R. 56.1 §22.} Myrick’s physician during her pregnancy was Dr. Steven Portes
(“Dr. Portes”), (Def. L.R. 56.1 § 23.) On April 22, 2001, Myrick went into premature labor.
(Def. L.R. 56.1 § 24.) The next day~April 23, 2001—Myrick saw Dr. Portes. (Def. L.R. 56.1
9725.) He advised Myrick that she could no longer work during her pregnancy. (Pl. Resp. to Def.
LR. 56.1 § 25.) The last day Myrick worked at the Parkway Center was April 20, 2001. (Def.
LR. 56.1 J 26.)

On April 23, 2001, Myrick called Yore from Dr. Portes’ office to notify him of her need
for leave from work. (Def. L.R. 56.1927.) Yore contacted Araiza regarding Myrick’s request
for leave. (Def. L.R. 56.1. 928.) Araiza sent Yore a packet that included information on family
and medical leave, a blank leave of absence form, and an FMLA “Certification of Health Care
Provider” form. (/d.) Araiza instructed Yore to have Myrick complete the leave of absence form

and to have her doctor complete the “Certification of Health Care Provider” form. (Def. L.R.

3Myrick had twice before taken leave for the birth of her two other children. (Pl. L.R. 56.1 4 118.) These
leaves were each eight weeks in length. (Def. L.R. 56.1 J 19.) Myrick attaches as her exhibit 4 two documents, one
of which refers to this leave as “maternity leave” that is unpaid and “the employee will be receiving no compensation
from the company” while on such leave. (PI. Ex. 4 at 0593.) Myrick was reinstated to her job and suffered no
adverse consequences following her 1995 and 1997 leaves. (Def. L.R. 56.1 ¢{ 19-20.)

4


Accordingly, based on the above, Myrick is unable to create a triable issue of fact
concerning her termination. Aramark’s motion for summary judgment on Myrick’s race, sex and
pregnancy discrimination claims, therefore, is granted.

B. FMLA

The FMLA guarantees eligible employees up to twelve weeks of unpaid leave each year
for, inter alia, the birth of a child or because of a serious health condition. 29 U.S.C.

§ 2612(a)(1). When an employee returns from FMLA leave in a timely fashion, the employer
must reinstate the employee to his or her former or an equivalent position. 29 U.S.C.

§ 2614(a)(1). While Myrick’s brief does not make her FMLA theory entirely clear, it appears
that her argument concerns the fact that her FMLA leave was not officially approved until July
10, 2001. Thus, according to Myrick, she was entitled to 12 weeks of FMLA leave from that
date and not from April 23, 2001, when her leave actually began.

Helpful in resolving this claim is the Supreme Court's decision in Ragsdale v. Wolverine
World Wide Inc., 535 U.S. 81 (2003). In Ragsdale, the Supreme Court invalidated regulation 29
C.F.R. § 825.700(a), which required that an employer provide notification to an employee of
leave being designated under the FMLA in order for such leave to count against the 12 week
entitlement. Jd. at 88. The Supreme Court struck down this regulation, noting that the 12 week
period as set out in the statute was both a minimum and a maximum. Jd. The Court noted that
the Secretary of Labor, who promulgated the regulation, lacked the authority to contravene
congressional intent and create a windfall for an employee whose employer did not immediately

designate the leave as FMLA 12 week leave. Jd.

7


Myrick did not return to work within 12 weeks of her leave, she was considered terminated as of
July 13, 2001. (Def. L-R. 56.1 973.) Thereafter Araiza spoke with Myrick and told her that
since 12 weeks of FMLA leave expired on July 13, 2001, and since she had not returned to work
immediately following its expiration, her position at the Parkway Center was no longer available.
(ef. L.R. 56.1 75.) Araiza told Myrick that she was free to apply for any available position
with the company, but Myrick responded that she only wanted her job at the Parkway Center.
(Def. L.R. 56.1 76.) Myrick did not request that Aramark find her another position nor did she
reapply for any new job within the company. (Def. L.R. 56.1 478.)

Oscar Serna (“Serna”) worked at the Parkway Center as one of approximately five
cashiers. (Def. L.R. 56.1 4] 81-82.) Cashier positions at the Parkway Center were entry-level
positions with a high rate of turnover. (Def. L.R. 56.1 { 83.) During 1998 and 1999 Serna
informed Sweeney on two separate occasions that he needed to go to Mexico. (Def. L.R. 56.1
84.) On each occasion Sweeney authorized Serna to leave without pay, benefits, or
reinstatement rights and informed him that when he returned Serna would not be guaranteed a
job but that Sweeney would look to see if any positions were open and available. (Def. L.R. 56.1
41 86-87.)

Another employee, Hector Villa (“Villa”), worked at the Parkway Center as a catering
delivery person and also assisted with cold food preparation and in working the grill. (Def. L.R.
56.1 § 89.) Villa was one of approximately ten kitchen support staff members at the Parkway
Center. (Def. L.R. 56.1 990.) Catering delivery and kitchen help positions at the Parkway
Center were entry-level positions with a high rate of tumover. (Def. L.R. 56.1 991.) In late

1998 or early 1999, Villa informed Sweeney that he needed to go to Mexico for a period of time


signatures. (Jd.) In signing the form Miller intended to approve the leave of absence for Myrick.
(Def. L.R. 56.1940.) His signature fell into the “Leave Denied” column because there was no
other space available on the form for him to sign his name. (/d.)

Myrick later had Dr. Portes complete the “Certification of Health Care Provider” form
and Dr. Portes’ office faxed the completed form to Yore. (Def. L.R. 56.1 942.) In late June
2001, Araiza received a facsimile from Yore containing the completed “Certification of Health
Care Provider” form for Myrick. (Def. L.R. 56.1] 43.) This form was then given to Maney,
who noticed that Myrick’s leave began on April 23, 2001. (Def. L-R. 56.1 ( 45.) Maney
calculated Myrick’s leave up to July 13, 2001, based on her knowledge that the FMLA provided
12 weeks of leave during a 12 month period. (/d.) Maney wrote “12 weeks up 7-13-01” on the
bottom of the leave of absence form when she signed the form on July 10, 2001. (/d.)

On June 2, 2001, Myrick’s baby was delivered by caesarean section. (Def. L.R. 56.1
946.) After her delivery, Dr. Portes told Myrick that it would take 10 to 12 weeks for her body
to heal externally and a year to heal internally. (Def. L.R. 56.1 1.47.) Dr. Portes specifically told
Myrick that she could not return to work for 10 to 12 weeks, (Jd.) Dr. Portes never gave Myrick
a note documenting her 10 to 12 week work restriction and Myrick never asked him for one.
(ef. L.R. 56.1 148.) Myrick called Yore on June 2 and left a voicemail message for him stating
that her doctor told her that it would take 10 to 12 weeks for her body to heal. (Def. L.R. 56.1
449.) Myrick explained this to Yore over the telephone upon reaching him on June 4, 2001.
(Def. L.R. 56.1 950.) Thereafter, Myrick did not attempt communication with Yore until the end
of June or the beginning of July when she left a voicemail message for him explaining that she

was still on bed rest. (Def. L.R. 56.1 4 52.)


56.1 29.) Araiza told Yore to return the forms to her when they were completed and advised
that Myrick’s leave likely would be covered under the FMLA, entitling her to up to 12 weeks of
leave with guaranteed reinstatement if Myrick returned to work within that time. (/d.)

Yore sent both the leave of absence and “Certification of Health Care Provider” forms to
Myrick. (Def. L.R. 56.1 (J 30-31.) He informed Myrick that human resources had told him that
she needed to complete both. (/d.) After receiving the leave of absence form Myrick signed it
and returned it to Yore. (Def. L.R. 56.1 433.) Accompanying the leave of absence form was a
disability certificate that Dr. Portes had signed. (Def. L.R. 56.1 1 34.) This disability certificate
indicated that Myrick would be unable to work from April 23, 2001 to “indefinite.” (d.)
Moreover, the leave of absence form Myrick completed also stated that the start date of her leave
would be April 23, 2001 and her anticipated return date would be “indefinite.” (Def. L.R. 56.1
735.)

Araiza received the completed leave of absence form from Yore in May 2001. (Def. LR.
56.1936.) After receiving the form, Araiza telephoned Yore and told him that she still needed
to receive the completed “Certification of Health Care Provider” form for Myrick. (Def. L.R.
56.1937.) Yore told her that he had not yet received that form from Myrick but that he would
forward it once he did. (Def. L.R. 56.1 9 37.)

Araiza placed the leave of absence form in the “for signature” file of Jim Miller, the
Regional Vice President for Aramark. (Def. L.R. 56.1 438.) On June 6, 2001, Miller signed the
form in the box on the lower right hand side of the page titled “Second Level Management.”
(Def. L.R. 56.1 439.) He signed the form in this place because District Manager Chris Ferenc

had already signed the form in the only other space available for “Second Level Management”


Similar to Ragsdale, adopting Myrick’s argument that her 12 week FMLA protected
leave started when actually approved would, in essence, provide her a windfall and grant her an
extension in the amount of time she is given under the statute, That is contrary to the statute’s
purpose. Indeed, other courts in this district have so held. E.g., Strykowski v. Rush N, Shore
Med. Ctr., No. 02 C 0778, 2003 WL 21788987, at *6 (N.D. Ili. July 30, 2003) (“The extension
[plaintiff] asks for today would both undermine and contravene these purposes by allowing him
to leave work for medical reasons for nearly 28 weeks and still be afforded protection under the
FMLA as if he had only taken the 12 week statutbiy required period.”); Sewall v. Chicago
Transit Auth,, No. 99 C 8372, 2001 WL 40802, at *5 (N.D. Ill. Jan, 16, 2001) (noting that there
“js absolutely no law supporting a finding” that plaintiff's leave should have begun when he was
given the FMLA application or when he actually completed the FMLA application because such
a policy would allow the employee “a windfall of 4 or 6 weeks of sick leave.”). Also worth
noting in this regard is that at least part of any delay in her leave being officially approved as
FMLA leave was Myrick’s own delay in providing the completed “Certification of Health Care
Provider” forms. Allowing Myrick to delay the start of her 12 week FMLA leave merely by
dragging her feet on the completion of her certification forms is an entirely nonsensical result.

Thus, Myrick was entitled to 12 weeks of FMLA protected leave from April 23, 2001,
when she began her leave of absence. Since she was given 12 weeks of leave after that date, she
was afforded all that was required under the statute. Accordingly, Aramark’s motion for

summary judgment on Myrick’s FMLA claim is also granted.

18


beginning of her leave of absence, Cervantes would not be able to keep her position as
bookkeeper at the Parkway Center. (Def. L.R. 56.1 62.)

During May, June and July 2001, Yore testified that he felt that Cervantes’ lack of job
security affected her performance and her willingness to commit the time and energy necessary to
learn the bookkeeper duties at the Parkway Center. (Def. L.R. 56.1 J 63.) In approximately late
July 2001, Yore telephoned Araiza and asked whether he could make a commitment to Cervantes
that she was no longer a temporary fill-in. (Def. L.R. 56.1 9.65.) Araiza told Yore that Myrick
had the right to return to her job until her 12 weeks of FMLA leave had expired and that Araiza
needed to check with Maney before she could answer. (Def. L.R. 56.1966.) After Araiza spoke
with Maney, Maney checked the leave of absence form for Myrick and, since 12 weeks of leave
guaranteed under the FMLA had expired and Myrick had not returned to work, Maney told
Araiza that she could tell Yore that he could now make a commitment to Cervantes that she was
no longer temporary and was the bookkeeper at the Parkway Center. (Def. L.R. 56.1 J 67, 68.)
Araiza informed Yore as to Maney’s response, and after receiving this permission, Yore told
Cervantes that she would not lose her position as bookkeeper if Myrick returned. (Def. L.R. 56.1
169.)

On August 8, 2001, Myrick called the Parkway Center and was told that Yore was on
vacation. (Def. L.R. 56.1971.) She spoke with someone identified as the “new” general
manager and that person told Myrick to contact human resources. (/d.) On either August 8 or 9,
Araiza received a telephone call from Myrick stating that she planned on returning to work on
August 20, 2001. (Def. L.R. 56.1 72.) Araiza told Myrick that she needed to speak with

Maney before she could address Myrick’s return to work. (/d.) Maney told Arazia that since


United States District Court, Northern District of Minois

Nemeotanentsvee | Joan H. Lefkow | Stet Seer ter
CASE NUMBER 02 C 5890 DATE 4/28/2004

CASE Myrick vs. Aramark Corporation

TITLE

[in the following box (s) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: ofthe motion being presented]
DOCKET ENTRY:
qd) i) Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motiondue____.
@) oO Answer brief to motion due. . Reply to answer briefdue___
(4) o Ruling/Hearingon____—_ssetfor sat
(5) Qo Status hearing[held/continued to] [set for/re-set for]on__—sset for__—_at.
(6) a Pretrial conference[held/continued to] [set for/re-set for]on___setfor___—sat__—
(7?) oO Trial[set for/re-set for]on_ sat
(8) a [BenchyJury trial] [Hearing] held/continued to__at
(9) i] This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) OLocal Rule 41.1 OOFRCP41(aX1) © FRCP41(a)(2).

(| [Other docket entry} | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order,
Judgment is entered in favor of the defendant and against the plaintiff.

(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.

eo | Notices mailed by judge's staff.
Notified counsel by telephone.

a | Docketing to mail notices.

Mail AO 450 form, pean t

defendant’s motion for summary judgment [14-1] is granted.

Copy to judge/magistrate judge.
courtroom. a wt *
MD deputy’s
initials
Date/time received in
central Clerk's Office



DISCUSSION

A. Title VII Claims

Myrick alleges that her termination from employment at Aramark was based on either her
race, sex or pregnancy, all in violation of Title VII. She may establish that ber termination was
discriminatory by either direct or indirect proof. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.
2002). Other than to provide one conclusional statement that “[o]pen acknowledgment of racial
hostility is direct evidence of discrimination,” Myrick does not set forth proof under the direct
method. Her perfunctory argument is insufficient. See, e.g., Clay v. Holy Cross Hosp., 253 F.3d
1000, 1002 n.1 (7th Cir. 2001) (noting that “perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority, are waived.”). Thus, the court analyzes
her claims under the indirect method of proof.

Under the burden-shifting method established by McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), Myrick bears the initial burden of producing evidence to sustain a prima
facie case. If Myrick meets this burden, then Aramark must produce a legitimate,
nondiscriminatory reason for its action. If Aramark offers a legitimate nondiscriminatory reason,
the burden then shifts back to Myrick to present evidence that the employer’s proffered reason is
pretextual. E.g., Adams v. Wal-Mart Stores, 324 F.3d 935, 939-40 (7th Cir. 2003).

To satisfy a prima facie case of discrimination under Title VII, Myrick must show (1) that
she is a member of a protected class; (2) that she suffered an adverse employment action; (3) that

she was meeting her employer’s legitimate performance expectations; and (4) that the employer

‘Claims under Title VII and 42 U.S.C. § 1981 are analyzed in the same manner. E.g., Logan v. Kautex
Textron N. Am., 259 F.3d 635, 637 n.1 (7th Cir. 2001).

11


for family reasons. (Def. L.R. 56.1 $92.) Sweeney authorized Villa to leave without pay,
benefits or reinstatement rights and informed Villa that if he left, Sweeney could not guarantee
him a job when he returned and that Sweeney would have to see if any positions were available
at that time. (Def. L.R. 56.1 ]¥ 93-94.)

When Villa returned from Mexico in 1999, he spoke with Sweeney. (Def. L.R. 56.1
495.) Sweeney told Villa that he would see if any positions were available with his
qualifications and skills. (Def. L.R. 56.1 995.) Within a short time Sweeney was able to place
Villa in a position at the Parkway Center. (Def. L.R. 56.1 96.) Villa returned to work at the
same rate of pay he previously had. (PI. L.R. 56.1 { 114.)

In early 2001, Villa informed Yore that he needed to go to Mexico because of some
family issues. (Def. L.R. 56.1 | 98.) Yore told Villa that he could leave but that he had no job
guarantee when he returned. (Def. L.R. 56.1499.) Villa left and returned approximately one
and a half months later. (Def. L.R. 56.1 7 100.) When Villa returned he spoke with Yore and
asked whether Yore could find him a position at the Parkway Center. (Def. L.R. 56.1 101.)
Yore was subsequently able to find a position for Villa at the Parkway Center. (Def. L.R. 56.1
7102.)

Myrick states that throughout her employment Yore made derogatory comments about
African-Americans “[a]lmost every day.” (Pl. L.R. 56.1 { 136.) For example, Myrick testified,

He would say things like what you eating for lunch today, Ida? We don’t have

chicken and watermelon. And stuff like that, different kind of comments like that.

And he would only talk to me like that.

(Pl. L.R. 56.1 ¢ 135.) Myrick testified that she was offended by these comments and that Yore

did not address non-blacks in the same fashion. (PI. L.R. 56.1 4 137-38.)

10


Myrick had previously received Aramark’s Midwest Business Services Hourly Employee
Handbook and appendix. (Def. L.R. 56.1 157.) While on her leave, but prior to her termination,
Myrick read the Family and Medical Leave policy contained within that handbook. (Def. L.R.
56.1958.) The Family and Medical Leave section of the handbook stated,

Employees whe return to work from a family leave of absence within or on the

first scheduled day following the expiration of the 12 weeks are entitled to return

to their job or an equivalent position without loss of benefit pay.

(Def. L.R. 56.1 $59.) Aramark’s policy relating to leave of absences is that employees who take
a leave that is not covered under the FMLA or whose leave time exceeds the FMLA’s 12 weeks
are not guaranteed reinstatement to their prior positions. (Def. L.R. 56.1 § 60.) Specifically, an
Aramark memorandum from Araiza to “Front Line Managers” with the subject of “Leaves of
Absence” provided, after explaining the requirements of the FMLA,

An unprotected leave is not covered by the Family Medical Leave Act. This type

of leave allows an employee to take a leave of absence without guarantee of

position or pay. However, a position should be held for an employee as long as

possible without causing undue hardship on the component. Examples of

unprotected leave include childcare, educational pursuits and any leave extended

past the 12 weeks covered by the FMLA.

(Maney Aff. Ex. 4.)

After Myrick left work to go on leave, Carmen Cervantes (“Cervantes”) was transferred
from another Aramark cafeteria to work as the bookkeeper at the Parkway Center. (Def. L.R.
56.1 J 61.) Cervantes, who is not African-American, had never worked as a bookkeeper and her
initial training and skills were limited. (/d.; Pl. L.R. 56.1 4 120.) When Cervantes began work in

May 2001 Yore told her that if Myrick returned to the Parkway Center within 12 weeks of the


at an office complex called the Parkway Center located in Deerfield, Illinois. (Def. L.R. 56.1 {J
3-4.) Myrick, who is African-American, was employed by Aramark at the Parkway Center from
July 17, 1995 to July 13, 2001. (Def. L.R. 56.1 94.) Myrick’s supervisor at the Parkway Center,
beginning in December 1999, was Jeff Yore (“Yore”). (Def. L.R. 56.197.) Jake Sweeney
(“Sweeney”) was also employed with Aramark at the Parkway Center from approximately June
1998 to June 2000, serving as a General Manager with responsibility for operations. (Def. L.R.
56.198.)

Also relevant to this action are Kate Maney (“Maney”) and Maria Araiza (“Araiza”).
Maney is the Human Resources Director for the Midwest Region of Aramark, a position she has
held since October 2000. (Def. L.R. 56.1 45.) Her responsibilities include human resource
matters relating to the Parkway Center. (/d.) Maria Araiza (“Araiza”) is a Human Resources
Administrator for Aramark, a position she has held since February 2001. (Def. L.R. 56.1 7 6.)
Araiza reports to Maney. (/d.) Both Maney and Araiza have their offices located in Oakbrook
Terrace, Illinois. (Def. L.R. 56.1 §] 5-6.) At no time during Myrick’s employment was either
Maney or Araiza aware of Myrick’s race. (Def. L.R. 56.1 4 77.)

When hired Myrick performed catering and cashier work at the Parkway Center. (Def.
L.R. 56.199.) In October 1996, she was promoted to the position of bookkeeper. (Def. L.R.
56.1 4.10.) As a bookkeeper her hours were from 7:00 a.m. to 3:30 p.m. (Def. L.R. 56.1 7 12.)
Her duties included performing payroll functions, preparing certain weekly reports and handling
and invoicing catering orders. (Def. L.R. 56.1 13.) Myrick was the only bookkeeper assigned
to the Parkway Center and received high scores on her evaluations. (Def. L.R. 56.1 4 14; Pl. L.R.

56.1 § 108.) After August 1998, Myrick began performing the job of “office manager” although


high turnover rate. Myrick, serving as the only bookkeeper/office manager with markedly
different responsibilities, was not similarly situated with either Serna or Villa.

Second, and more fundamentally, neither Serna nor Villa received any greater rights than
Myrick. Serna and Villa were not granted up to a year of non-FMLA leave with guaranteed
reinstatement rights. The evidence in the record, concerning which Myrick has failed to create a
triable issue of fact, shows that in each instance Villa and Serna were granted leave with no
reinstatements rights. Indeed, they were not even granted the 12 weeks of FMLA leave with
guaranteed reinstatement given to Myrick. That Villa and Serna were given jobs on return from
their leaves of absences, even though such positions were not guaranteed, is more a product of
the two working in high turnover jobs compared to Myrick. It does not establish that they were
treated more favorably than Myrick.

The court addresses two other arguments that Myrick makes in this regard. First, she
seems to point to her other two matemities leaves as proof that something along the line of
“maternity leave” existed separate from FMLA. It is undisputed, however, that her two previous
maternity leaves were 8 weeks in length and, therefore, provide little support for her claim that
she was entitled to additional time after twelve weeks of FMLA leave expired. Second, Myrick
argues that, unlike Villa and Serna, she was not given a warning that her job would be in
jeopardy if she were not to return after her 12 weeks of FMLA leave. Once again, Villa and
Serna are inappropriate comparisons for Myrick, as those two were provided warnings in all
likelihood because they had no reinstatement rights at all, not even during a 12 week FMLA
period. Moreover, Myrick’s claim that she was not told her employment would cease after her

FMLA leave fails insofar as she expressly stated that she read and understood Aramark’s policy

14


here. It would be appropriate “in an instance in which a subordinate, by concealing relevant
information from the decisionmaker, is able to manipulate the decisionmaking process and to
influence the decision.” Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997). The undisputed facts here establish that Maney conducted an independent review of
Myrick’s case before deciding whether she would be allowed to return to her position with
Aramark. As the Seventh Circuit has noted, “when the causal relationship between the
subordinate’s illicit motive and the employer’s ultimate decision is broken, and the ultimate
decision is clearly made on an independent and a legally permissive basis, the bias of the
subordinate is not relevant.” Id. As such, this argument fails to establish pretext.

Myrick’s second argument—that Aramark gave inconsistent reasons for her
termination—also fails. In support of this argument Myrick claims that Maney, when she
answered the EEOC charge on December 20, 2001, stated that one of the reasons for Myrick’s
termination was “[fJailed to contact her manager.” (Pl. L.R. 56.1 § 121.) Read in its entirety,
however, the answer to the EEOC charge provides: “[Myrick] failed to return from FMLA leave
and failed to contact her manager and therefore [Myrick] was terminated for failure to return
from leave.” (Pl. Ex. 3 at 0423.) The court agrees with Aramark that there is no inconsistency.
Maney states that Myrick was terminated for failure to return from leave. This explanation is
“substantially consistent” and there is no “inference of mendacity” required for inconsistent
reasons to establish pretext. Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 577 (7th Cir.
2003), see also, Rand v. CF Indus., 42 F.3d 1139, 1146 (7th Cir. 1994) (noting that summary
judgment in favor of employer is proper if the proffered explanations are consistent “in substance

if not word choice.”).

16


affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact, Celotex Corp. v. Catrett, 477 U.S, 317, 323 (1986). In response, the nonmoving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd, at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be
outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare
contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most
favorable to the nonmoving party as well as view all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF:
Aramark manages on-site restaurants, catering and office services for businesses. (Def.

L.R. 56.1 43.) At all times relevant to this action Aramark managed a cafeteria-style restaurant

2Local Rule 56.1(a) provides that a motion for summary must include, inier alia, a “statement of material
facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment
as a matter of law.” This statement of material facts “shall consist of short numbered paragraphs, including within
each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to
support the facts set forth in that paragraph.” Part (b) of Loca! Rule 56.1 requires a party opposing summary
judgment to file, inter alia, a concise response to the movant's statement of material facts. For purposes relevant
here, that statement is required to include a response to each numbered paragraph in the moving party’s statement,
including in the case of any disagreement, “specific references to the affidavits, parts of the record, and other
supporting materials relied upon.” The rule is very clear that “{aJll material facts set forth in the statement required
of the moving party will be deemed admitted unless controverted by the statement of the opposing party.” Local
Rule 56,1(6)(3)(B). In response to Aramark’s paragraphs 40, 45, 63, 64, 70, 77 and 80, Myrick neither admits nor
denies the facts asserted. Instead, she claims, with little explanation and no citation to authority, that these
paragraphs involve matters “not proper for determination on summary judgment.” This argument notwithstanding,
the Local Rules do not envision such a response, see, ¢.g., Hall v. Thornton Fractional Township High Sch. Dist.
No. 215, No. 99 C 1433, 2000 WL 1644548, at *5 (N.D. Ill. Oct. 24, 2000), and since Myrick did not controvert
these statements, they are deemed admitted. E.g., Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529
(7th Cir. 2000).


DOCKETEL
UNITED STATES DISTRICT COURT APR 9.9 20
FOR THE NORTHERN DISTRICT OF ILLINOIS oF
EASTERN DIVISION
)
IDA L. MYRICK, )
)
Plaintiff, )
)
vs. ) No. 02 C 5890

) Judge Joan H. Lefkow
ARAMARK CORPORATION, )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff, Ida L. Myrick (“Myrick”), brings this action against defendant, Aramark
Services Inc. (“Aramark”), improperly named as Aramark Corporation, alleging that she was
terminated from her employment based on her race, sex and pregnancy, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 20006 ef seq. (“Title VII”), as amended by the
Pregnancy Discrimination Act (“PDA”).' In addition, Myrick also alleges violation of the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2101 et seg. Pending before the court is
Aramark’s motion for summary judgment. For the reasons set forth below, the motion is
granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and

assess the proof as presented in depositions, answers to interrogatories, admissions, and

‘Myrick also alleges discrimination in violation of 42 U.S.C. § 1981.

7


treated similarly situated employees who are not in the protected class more favorably. E.g.,
Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001).

Parts (1) and (2) of the prima facie case are easily satisfied as Myrick was a member of a
protected class based on her race, gender and pregnancy, and she clearly suffered an adverse
employment action when terminated. Aramark challenges Myrick’s ability to satisfy parts (3)
and (4) of her prima facie case.

Aramark’s argument in relation to element (3) is that Myrick wanted a benefit which
neither she nor any other employee was qualified to receive, i.e., leave of absence over and above
the 12 weeks of leave guaranteed under the FMLA along with guaranteed reinstatement rights to
her job. See Lang v. Star Herald, 107 F.3d 1308, 1313 (8th Cir. 1997) (“no one was qualified to
receive the benefit [plaintiff) sought, viz., an indefinite unpaid leave of absence with a guarantee
of a job when the employee wanted to return to work.”); Martino v. California Federal Bank,
FSB, No. 00 C 0370, 2001 WL 1465140, at *4 (N.D. III. 2001) (noting that plaintiff failed to
show that she was meeting her employer’s legitimate expectations because “[hJer inability to
return to work after three months’ leave constituted a clear violation of her employer’s leave
policy.”), According to Aramark, Myrick was never guaranteed such rights and she herself
admitted that she had read Aramark’s employee policy which stated, “Employees who return to
work from a family leave of absence within or on the first scheduled day following the expiration
of the 12 weeks are entitled to return to their job or an equivalent position[.}” With respect to
element (4), Aramark argues in a similar fashion that no similarly situated employee was treated

more favorably with respect to reinstatement on return from leave.

12


that explicitly stated that “[e]mployees who return to work from a family leave of absence within
or on the first scheduled day following the expiration of the 12 weeks are entitled to return to
their job or an equivalent position without Joss of benefit pay.”* For all of the above reasons,
Myrick cannot make out elements (3) or (4) of her prima facie case and, as a result, summary
judgment is properly granted in favor of Aramark.

Finally, the court notes that even had Myrick made out her prima facie case, she fails in
her burden to establish pretext. As its legitimate nondiscriminatory reason Aramark asserts that
Mpyrick’s position was terminated because she did not return to work after 12 weeks of FMLA
leave. Myrick believes that this reason is a pretext for discrimination (1) because of the
involvement of Yore and (2) because Aramark has provided inconsistent reasons for terminating
her.

To satisfy her burden of establishing pretext, Myrick would have to show that the reason
articulated by Aramark was not its true reason for terminating her but instead was a dishonest
explanation unworthy of credence. Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676
(7th Cir. 2003); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002).
Myrick’s first pretext argument—that Yore, who she believes is racist, was involved in the
termination-is unpersuasive. The evidence in the record establishes that it was Maney who was
the decisionmaker concerning Myrick’s termination. The court acknowledges that in some
situations the forbidden motive of a subordinate employee can be imputed to the employer, see

Shager v. Upjohn Co., 913 F.2d 298, 495 (7th Cir. 1990), but such imputation is not appropriate

SMoreover, even if Myrick had been given the warning that her job would be in jeopardy had she not
returned within 12 weeks of her leave, the undisputed evidence is that Myrick could not have retumed to work on
July 13, 2001 based on her doctor’s orders.

15