Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Insolia v. Philip

Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). It is with these principles in mind that we address Querrey’s
motion.
DISCUSSION
Although Schaefer takes issue with several actions taken by Querrey,’ her only
potentially viable basis for legal relief stems from her allegations of unlawful

retaliation. 29 U.S.C. § 2615(a); King v. Preferred Technical Group, 166 F.3d 887, 891

(7th Cir. 1999). Assuming, without deciding, that she had any other potential causes

of action under the FMLA, she missed the two-year deadline for filing them. The last

‘In their reply, Querrey points out that Schaefer does not comply with the
requirements of Local Rule 56.1 in responding to their submitted statement of facts.
They urge us to deem all their facts thus admitted. They are correct in noting that even
pro se litigants such as Schaefer must comply with the rule or face the harsh
consequence of admitting all uncontroverted facts. Greer y. Bd. of Educ. of Chicago,
267 F.3d 723, 727 (7th Cir. 2001). However, this outcome is justified only when the
pro se party has notice of their obligations under the rule, which Local Rule 56.2
mandates be given by counsel for the moving party, namely Querrey. Querrey insists
that they supplied this notice, but the letter they claim did so contains only an excerpt
from Fed. R. Civ. P. 56(e). It contains no explanation of the strictures of Rule 56.1, let
alone a notice in the format given by Rule 56.2. Without proper notice, Schaefer
cannot be penalized for her failure to conform to procedure. Accordingly, this court
has conducted an independent review of the entire record to determine which facts are
undisputed or admitted.

-4-


contradict the validity of those reasons. PI.’s Dep., pp. 83, 90-91, 99-100, 102-103,

146,210. Under either method discussed in Stone, we conclude that Querrey is entitled

to summary judgment.
CONCLUSION
Based on the foregoing analysis, then, we grant Querrey & Harrow’s motion for

summary judgment and deny their motion for a protective order as moot.

ce, Qa fh ee

Charles P. Kocoras
United States District Judge

Dated: March 7, 2002



permanent desk or an emergency phone line because they were in the process of
reconfiguring desk assignments when she returned from her leave. Pl.’s Dep. pp. 99-
100. Kozy informed Schaefer when she complained about not receiving a pay increase
for 1999 that those were awarded based on performance evaluations, and Schaefer’s
evaluation for that year would not support an increase. Pl.’s Dep. pp. 90-91, 102-103;
Pl.’s Exh. C. Schaefer also argues that she should have received a bonus in August of
1999, which her termination prevented, but the evidence she offers in support of that
assertion does not indicate a possibility that she was entitled to a bonus at all. Pl.’s Exh.
D. Finally, Querrey’s proffered reason for terminating Schaefer’s employ is her
repeated problems with tardiness and unexcused absences unrelated to her FMLA leave,
which Schaefer admits happened. PI.’s Dep. pp. 45, 108-109. She also admits having
received at least two warnings that her continued practice of being late or not coming
to work would result in her termination. Pl.’s Dep. p. 118, 146, 153.

To rebut these rationales and establish a triable issue of fact as to whether her
FMLA leave led the firm to take the actions to which she objects, Schaefer first offers
some pregnancy-related comments made by attorneys at Querrey. Occasional offensive
comments are not relevant in an employment suit unless the plaintiff can show that the
person making the comments is the same one who made the adverse employment

decision. See, e.g., Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1099 (7th Cir. 2001).

-6-


event constituting an alleged violation of the FMLA must occur no more than 2 years
before the complaint is filed. 29 U.S.C. § 2617(c)(1). Even the most generous reading
of Schaefer’s submissions shows that only her allegations of retaliatory behavior fall
within the temporal scope of the statute.

The Seventh Circuit recently clarified that a plaintiff facing summary judgment
ina retaliation suit can pursue two avenues to defeat the motion. Stone v. Indianapolis
Public Utilities Div., 2002 WL 234239 (7th Cir. Feb. 19, 2002). In the FMLA setting,
the first avenue consists of a showing that the plaintiff engaged in a statutorily protected
activity and thereafter suffered an adverse employment action causally connected to the
activity, i.e., that would not have been taken but for the employee’s exercise of his or
her statutory rights. King, 166 F.3d at 892. The plaintiff need not show that retaliation
was the only reason that the employer acted; if retaliation was even a partial motivation,

that is sufficient. Stone, 2002 WL 234239, at *2. The employer’s evidence that its

actions were not tainted by retaliatory motives must be unrebutted, or summary
judgment is inappropriate. Id, Schaefer claims that Querrey punished her for taking
FMLA leave in three ways: not giving her a permanent desk or emergency phone line
when she returned from having Sarah, denying her a pay increase and a bonus for 1999,
and terminating her employment. Querrey has offered reasons for each of these actions

unrelated to Schaefer’s FMLA leave. They claim that Schaefer was not given a

-5-


purpose of the FMLA is not to override an employer’s leave policies but to allow
employees to take leave for certain conditions that are particularly time-consuming.
Price v. Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997). Her “floater” status,
according to her supporting Exhibit G, came as a result of her own request for the
position in 1997, not as a sort of demotion. Finally, Schaefer seems to argue that the
mere existence of the actions of which she complains and the evaluations she received
is enough to prove unlawful intent. Needless to say, the fact that these events transpired
is not enough to create a triable issue of fact as to Querrey’s intentions.

Although Schaefer cannot establish a causal link under the first avenue, in theory

she may still be able to follow the second route, which is based on the McDonnell-

Douglas burden-shifting analysis. Stone, 2002 WL 234239, at *3. To succeed,
Schaefer must show that she, and no one similarly situated who did not take FMLA
leave, was subjected to adverse employment action. Id. This presents immediate
problems because she does not offer up any similarly situated employees whose
situation we could compare to hers. However, even assuming that she could make this
threshold showing, Querrey is still entitled to summary judgment if they present
unrebutted evidence of noninvidious reasons for taking the adverse action. Id. As
discussed above, Querrey has advanced such reasons for each of the allegedly

retaliatory actions, and Schaefer admitted in her deposition that she had no evidence to

-8-


Minute Order Form (06/97)

Cl

United States District Court, Northern District of Hlinois

Name of Assigned Judge
or Magistrate Judge

Charles P. Kocoras

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 3908 DATE 3/7/2002
CASE Schaefer vs. Querrey & Harrow, Ltd.
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented,]

DOCKET ENTRY:

() Oo Filed motion of [ use listing in “Motion” box above.]

(2) i] Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due.

(4) oO Ruling/Hearing on set for at

(5) a Status hearing{held/continued to] [set for/re-set for] on set for _ at

(6) 0 Pretrial conference[held/continued to] {set for/re-set for} on set for at

(7) ia Trial[set for/re-set for] on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OGeneral Rule21 CFRCP41(a)(1) C FRCP41{a)(2).

(0) «xf [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: We grant Querrey
& Harrow’s motion (Doc 16-1) for summary judgment and deny their motion (Doc 17-1) for a protective
order as moot. All matters in controversy having been resolved, final judgment is entered in favor of the
defendant and against plaintiff.

(il) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
No notices required. Number
number of notices,
Notices mailed by judge's staff.
Notified counsel by telephone. HAR O7 me
vo | Docketing to malt notices. - Wig — Lyi
vo | Mail AO 450 form, yupe a coa “rocketing deput
Copy to. 5ifigetmagistrate judge. poe

date maited notice

\. urtroom seg
deputy’s
initials

SCT

‘ Date/time received in
central Clerk’s Office

‘mailing deputy initials



Schaefer admitted that she had no evidence that the persons she identified as making
comments regarding her pregnancies also made decisions regarding her desk
assignment, phone access, pay increases or bonus, or her eventual termination. PI1.’s
Dep. pp. 167-68. She also contends that Querrey’s motivation is evidenced by several
human resources decisions, such as the timing ofa letter regarding insurance enrollment
for Sarah, the fact that her final evaluation took place in May rather than January 1999,
that she had to supply a copy of an uncle’s obituary to have an absence excused in
September 1998, and her status as a “floater” secretary. Even if it were not well settled
that a court will not micromanage the decisions of personnel departments, imposing our

ideas of proper employment practices upon businesses, we do not see how these actions

support Schaefer’s allegations of discriminatory intent. See, e.g., Nawrot_ v. CPC
Internat’|, 277 F.3d 896, 906 (7th Cir. 2002). The letter regarding insurance for her new
baby apparently arrived in enough time for her to successfully complete the enrollment
process. Her statements with regard to her evaluation do not show any malfeasance by
Querrey; Schaefer was still on leave in January 1999, making it impossible for her to
receive her annual evaluation at the same time as all of her colleagues. As to the
obituary, the absence seems to have been excused, and employers may request
certification even for leave that would be covered by the FMLA, 29 U.S.C. § 2613(a),

which does not include that stemming from avuncular illness or death. In addition, the

-7-


discovery and deposition schedules, Querrey filed a motion for a protective order to
prevent Schaefer from taking any depositions of firm employees, including Amy Kozy
(“Kozy”), the firm’s director of human resources. Subsequently, they moved for
summary judgment of Schaefer’s claims. Although the first motion was arguably
mooted by our closing discovery last December, the outcome of the summary judgment
motion completely forecloses the need for any protective order.
LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party bears the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548
(1986). The burden then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which the nonmovant bears the
burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the
pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings
and support its contentions with proper documentary evidence. Id. The court considers

the record as a whole and draws all reasonable inferences in the light most favorable to

the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th

-3-


cause of action in September 1998 and May 1999. The September memo noted nine
unexcused absences in a three-month period and cautioned that further instances of
unexcused time away from work could result in her termination.

In October 1998, Schaefer took leave from her job pursuant to the Family
Medical Leave Act to give birth to her fourth child, Sarah. She remained on leave until
March 29, 1999, Upon her return to work, Schaefer was not assigned to a permanent
desk, which meant she did not have access to an emergency phone line. Shortly after
her return, she was told that she would not receive a pay increase for the next year.

In the ensuing seven weeks, Schaefer missed four days of work and continued to
be late for work. On May 17, 1999, Schaefer received her annual performance
evaluation, which stated that she was not meeting Querrey’s expectations in several
areas, including organization, productivity, and attendance. The next day, Schaefer
received a memo specifically addressing her unexcused absences, which stated that it
was a final warning and that “[fJurther unexcused absences and/or tardiness will result
in termination of employment with Querrey & Harrow, Ltd.” Schaefer signed and dated
the memo on May 18, 1999. Her attendance problems continued, and on May 26, she
was fired.

Schaefer filed this suit pro se on May 25, 2001, alleging that Querrey’s actions

violated the Family Medical Leave Act (“FMLA”). Following several skirmishes over

-2-


UNITED STATES DISTRICT COURT

NORTHEASTERN DIVISION DOCKETED

MAR Q % 2002
SUSAN M. SCHAFER, )
Plaintiff,

vs. 01 C 3908
QUERREY & HARROW, LTD.,
Defendant. }
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on the motions of Defendant Querrey &
Harrow for summary judgment and for a protective order. For the reasons set forth
below, the motion for summary judgment is granted and the motion for a protective
order is denied as moot.

BACKGROUND

Plaintiff Susan Schaefer (“Schaefer”) is a legal secretary who was employed by
Defendant Querrey & Harrow (“Querrey”) from 1989 until 1999. Beginning in 1994
or 1995, Schaefer began to have several unexcused absences and was frequently late for
work or left before her scheduled time. Numerous performance evaluations or

memoranda noted these problems; Schaefer received the two most significant to this

AR