direct evidence of retaliation because they occurred over four months before Smith was
terminated. Second, defendants argue that Wyman was not the principal decision maker in the
decision to terminate Smith. Thus, even if Wyman’s comments reveal discriminatory animus,
there is no causal link between that animus and the decision to terminate Smith.

The Seventh Circuit has held,

It would cripple enforcement of the employment discrimination laws to insist that direct

evidence take the form of an employer’s statement “I’m firing you because you are ina

protected group.” Evidence of discriminatory motives must, it is true, have some
relationship with the employment decision in question. Inappropriate but isolated
comments that amount to no more than "stray remarks" in the workplace will not do.

However, "remarks and other evidence that reflect a propensity by the decisionmaker to

evaluate employees based on illegal criteria will suffice as direct evidence of

discrimination," even short of an admission of illegal motivation.
Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7" Cir. 1999)(internal citations omitted).
Wyman’s comment is remarkably close to the kind of direct admission of a discriminatory
motive that the Seventh Circuit thought unlikely in employment discrimination cases.

To constitute direct evidence of discrimination, however, discriminatory comments must
be “contemporaneous with the discharge or causally related to the discharge decision making
process.” Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7" Cir. 1996)(emphasis added).
Defendants are correct that a long period of time between a discriminatory comment and an
adverse employment action can defeat the inference of a causal relationship between them. Jd.
However, there is no “statute of limitations” governing the amount of time it takes to defeat the
inference of a causal relationship. The time period will differ according to the nature of the

remark and the context in which it was made. An isolated comment made only days before an

adverse employment action may not rise to the level of direct evidence, while a clear statement of

19


B. Whether Smith was Entitled to Leave Under the FMLA
Defendants admit that UCH obtained medical certification of Smith’s health condition
pursuant to the procedures specified in the FMLA, 29 U.S.C. § 2613(a), and officially designated

Smith’s leave of absence as FMLA leave for a'serious health condition. Defendants also admit

that they have no knowledge that Smith’s leav of absence was wrongful. Based on these

iL
admissions, on September 26, 2002, sm| maved for a protective order to prevent discovery of
‘i |

her confidential communications with her licensed psychotherapists, physicians, counselors,

iq

social workers, and other licensed health care practitioners. Smith argued that any further inquiry
into her confidential medical records would be improper under section 2613 of the FMLA, which
provides the procedures for an employer to contest the validity of an employee’s claim to a
serious health condition. Smith also argued that discovery of her confidential communications
with health care providers would violate her physician-patient privilege. On October 22, 2002,
this court granted Smith’s motion for a protective order. See Minute Order of October 22, 2002.

Smith now moves for summary judgment that she was entitled to leave under the FMLA.
Again, she points out that she provided UCH with proper medical certification of her condition,
that UCH officially designated her leave of absence as FMLA leave, and that defendants admit
they have no knowledge that Smith’s leave was improper. Defendants argue that UCH’s failure
to utilize the section 2613 procedures and its designation of Smith’s leave as FMLA leave should
not foreclose defendants from now having the opportunity to prove that Smith was not entitled
FMLA leave. Furthermore, defendants point out that they have no information that Smith’s leave
of absence was improper because the protective order prevented them from discovering such

information. Thus, defendants ask the court to deny summary judgment on this element of

13



of fact to infer the ultimate fact of intentional discrimination, and . . . no additional proof of
discrimination is required.” Perdomo v. Browner, 67 F.3d 140, 145 (7" Cir. 1995). Thus, the
court finds that a reasonable trier of fact could find that defendants retaliated against Smith for

taking FMLA leave.
ORDER

For the reasons stated above, Smith’s Motion for Partial Summary Judgment is granted
(#17). Defendants’ Motion for Summary Judgment is granted as to Count I and denied as to
Count II (#33). Trial is set for January 20, 2004. Final pretrial materials shall be submitted to
chambers not later than December 19, 2003. In the meantime, the parties will be referred to the

designated magistrate judge for a settlement conference. A final pretrial hearing is set for

January 9, 2004.
Enter: Khekep brn —
JOAN HUMPHREY LEFKOW
Date: November 20, 2003 United States District Judge

23


B. Reassignment of Duties

In early 1999, Smith developed symptoms of depression associated with menopause.
(Smith Dep. at 19-21.) She was frequently absent from work because of her symptoms. (Smith
Dep. at 29-32.) Every time Smith took time off, Wyman would “threaten” her, saying, “we’re a
very-extremely busy department; everybody is working very hard; I need to be there every day.
‘If you want your job, you’ll get here. If you don’t, there’s plenty of people out there who want
your job, and I will replace you.’” (Smith Dep. at 29-30.) Around July and August, 1999,
Smith’s symptoms became increasingly worse. (Smith Dep. at 29-32.) At that time, Smith told
Wyman that she needed to take “blocks of time off.” (Smith Dep. at 31.) Wyman told Smith that
she “needed to be there.” (Smith Dep. at 31.) However, Wyman testified that she did not believe
that Smith had misused her sick leave. (Wyman Dep. at 173.)

In September, 1999, Wyman removed Smith from direct patient care and from staff
supervision. (PI. St. of Add. Facts. 73.) Wyman assigned Milton Marshall the duties of
supervising the staff that had previously been performed by Smith. (Def. L.R. { 28-29.) No
additional duties were given to Smith when Marshall was assigned these duties. (Def. LR. { 31.)
Wyman considered this change in duties to be temporarily effective through the end of the year.
(Def. L.R. 33.) Wyman announced the change in duties at a staff meeting in November, 1999.
(ef. L.R. { 29.)

In explaining her decision to change Smith’s duties, Wyman told Smith that the job of
Chief Therapist had “grown too big for one person.” (Smith Dep. at 44.) She explained to the
staff that she was splitting up the duties so that “we could work smarter . . . instead of working

harder.” (Velazquez Dep. at 149-50.) Wyman testified, however, that she changed Smith’s



discriminatory intent may suffice as direct evidence even if it was made well before the adverse
action. The question is whether the statement is “evidence that someone with managerial
authority was animated by illegal employment criteria.” Venter v. City of Delphi, 123 F.3d 956,
972 (7" Cir. 1997). A reasonable jury could find that Wyman’s comment, even though it
occurred over four months before Smith’s termination is direct evidence that she was “animated

by illegal employment criteria.” |

However, unless Wyman played arole decision to terminate Smith, evidence of her
discriminatory animus is irrelevant. Defendants neue that Szerlag, not Wyman, made the
decision to eliminate the Chief Therapist position. In an employment discrimination case,
“Summary judgment generally is improper where the plaintiff can show that an employee with
discriminatory animus provided factual information or other input that may have affected the
adverse decision.” Carter v. Enterprise Rent-a-Car, No. 01 CV 4494, 2002 WL 1759821, at *4
(ND. Ill, July 29, 2002)(citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7 Cir. 1990). Wyman
testified that she and Szerlag “worked as a team.” Szerlag testified that he and Wyman believed
the Chief Therapist position could be eliminated without sacrificing revenue and patient care.
Szerlag also stated that his understanding of the duties of the Chief Therapist “was based on
information received from Brenda Wyman, as well as personal observation, and his experience as
Executive Administrator of the Department.” Given these facts, a reasonable jury could find that
Wyman’s discriminatory animus “tainted” the decision to terminate Smith.

B. Indirect Evidence of Retaliation

As in other retaliatory discharge cases, Smith can establish indirect evidence of retaliatory

discharge under the FMLA through an adaptation of the burden-shifting test established by

20



Once a defendant has rebutted a plaintiff's prima facie case, the plaintiff bears the burden
of persuasion to demonstrate that the employer’s stated reasons were false and that
discrimination was the real reason behind the adverse employment decision as issue. In an RIF

\
case, a plaintiff can show pretext ¢i i I stablishing that the RIF itself was pretextual or by

showing that the employer’s reas ‘luding the plaintiff in the RIF were pretextual.

iS
4]

Paluck v. Gooding Rubber Co., 221 F.3 1003, 1014 (7 Cir. 2000). Smith has not raised a

existence of a legitimate RIF at UCH. However,

genuine issue of material fact al
Smith has presented several facts that call into question defendants’ proffered reasons for

including Smith in the RIF. First, defendants claim that the position of Chief Therapist was

eliminated because it did not involve patient care. However, Wyman stated that

A fully-functioned chief therapist I’d estimate would spend up to 50% of their time
treating or simulating or seeing patients. 25% may be spent on quality improvement.
The other 25% may be spent on administrative duties, ordering supplies and dealing with
issues, unexpected things that may come up.

Wyman’s statement directly contradicts defendants’ proffered reasons for eliminating the
position. Furthermore, Velazquez testified that shortly after Smith was terminated, Marshall
announced at a meeting that he was the new Chief Therapist. The next year, Marshall was listed
as the Chief Radiation Therapist (“‘Chief RTT”) in the University of Chicago directory. These
facts directly contradict defendants’ assertion that the position of Chief Therapist was eliminated.
“Proof that the defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it can be quite
persuasive.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). The

rejection of a defendant’s proffered reasons for an adverse employment action “will permit a trier

22


Smith to seek a second or third opinion. Instead, it designated Smith’s leave of absence as
FMLA leave. Thus, this court finds that, as a matter of law, Smith was entitled to FMLA leave.
II. Smith’s Substantive Claim

Smith claims that defendants violated her substantive rights under the FMLA by not
returning her to her pre-leave position or an equivale} t position after she retummed from FMLA
leave. Defendants argue that when Smith returned fibm FMLA leave, she was given the same

duties she had in September, 1999. Defendants furth argue that any changes in Smith’s duties

after she returned from leave were de minimis changes. Thus, they contend that they are entitled
to summary judgment on Smith’s substantive claim.

The FMLA provides that an employee that takes FMLA leave “shall be entitled, on return
from such leave-(A) to be restored . . . to the position of employment held by the employee when
the leave commenced .. .” 29 U.S.C. § 2613(a)(1)(A)(emphasis added). It is undisputed that in
September, 1999, one month before Smith began her FMLA leave, Wyman removed Smith from
direct patient care and staff supervision with the understanding that the change in duties was to
be temporary. When Smith returned from FMLA leave, she was not allowed to treat patients nor
was she given any staff supervisory duties. Thus, according to the plain language of the FMLA,
Smith was returned to the position she held “when the leave commenced.”

Smith suggests that, because Wyman admits that she intended the change in Smith’s
duties in September, 1999, to be temporary, Wyman should have restored Smith’s pre-
September, 1999, duties when Smith returned from leave. However, if Wyman decided not to

restore Smith’s pre-September, 1999, duties because Smith took FMLA leave, then Smith’s

17



difficulties. (Def. L.R. J 131.) Ketonya Velazquez testified that shortly after Smith was
terminated, Marshall announced at a meeting that he was the new Chief Therapist. (PI. Stat. of
Add. Facts { 30.) In the 2001-2002 University of Chicago Directory, Marshall was listed as the
Chief Radiation Therapist (“Chief RTT”) (PI. Stat. of Add. Facts 31.) In the 1999-2000
Directory, Smith was listed as the “Chief RTT.” (Pl. Stat. of Add. Facts { 32.)
DISCUSSION

Congress enacted the FMLA in part “to entitle employees to take reasonable leave for
medical purposes.” 29 U.S.C. § 2601(b)(2). The FMLA establishes two categories of broad
protections for employees who need to take such leave. First, the FMLA grants eligible
employees certain substantive statutory rights. See King v. Preferred Technical Group, 166 F.3d
887 891 (7" Cir. 1999). The FMLA provides eligible employees of a covered employer the right
to take unpaid leave of up to twelve work weeks in any twelve-month period for a “serious health
condition” as defined by the FMLA. /d.; see 29 U.S.C. § 2612(a)(1). After the period of
qualified leave expires, the employee is entitled to be reinstated to the “position of employment ~
held when the leave commenced” or “an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment.” Jd; see 29 U.S.C. § 2614(a). To
insure the availability of these guarantees, the FMLA declares it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.” Id.;
see 29 U.S.C. § 2615(a)(1).

In addition to the substantive guarantees, the FMLA also affords employees protection in
the event they are discriminated or retaliated against for exercising their rights under the Act. Id.;

see 29 U.S.C. § 2615(a)(1) & (2). Specifically, “an employer is prohibited from discriminating



154-55.) The FMLA Request form signed by Smith on January 4, 2000, was signed by Wyman,
as supervisor, on January 21, 2000. (Def. L.R. | 56.) On January 26, 2000, Sonya Davis of UCH
signed the January 4, 2000, FMLA Request form, officially designating Smith’s time off from
November 22, 1999, until January 10, 2000, as FMLA leave. (Def. L.R. | 57.) UCH and Wyman
have stated that they have no information il Smith’s leave of absence was wrongful. (Def. Ans.
to Interrog. 17)

While Smith was on FMLA leave, Wyman made “numerous” comments indicating that
she was angry about the fact that Smith wrad taking FMLA leave. (Def. L.R. 4 60.) Wyman
stated, for example, that “this family medical leave is too much. This is just too much work.
This is bordering on job abandonment. She needs to be here. She needs to do her job. If she
wants her job, if she cares about her job, she would be here.” (Velazquez Dep. at 31-32.)

D. Smith’s Return to Work

Smith returmed to work at UCH on January 13, 2000. (Def. L.R. J 62.) Upon her return,
Wyman instructed her to check charts and do chart rounds and payroll, which were part of her
duties as Chief Therapist. (Def. L.R. | 64.) However, every time Smith tried to treat patients,
Wyman would instruct Smith to perform a different task and have another therapist treat the
patient. (Def. L.R. ] 67.) Smith testified that Wyman never told her directly that she was not
allowed to treat patients, but, according to Smith, Wyman “made it clear she didn’t want me to
treat patients. She just kept finding things for me to do other than treat.” (Smith Dep. at 70.)
Wyman, however, testified that she asked Smith “to not participate in direct patient care and to

not oversee the staff treating patients. She was free to participate in all other aspects of her job.”

(Def. L.R. 7 68.) Smith never discussed Wyman’s prevention of her from treating patients with



duties because of Smith’s “unpredictable behavior,” irregular attendance, and because the
“interpersonal relationships between [Smith] and the therapists were not good.” (Def. L.R. { 34;
Wyman Dep. at 135, 227.) Wyman explained to Chester Szerlag (“Szerlag”), the Department’s
Executive Administrator, that it was “important to remove Joella [Smith] from direct patient care
and supervision of therapists.” (Wyman Aff. at 226.) Szerlag and Wyman “worked as a team,”
so Szerlag was aware of Wyman’s concems about Smith’s attendance and behavior and knew
that these were the reasons for the change in Smith’s duties. (Wyman Dep. at 227.)
C. Smith’s FMLA Leave

After the staff meeting in November, 1999, at which Wyman announced the change in
Smith’s duties, Smith asked to go home. Wyman arranged for co-workers to take Smith home,
as she looked “physically distressed and not well.” (Def. L.R. ¢ 37.) Wyman recommended that
Smith see a doctor. (Def. L.R. | 38.) She also recommended that Smith talk to the benefits
department of human resources and take FMLA leave. (Def. L.R. q 41-42.)

Smith was off of work at UCH from November 18, 1999 until January 13, 2000. (Def.
L.R. ¥ 44.) Smith signed a UCH form called “Family and Medical Leave Application” on
December 22, 1999, and submitted it to UCH, requesting FMLA leave from November 20, 1999,
until January 5, 2000. (Def. L.R. | 50.) A “Certification of Health Care Provider” form,
completed by Dr. Judith Badner and dated December 23, 1999, was submitted to UCH. (Def.
L.R. 451.) Smith signed a UCH form called “Family Medical Leave Act Request” on January 4,
2000. (Def. L.R. 4 53.) On January 6, 2000, Dr. Badner submitted another “Certification of
Health Care Provider” form, this one in connection with Smith’s January 4, 2000, application for

FMLA leave, stating that Smith’s symptoms had been alleviated with medication. (Def. L.R.



claim is properly understood as a retaliation claim, not a substantive claim. Thus, the court finds

that summary judgment for defendants is proper on Smith’s substantive claim.

Ill. Smith’s Retaliation Claim

Smith claims that defendants terminated her on June 5, 2000, in retaliation for taking
valid FMLA leave.* Defendants claim that Smith’s position was eliminated as part of a
legitimate RIF. When a plaintiff alleges a retaliatory discharge under the FMLA, the plaintiff
must establish that the employer engaged in intentional discrimination. King, 166 F.3d at 892.
As in other retaliatory discharge cases, a plaintiff alleging retaliatory discharge under the FMLA
may establish that an employer engaged in intentional discrimination through direct or indirect
evidence. Jd. Smith alleges that there is both direct and indirect evidence that defendants
retaliated against her for exercising her rights under the FMLA.
A. Direct Evidence of Retaliation

While Smith was on FMLA leave, Wyman stated that “this family medical leave is too
much. This is just too much work. This is bordering on job abandonment. [Smith] needs to be
here. She needs to do her job. If she wants her job, if she cares about her job, she would be
here.” Velazquez testified that Wyman made “numerous” similar comments while Smith was on
leave. Defendants offer two arguments as to why Wyman’s statements do not constitute direct

evidence of FMLA discrimination. First, defendants argue that Wyman’s comments are not

‘Tn her Response to Defendants’ Motion for Summary Judgment, Smith also claims that Wyman removed
her patient treatment and staff supervisory duties in September, 1999, as retaliation for requesting FMLA leave.
Smith did not plead this alleged adverse job action in her original complaint and has not amended her complaint to
add this additional basis of liability. Thus, the court does not consider this claim.

18



Szerlag then spoke with the work group leaders under him, including Wyman, and told
them to think about how to reduce costs without sacrificing quality of care or productivity. (Def.
L.R. | 92.) Wyman testified that the group leaders were to look at “positions and not people in
determining where the cut should be made.” (PI. Stat. Add. Facts ¥ 26.) Szerlag spoke
individually to Wyman and suggested that the Chief Therapist position be eliminated because he
believed that it was not involved in direct patient care and that its elimination would not impact
revenue. (Def. L.R. | 95.) His understanding of the Chief Therapist’s duties was based on
information received from Wyman as well as personal observation and experience as Executive
Administrator of the Department. (Def. L.R. { 110.)

Wyman’s initial response was that no therapist position, including Chief Therapist, could

be cut. (Def. L.R. 4 96.) However, Szerlag and Wyman eventually determined that the position
of Chief Therapist could be eliminated without sacrificing patient care or revenue. (Def. L.R.
{ 108.) Wyman testified that the Chief Therapist position could be eliminated because it was
“never defined to be assigned to a treatment machine or to perform patient care full time.” (Def.
LR. 112.) Similarly, Szerlag testified that the decision to eliminate the Chief Therapist
position was based on his belief that the Chief Therapist position was “more supervisory in
nature than providing direct patient care.” (Def. L.R. { 108.) Again, Szerlag’s information about
the Chief Therapist’s duties was based on information he received from Wyman as well as
personal observation and his experience as Executive Administrator of the Department. (Def.
LR. 110.)

On June 5, 2000, UCH terminated Smith’s employment. (Def. L.R. § 130.) Wyman told

Smith that the position of Chief Therapist was being eliminated due to financial and operational


1, Micute Grade Form (66497)

United States District Court, Northern District of Illinois

Nai if Assi
vor Magitrate Judge Joan H. Lefkow “than Assigned Jade
CASE NUMBER 02 C 221 DATE 11/20/2003
CASE Joella Smith vs. University of Chicago Hospitals, et al.
TITLE

of the motion being presented.}

[ln the following box (a) indicate the party filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the natur

pretrial conference is set for 1/9/04 for 4:00 p.m.

MOTION:
t
DOCKET ENTRY: il
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) oOo Brief in support of motion due__.
(3) oOo Answer brief to motion due___. Reply to answer briefdue__.
(4) oO Ruling/Hearingon___setfor___—_—sat
(5) Qa Status hearing(held/continued to] [set for/re-set for]on__——ssetfor__—_aat
(©) a Pretrial conference[held/continued to] [set for/re-set for] on _set for at.
(7) Oo 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]
OFRCP4(m) OLocal Rule 41.1 COFRCP41(a(1) CFRCP41(a)(2).
ao [Other docket entry} Plaintiff's motion for partial summary judgment [17-1] is granted.

Defendants’ motion for summary judgment [33-1] is granted as to Count I and denied as to Count I. Trial
set for 1/20/04 at 10:00 a.m. Final pretrial materials shall be submitted to chambers by 12/19/03. Final

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

y
,
ws

courtroom 0 +
MD deputy’s Oeild sae us Gad 0
initials _
+ Date/time received in
central Clerk's Office sralleg deputy itinke

(il) [For further detail see order attached to the original minute order.]
‘No notices required, advised in open court. 4 o Docament, S
No notices require. anes of sie patie
W | Notices mailed by judge's staff. NOV 2 4.2003
Notified counsel by telephone. “ute docked



A. Whether Wyman was Smith’s “Employer” Under the FMLA

Wyman contends that she is entitled to summary judgment because she, as an individual,
cannot be held liable as an “employer” under the FMLA. The FMLA defines an employer as
“any person engaged in commerce or in any industry or activity affecting commerce who
employs 50 or more employees for each working day . . .includ[ing] any person who acts, directly
or indirectly, in the interest of an employer to any of the employees of such an employer. . . .”

29 U.S.C. § 2611(4)(A)(i) & (ii).

Neither the Supreme Court nor the Seventh Circuit has addressed whether individuals can
be held liable as “employers” under the FMLA. However, other judges in this district have
consistently held that individuals can be held liable under the Act. Evans v. Henderson, 2000 WL
1161075 (N.D. Ill. 2000)(Conlon, J.); Llante v. Am. NTN Bearing Mfg. Corp., 1999 WL 1045219
(N.D. Til. 1999)(Norgle, J.); Divizio v. Elmwood Care, Inc., 1998 WL 292982 (N.D. Ill.
1998)(Kocoras, J.); Beyer v. Elkay Mfg. Co., 1997 WL 587487 (N.D. 1997)(Reinhard, J.);
Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1995)(Aspen, C.J.). The primary rationale for this
holding has been that the FMLA “tracks word for word the definition [of employer] used in the
Fair Labor Standards Act (“FLSA”),” 29 U.S.C. § 203(d), which does subject individuals to
liability. Freemon, 911 F. Supp. at 330-31; see Evans, 2000 WL 1161075 at *3; Llante, 1999 WL
1045219 at *5.

Defendants argue that the court should not rely on the meaning of employer under the
FLSA when interpreting the FMLA. While recognizing that the definitions of employer in the
two statutes use identical language, they point out that there is an important difference in the two

statutes. The FLSA applies to all employers, no matter the size, while the FMLA only applies to

11


against employees . . . who have used FMLA leave.” Id.(quoting 29 C.F.R. § 825.220(c)). An
employer may not consider the taking of FMLA leave as a negative factor in employment
actions. Jd.

Smith alleges that defendants deprived her of her substantive statutory rights under the
FMLA by not returning her to the position she held prior to taking FMLA leave or to an
equivalent position. Smith also alleges that defendants retaliated against her for exercising her
rights under the FMLA by terminating her because she took FMLA leave. Defendants contend
that Smith was returned to a position equivalent to her pre-leave position and that Smith was
terminated in an RIF and not in retaliation for exercising her rights under the FMLA.

I. Common Elements of Smith’s Substantive and Retaliation Claims

To prevail on either her substantive or her retaliation claim, Smith first must prove
(1) that she was an eligible employee under the FMLA, 29 U.S.C. § 2611(2); (2) that defendants
were employers covered by the FMLA, 29 U.S.C. § 2611(4); and (3) that she was entitled to
leave under the FMLA, 29 U.S.C. § 2612(a)(1). See Dey v. L. Marshall Roofing and Sheet Metal,
No. 01-C-9810, 2000 WL 773989, at *2 (N.D. ll. April 29, 2002).

Smith argues that she is entitled to summary judgment on these three elements of her
claims. Defendants admit that Smith was an eligible employee under the FMLA. UCH also
admits that it was an employer covered by the FMLA. Wyman argues, however, that she was not
Smith’s “employer” under the FMLA and thus is entitled to summary judgment as to Smith’s
complaint in its entirety. Defendants also argue, for reasons discussed below, that summary

judgment on the third element of Smith’s claim is inappropriate at this time.

10


any of Wyman’s superiors or with the employee labor relations department because she was
afraid Wyman would fire her if she did. (Def. L.R. 1 75-79.)
E. Smith’s Termination

In early 2000, senior management of UCH determined that a multi-million dollar budget
shortfall would exist for fiscal years 2000 and onward, and determined that a reduction in force
(“RIF”) was required.’ Each of the several Vice Presidents of the Hospital were to make cuts in
their respective budgets of approximately 5% of total expenses. (Def. L.R. { 88.) In February,
2000, Kenneth P. Kates (“Kates”), the Vice President responsible for the Department met with
Szerlag. Kates instructed Szerlag to recommend positions that could be eliminated. Kates
informed Szerlag that the Department of Radiation Oncology was expected to cut personnel costs
of approximately $100,000 per fiscal year and that these cuts were not to affect the Department’s

revenue targets.” (Def. L.R. { 83, 89, 91.)

‘Smith denies this statement “based on the fact that it is irrelevant, immaterial and inadmissible having no
bearing on any issue in the case and should be stricken,” Given that defendants claim that Smith was terminated
because of an RIF, the Court finds this statement both material and highly relevant. Since Smith provides no citation
to the record to support her denial, the court deems this fact admitted. See Bordelon v. Chicago Sch. Reform Bd. of
Trustees, 233 F.3d 524, 529 (7" Cir. 2000)(A district court is not required to “wade through improper denials and
legal arguments in search of a genuinely disputed fact.”).

2Smith denies that the RIF applied to the Department. As support for her denial, she cites to Velazquez’s
deposition testimony that Wyman publicly announced that Szerlag had told her that there would be no job cuts in the
Department because the Department was “a money making department,” and “we wouldn’t have to lose any
positions.” (PI. Resp. to Def. L.R. 4 89-90.) Because Smith is offering this testimony to show that the RIF did not
apply to the Department, it is hearsay and will not be considered by the court.

Smith also cites to Milton Marshall’s deposition testimony that he knew nothing about an RIF in the
Department until Smith was terminated. Smith implies that Marshall would have known about any RIF because he
was the “acting Chief of the unit.” (PI. Resp. to Def. L.R. 56.1 { 89-90, 92-93, 95.) However, Marshall’s lack of
knowledge about an RIF in the Department does not undermine defendants’ statement that the RIF applied to the
Department. Smith admits that Marshall was not given the position of Chief Therapist until “the time of Ms. Smith’s
termination.” (P1. St. of Add. Facts § 29.) Furthermore, even if Marshall was “acting” as Chief Therapist, none of
the Chief Therapists duties indicate that Marshall should have known about an RIF. (See Smith Dep. at 37-42.)
Thus, the court accepts that an RIF applied to the Department.

7



McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Brown v. Chicago Sun-Times, Inc.,
No. 00 C 6728, 2002 WL 31844984 (N.D. Ill. Dec. 17, 2002)(citing Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640 (7" Cir. 00. Under this method, a plaintiff must show (1) that
she engaged in a statutorily protected activig ; (2) she was subjected to an adverse employment
action; (3) she was performing her job in a dhistctory manner; and (4) she was treated less
favorably than any other similarly situated cployee who did not engage in such protected
activity. Jd. If the plaintiff establishes a prima facie base of retaliation in this manner, the burden
then shifts to the defendant to articulate a legitimate non-discriminatory reason for the adverse
employment action. "If the defendant presents unrebutted evidence of a noninvidious reason for
the adverse action, [it] is entitled to summary judgment. Otherwise, there must be a trial." Jd.
(quoting Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7" Cir. 2002). Under
this method, establishing a causal link between the protected expression and adverse employment

action is not required. Id.

Defendants do not dispute that Smith has established a prima facie case. Thus, the
burden shifts to defendants to articulate a legitimate, non-discriminatory reason for Smith’s
termination. At this stage in the analysis, “the [employer] need not persuade the court that it was
actually motivated by the proffered reasons.” Texas Dept. of Community Affairs v. Burdine,

450 U.S, 248, 254 (1981). It must only raise a genuine issue of material fact as to whether it
discriminated against the plaintiff. Defendants contend that the position of Chief Therapist,
which Smith held, was eliminated in an RIF because the position did not involve direct patient -
care and its elimination would not impact revenue. This explanation is both reasonable and non-

discriminatory. Thus, defendants have satisfied their burden of production.

21


also called Supervisor of Radiation Oncology. (Def. L.R. | 14.) Wyman, Technical Director for
the Department, was Smith’s supervisor as Chief Therapist. (Def. L.R. J 13.)

As of June, 1999, Smith’s job duties as Chief Therapist consisted of treating patients with
ionized radiation; weekly chart checking for accuracy and completeness; assisting in weekly
chart rounds for the medical staff; assisting on the treatment machines; relieving other employees
for lunch, vacation, and sick time; filing port films; making sure that doctors signed port films on
a daily basis; payroll; supervising staff; and inventory. (Def. L.R. { 22.) “Supervising staff’
meant scheduling vacations, hours, start times, and assigning therapists to rotations on treatment
machines (which was done with Wyman). (Def. L.R. J 23.)

It is unclear how often Smith treated patients before September, 1999. Wyman testified

A fully-functioned chief therapist I’d estimate would spend up to 50% of their time
treating or simulating or seeing patients. 25% may be spent on quality improvement.
The other 25% may be spent on administrative duties, ordering supplies and dealing with
issues, unexpected things that may come up. (Wyman Dep. at 222.)
However, Wyman’s deposition testimony suggests that Smith was not a “fully-functioned chief
therapist,” that is, she spent something less than fifty percent of her time treating patients. (Jd.)
Nevertheless, Smith regularly was involved in direct patient care before September, 1999. (Smith
Dep. at 53-54; Def. L.R. { 61.) Wyman states that she has no reason to believe that any patient
did not receive high quality patient care from Smith when she administered treatments on a

treatment machine. (PI. St. of Add. Facts { 23.)



Smith’s claim or to allow discovery of Smith’s medical records so that defendants can ascertain
if defenses exist to Smith’s claimed entitlement to FMLA leave.

The FMLA provides employers with a procedure for contesting whether an employee is
entitled to FMLA leave for a “serious health condition.” Under section 2613(a) of the FMLA, an
employer may require that an employee’s request for FMLA leave “be supported by a
certification issued by a health care provider of the employee.” An employee’s medical
certification “shall be sufficient” if it states

(1) the date on which the serious health condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within the knowledge of the health care provider

regarding the condition;

0
(4)(B) . . . a statement that the employee is unable to perform the functions of the position

of the employee.
29 U.S.C. § 2613(b).

If an employer questions the validity of the medical certification submitted by the
employee, it may require the employee to obtain the opinion of a second health care provider
designated and approved by the employer. 29 U.S.C. § 2613(c)(1). If the second opinion differs
from the opinion of the original certification, the employer may require the employee to obtain
the opinion of a third health care provider designated or approved jointly by the employer and the
employee. 29 U.S.C. § 2613(d)(1). The opinion of the third health care provider “shall be
considered binding on the employer and the employee.” 29 U.S.C. § 2613(d)(2).

The issue before the court is whether an employer that chooses not to utilize this
procedure for contesting an employee’s entitlement to FMLA leave for a serious health condition

may later challenge the employee’s entitlement to the leave in a civil action. The structure and

14


binding procedure ensures a speedy determination of an employee’s need for medical leave
where the employer has reason to question the validity of the initial certification.

Defendants argue that not allowing discovery of Smith’s medical records to determine if
she was entitled to FMLA leave “would prevent employers from acting on information received
after a designation of FMLA leave was made, bet evidence of fraud .. . The impact on
employers will be a chilling in their willingness to designate leave as FMLA without utilizing the

i i i
protections of FMLA allowing second and third ovis: .” The court need not decide if

evidence of fraud would allow an employer to discover an 1 employee’ s medical history after a
designation of leave as FMLA, because defendants have no evidence of fraud, and they should
not be allowed to rummage through Smith’s medical records in the hope of finding such
evidence. Furthermore, an employer that requires an employee to seek a second or third opinion
must do so “at the expense of the employer.” 29 U.S.C. 2613(c)(1) & (d)(1). The additional
expense to the employer is a sufficient counter to any possible “chilling effect.”

This court finds that an employer that chooses not to utilize the second and third opinion
procedure for contesting an employee’s entitlement to FMLA leave for a serious health condition
may not later seek discovery of an employee’s medical records to challenge the employee’s
entitlement to the leave in a civil action. On December 23, 1999, Smith provided UCH with a
“Certification of Health Care Provider” completed and signed by Dr. Judith Badner. That

certification was “sufficient” under the standards of 29 U.S.C. § 2613(b).> UCH did not require

>The “Certification of Health Care Provider” completed by Badner was a UCH form document that
essentially recites the statutory elements for sufficient certification.

16



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 aiid
assess the proof as presented in depositions, answers to interrogatories, admissions, and
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 non-moving
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. Id. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7" 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 (7" Cir. 2000), the court must construe all facts in a light most favorable to the
non-moving 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

A. Background

Smith has been a licensed radiation therapist since 1981. (Def. L.R. | 8.) Smith was hired
by UCH in January of 1981 as a radiation therapist in the Department of Radiation Oncology (the
“Department”). (Def. L.R. | 9.) She was promoted to Senior Technologist on or about

September, 1983. (Def. L.R. | 10.) In September, 1987, Smith was promoted to Chief Therapist,


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETE

EASTERN DIVISION
NOV 24 2003
JOELLA SMITH, )
)
Plaintiff, )
)
v. ) No. 02 C 0221

) Judge Joan H. Lefkow
UNIVERSITY OF CHICAGO )
HOSPITALS and BRENDA WYMAN, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, JoElla Smith (“Smith”), brings this action against University of Chicago
Hospitals (““UCH”) and Brenda Wyman (“Wyman”) (collectively “defendants”), alleging
violations of the substantive (Count J) and anti-retaliation (Count Il) provisions of the Family
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seg. Before the court are Defendants’
Motion for Summary Judgment and Smith’s Motion for Partial Summary Judgment. Smith
moves for partial summary judgment as to the first three elements she must prove in her case:
1) that she was an employee under the FMLA; 2) that defendants are employers under the
FMLA; and 3) that Smith was entitled to leave under the FMLA. This court has jurisdiction
pursuant to 29 U.S.C. § 2617(a)(2) and 28 U.S.C. § 1331. For the reasons set forth below, the
court grants in part and denies in part Defendants’ Motion for Summary Judgment and grants

Smith’s Motion for Partial Summary Judgment.

(


employers with fifty or more employees within a seventy-five mile radius. Defendants argue that
“it would be non-sensical for Congress to limit liability to larger employers while at the same
time imposing liability on individuals. . . . In light of the size limitations written into the FMLA,
individual liability would seem to be an absurd result.”

This court fails to see how this result is “absurd” or “non-sensical.” Congress’ decision
to exempt smaller employers from the FMLA’s coverage apparently was motivated by a desire to
shield smaller employers from the costs of providing mandated family and medical leave. See,
e.g., S. REP. NO. 103-3, pt. IX, at 49 (1993)(Minority views of senators expressing concem that
the FMLA “will burden employers, especially smaller and medium-sized businesses, with the
costs of mandated leave regardless of their ability to absorb such costs.”). However, individuals
“who act[], directly or indirectly, in the interest of an employer” are not burdened by the costs of
providing family and medical leave. Thus, there is no reason to conclude that Congress intended
to exempt such individuals from the FMLA’s coverage.

This court finds no reason to depart from the view that the FMLA, like the FLSA, allows
for individual liability “provided the defendant had supervisory authority over the complaining
employee and was responsible in whole or in part for the alleged violation.” Riordan v. Kempers,
831 F.2d 690, 694 (7" Cir. 1987)(interpreting the definition of employer under the FLSA). It is
undisputed that Wyman was Smith’s supervisor during the period in question. Thus, Wyman
falls within the FMLA’s definition of “employer” and may be held liable if Smith produces

evidence to show that Wyman “was responsible in whole or in part for the alleged violation.”

12


internal logic of section 2613 of the FMLA suggest that the certification procedures provided are
the exclusive means for an employer to challenge the validity of an employees medical
certification. Although the FMLA regulations explicitly permit an employer to deny leave to an
employee who does not produce medical certification, 29 C.F.R. § 825.312(b), there is no
explicit authority for an employer to deny leave to an employee who does produce medical
certification. To the contrary, Congress stated that if an employee’s medical certification meets
certain requirements, it “shall be sufficient.” 29 U.S.C. § 2613(b). The FMLA regulations add
further that “the employer may not request additional information from the employee’s health
care provider,” 29 C.F.R. § 825.307(a). If an employer has the choice of skipping the certification
process and instead engaging in discovery of an employee’s medical records after the employee
files a civil action under the FMLA, the term ‘sufficient’ and the provisions to protect the privacy
of the employee’s medical history are rendered meaningless. See Sims v. Alameda-Contra Costa
Transit District, 2 F, Supp. 2d 1253, 1262-63 (N.D. Cal. 1998).

Furthermore, the regulations provide that if an employer does seek a second (or third)
medical opinion, “the employee is provisionally entitled to the benefits of the Act” while the
process is being pursued. 29 C.F.R. § 825.307(a)(2). This implies that the employee’s
submission of a complete medical certification is sufficient to trigger FMLA protection unless
and until there is contrary medical evidence, The provision suggests that the second and third
medical opinion process is the exclusive verification option for an employer that has reason to
doubt the validity of an employee’s medical certification. Sims, 2 F. Supp. 2d at 1262.

Moreover, the opinion of the third health care provider “shall be considered to be final

and shall be binding on the employer and employee.” 29 U.S.C. § 2613(d)(2). This final and

15