and therefore, Centeno is not similarly situated to her.

Accordingly, Micro Center is entitled to summary judgment on Mendoza’s Title VII
claim because she has failed to identify a similarly situated individual who was treated more
favorably than she was.

B. Micro Center’s Proffered Reason For Discharge Is Not Pretextual

In addition, and independently, Micro Center is entitled to summary judgment on Count II
because Mendoza has failed to cast meaningful doubt on Micro Center’s non-pretextual reason
for her termination—that the company routinely terminates employees (male and female) whom
it understands not to have returned to work at the end of their FMLA leave. In this regard, Micro
Center offers evidence that it terminated Mendoza’s employment because it believed that
Mendoza had exceeded her twelve weeks of FMLA leave. (Def. SF ff] 34, 37-38, 53-55; Pl. SF
(D.E. 30) 4 5.'5) Mendoza casts no meaningful question as to the truthfulness of this reason.
Micro Center also offers unrebutted and unchallenged evidence that it has terminated thirteen
employees in its Chicago store for failing to return from a leave of absence. (Def. SF 4] 58-59.)
Six of those terminations involved employees who were on FMLA leave and did not return to
work after taking 12 weeks of such leave. (/d.) Three of the six FMLA leaves were medical
FMLA leaves, and the other three were pregnancy related. (/d.) Of the employees who were

terminated for failing to return from a medical FMLA leave unrelated to a pregnancy, two of the

'S Mendoza attempts to deny Micro Center’s statement that if it had known that
Mendoza’s FMLA leave did not end until January 5, and if Mendoza had shown up for work on
January 6, she would have been reinstated. (Def. SF { 38.) Mendoza’s denial is non-responsive
and lacks evidentiary support, and thus, the Court deems Micro Center’s statement admitted.

20


The Court respectfully rejects Defendant’s argument that Mendoza’s testimony is
insufficient to preclude summary judgment. (See D.E. 25 at 6-7.) Defendant’s principal
contention, that “self-serving deposition testimony, without corroborating evidence, is simply
insufficient to create a genuine issue of material fact,” (/d. at 7), simply cannot be squared with
Seventh Circuit precedent and the record in this case. At trial, Defendant may be able to use its
proffered arguments so as to impeach Mendoza’s sworn trial testimony—for example, with the
fact that Mendoza drew disability benefits following the pregnancy through February 11, 2002."
Micro Center also points to the fact that Mendoza indisputably never reapplied for her old job or
for any position at Micro Center after she stopped receiving disability payments in February
2002. Such evidence may cut against her testimony at trial that she was ready and able to return
to work on January 6, but it is insufficient to warrant summary judgment for Defendant. See also
Fliss v. Movado Group, Inc., No. 98 C 3383, 2000 WL 1154633, at *5 (N.D. Ill. Aug. 14, 2000)
(Ashman, M.J.) (holding that judicial estoppel was not appropriate in an ADA claim where
plaintiff made unswor statements to long-term disability insurer that contradicted plaintiff's
position that she was able to work); id. (“Plaintiff's unsworn statements and representations,
while perhaps affecting Plaintiff's credibility, will not be considered in the judicial-estoppel

analysis.”).'!

© Defendant offers no evidence or argument that Mendoza ever made any swom
statements about her disability in connection with drawing the short-term and long-term
disability benefits in January and February 2002.

"' Fliss v. Movado is one of a number of cases to apply the Supreme Court’s decision in
Cleveland y. Policy Management Systems Corp., 526 U.S. 795 (1999), which held that in ADA
cases where a plaintiff is faced with his “previous sworn testimony asserting ‘total disability’ or
the like, the court should require an explanation of any apparent inconsistency with the necessary
elements of an ADA claim.” Jd. at 806 (emphasis added). This Court searched for and found no

14


regarding her medical condition and when she would be available to return to work. (Pl. SF ]
12.) Cardoso-Duris told Mendoza that if she did not return to work on January 1, Micro Center
would have to terminate her employment. (/d. {| 14.)

Mendoza gave birth on January 1, 2002. (Def. SF 4 30.) Mendoza states that she called
Micro Center on January 2 regarding returning to work, and she was told to speak with Cardoso-
Duris. (Pl. Resp. to Def. SF 431.) Mendoza spoke with Cardoso-Duris on January 4 about when
Mendoza would be able to return to work. (Def. SF § 30.) Precisely what was said during this
conversation is disputed. Cardoso-Duris testified in her deposition that “{Mendoza] told me she
would be able to return to work in six to eight weeks.” (/d.; Def. Ex. B at 94.) Mendoza testified
as follows regarding the January 4 conversation:

(Cardoso-Duris] told me that I would be able — would I be able to return back in six

weeks, and I said sure. I mean I just had a baby. | already had four other pregnancies

before. This would have been my fifth, and I was a pro. I could have ~— I was ready to go

back to work, but she said six weeks, and I said sure, no problem. I mean I never told her

I couldn’t come back to work.‘
(Pl. Resp. to Def. SF 31; PI. Ex. A at 21.) When asked specifically whether she ever told
Cardoso-Duris that she was not able to return to work for another six weeks, Mendoza answered,
“No.” (/d.)

Because Mendoza was unable to return to work on or by December 31, 2001, Cardoso-
Duris informed Mendoza on January 4, 2002, that Micro Center would process her paperwork

terminating her employment and that Mendoza would have to reapply when she was able to

return to work. (Def. SF 4 32; Pl. SF {J 16, 17; Def. Resp. to PI. SAF 4 4.) Also during the

* The same portion of this conversation was described by Mendoza in different ways, as
described below.


three terminated employees were male and one was female. (id.)'®

The Seventh Circuit instructs that this Court does “not sit as a superpersonnel
department” that reexamines the propriety, correctness, or wisdom of any otherwise lawful
personnel decision. Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 785 (7th Cir.
2004) (citation omitted). Under Title VII, “the focus of a pretext inquiry is whether the
employer's stated reason was honest, not whether it was accurate, wise, or well-considered.” /d.
at 784 (internal quotation and citation omitted). The Seventh Circuit also has instructed
repeatedly that arguing about whether a company was correct or not concerning an honestly held
basis for an employee’s firing is “a distraction.” Green v. Nat’l Steel Corp., 197 F.3d 894, 900
(7th Cir. 1999); Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997). Put
differently, under Title VII, a company can be mistaken about a reason that led to an employee’s
termination, so long as the company’s decision to terminate was not infected by sexism or
bigotry.

Mendoza does not offer properly supported evidence to create a triable issue concerning
whether Micro Center’s articulated reason for firing Mendoza is pretextual. See, e.g., Davis, 368
F.3d at 784 (“{A] pretext for discrimination . .. means something worse than a business error;
pretext means deceit to cover one’s tracks.” (internal quotations and citations omitted));

Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000) (““[Pretext] means a

‘© Mendoza’s attempt to deny the factual assertions in Defendant’s Statement of Fact 58
by stating that she “lacks the information to admit or deny the statement contained” therein is
impermissible under local rules. See, e.g., LR 56.1(b)(3)(A); PXRE Reinsurance Co. v.
Lumbermens Mutual Cas. Co., No. 03 C 5155, 2004 WL 2387637, at * 8 n.5(N.D. Ill. Oct. 21,
2004) (Shadur, J.) (citing McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998));
see also See Malec y. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (“[A] general denial is
insufficient to rebut a movant’s factual allegations.”).

21


Micro Center’s proffered nondiscriminatory reason for terminating Mendoza is pretextual,
summary judgment is appropriate as to Count II.
CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is granted with
respect to Count II, Defendant’s motion, and Plaintiffs Cross-Motion, for summary judgment on
Count I are both denied.

So ordered.

Uh te

Mark Filip
United States District Judge
Northern District of Illinois

Date: cfafos

23


assessment of two otherwise-similar employees who have been absent on leave and on whether
the employer believes such an employee should be retained for the present time or let go in favor
of other options. As a result, it appears that Centeno is not similarly situated in all material
respects for purposes of evaluating the employer’s treatment of the two individuals. See, e.g.,
Rogers, 320 F.3d at 755.

In addition, and independently, Mendoza does not adduce sufficient facts to create a
meaningful factual dispute concerning Centeno’s return date. Mendoza’s only proffered
“evidence” in support of her contention that Centeno took more than twelve weeks of leave is her
deposition testimony. She testified, “I just know as an employee working there he wasn’t on the
schedule for a numerous amount of months.” (Def. Ex. C (Mendoza Dep.) at 14; see also id. at
157-58 (“He’s on the supervisor’s schedule, and I’m on the supervisor’s schedule. He was gone
for a long time. .. . He was gone for more than three months though.”).) In response, Micro
Center provides a comprehensive written job history record for Centeno that lists the leaves of
absence he took while employed by Micro Center. It demonstrates that Centeno took only one
FMLA leave during the time Mendoza worked at Micro Center. (Def. SF 4 61; Def. Ex. 26.)
That leave began on February 11, 1998, and ended when he returned to work March 1, 1998.
(id.) The record also indicates that Centeno took a twelve-week leave from July 28, 2002, to
October 20, 2002, when Mendoza no longer worked at Micro Center, which Micro Center says
was also FMLA leave. (Def. SF { 62; Def. Ex. 26 & 27.) Centeno took a separate personal leave

of absence from January 29, 2003, until February 8, 2003. (Def. SF 4 63; Def. Ex. 26; Def. Ex. B

18


1. Count I — the FMLA Claim

The FMLA provides that an eligible employee must be allowed to take up to twelve work
weeks of unpaid leave during any twelve-month period because of, inter alia, a serious health
condition that prevents the employee from performing his or her job. See 29 U.S.C. §
2612(a)(1)(D). Any employee who takes FMLA leave is entitled to be restored by the employer
to the position held when the leave began or to an equivalent position. See 29 U.S.C. §
2614(a)(1)(A) and (B). There is no dispute in this case that Mendoza was entitled to twelve
weeks of leave for the complications she suffered during her pregnancy. Nor is there any dispute
that when correctly calculated, Mendoza’s FMLA leave should have expired on January 5, 2002,
rather than December 31, 2001, as she was initially informed. The sole question remaining on
this count is whether Micro Center processing Mendoza’s termination on January 4 (back dated
to December 31) is an actionable violation of Mendoza’s rights under the FMLA.

Mendoza argues that the early termination is a clear violation of the FMLA, the intent of
the employer is irrelevant, and she is thus entitled to summary judgment. (D.E. 29 (Mem. of Law
in Support of Cross-Motion) at 4.) Defendant argues, to the contrary, that Mendoza was not
ready to return to work on January 6 (the day after her leave ended), and thus her right to
reinstatement was not violated. (D.E. 25 (Mem. of Law in Support of Motion) at 4.) The Court
finds, as explained below, that there is a triable question of fact as to whether Mendoza’s right to
reinstatement under the FMLA was violated because there is an issue of fact as to whether she
could and would have returned to work on January 6, 2002.

Numerous federal courts have held that an employee’s rights under the FMLA were not

violated when, although the employee may have been terminated from unpaid leave before the

10


Mendoza’s allegations.® (Def. SF § 40.)

At some point between January 8 and 24, Micro Center discovered that it had
miscalculated Mendoza’s FMLA leave, apparently because it incorrectly counted the days she
took for the funeral as FMLA leave. (/d. | 41; Def. Ex. B (Cardoso-Duris Dep.) at 110.)
Mendoza’s FMLA leave actually expired on January 5, 2002. (Pl. SF 4 10.) At some point after

January 8, 2002,’ Micro Center sent Mendoza a revised copy of the November 2, 2001,

® Although neither party makes anything of this issue in its briefs, in their papers
concerning the factual record, Mendoza attempts to deny this statement by citing to Micro
Center’s internal memo describing the results of the investigation. She states that “Micro Center
found credible evidence to support Mendoza’s complaint,” pointing to the fact that one employee
apparently confirmed that she overheard the comments made by Mendoza’s supervisor and that
Micro Center informed Mendoza that “appropriate action was taken to address her concerns.”
(PI. Resp. to Def. SF { 40; see Def. Ex. 16 at Bates No. MC 849, 851.) While it is true that one
employee confirmed the alleged comments, Mendoza’s characterization that this was “credible
evidence” is belied by the conclusion that the “alleged witnesses were unable to corroborate the
allegations and in many cases, were not credible or forthright.” (Def. Ex. 16 at Bates No. MC
852.) And Mendoza’s denial is not supported by the “appropriate action,” which apparently
consisted of speaking with employees about being careful with their conversations. (/d.) Neither
of these supports a denial that Micro Center was unable to substantiate Mendoza’s allegations.

7 Micro Center states that the revised letter was sent “on or about January 24, 2002.”
(Def. SF | 42.) Mendoza attempts to deny that the revised copy was sent on that date by stating
that “[t]he revised copy of the first November 2, 2001 letter was sent on November 2, 2001.”
(PI. Resp. to Def. SF { 42.) Both parties cite to the revised letter itself as support. The letter is
dated November 2, 2001, but it states “REVISED” on it and clearly is a near-verbatim reissue
(except for the revision changing the identified FMLA leave termination date from December 31,
2001, to January 5, 2004) of an original letter the parties agree was sent on November 2, 2002.
(See Def. SF 4 29; Pl. Resp. to Def. SF § 29.) There is no support in the revised letter (Def. Ex.
18) as to when the letter actually was sent. Ms. Cardoso-Duris has offered unrebutted testimony
that Micro Center did not realize its mistake concerning the FMLA termination date until
sometime between January 8 and January 24. (See D.E. 42 at 5 (citing Def. Ex. I (Cardoso-Duris
Dep.) at 109-110).) Micro Center also cites Mendoza’s deposition testimony, which, while
convoluted, appears to indicate (consistent with her complaint, which speaks directly and clearly
to the issue) that Mendoza received the second letter in late January 2002. (See D.E. 42 at 4-5
(citing Def. Ex. H (Mendoza Dep.) at 71-74); see also D.E. 1 (Compl.) §{] 20, 25 (respectively
asserting that first letter was sent on “November 2, 2001,” and the second, revised letter was
received by Plaintiff “{i]n late January of 2002 . . . in a Micro Center’s envelope postmarked

7


January 4 phone call, Cardoso-Duris encouraged Mendoza to reapply to Micro Center, and
further informed Mendoza that if she were to reapply and be rehired within one year of
termination, Mendoza would resume benefits she previously earned.’ (Def. SF {| 33.)

Cardoso-Duris processed Mendoza’s termination on January 4. (Def. SF 35.) It was
considered a voluntary termination, and Mendoza was eligible for rehire. (/d. { 36.)

Mendoza contacted Micro Center on January 8, 2002, to complain about comments that
she was told her former supervisor had made to a group of Micro Center employees. (Def. SF §
39.) These comments apparently related to Mendoza not being able to allowed to return to work.

(Pl. SF § 21.) Micro Center investigated this complaint and was unable to substantiate

* At one point, Mendoza attempts to deny that “‘she would have been rehired and get the
same seniority if she had reapplied” and had been hired within one year of her termination. (PI.
Resp. to Def. SF | 33.) This denial is inconsistent with Mendoza’s concession to such a fact in
another portion of the briefing concerning the factual record. (See D.E. 32 4 51 (Plaintiff
effectively conceding that “Micro Center employees who are rehired within one year of their
termination date are entitled to the same salary, benefits, and seniority that they had as of the
termination date.”).) Given Mendoza’s concession, her challenge to Def. SF { 33 is likely of
only academic significance. Nonetheless, as to Def. SF 4 33, the Court finds Mendoza’s
challenge to be ill-founded. In this regard, Mendoza cites to deposition testimony (although she
does not give specific line numbers) by Ms. Cardoso-Duris which states that “she [Mendoza]
would not be eligible for the same seniority.” (PI. Ex. B at 124.) However, the page prior to the
deposition testimony which Mendoza cites makes clear that Cardoso-Duris was answering a
materially different question than the one at issue here—namely, if Mendoza were to apply for
employment “tomorrow” (i.e., on February 13, 2004), would she be eligible for the same
seniority and benefits. (/d. at 123.) (Plaintiff's Ex. B at 123 references February 13 without
providing a year for the Cardoso-Duris deposition, but the remainder of the record makes clear
that the deposition took place in February 2004, as discovery did not open until October 2003
and closed by the summer of 2004.) Moreover, Ms. Cardoso-Duris’s testimony is unequivocal
that if Mendoza had reapplied and been hired within one year of January 5, 2002, should would
have received the same seniority and benefits. (Pl. Ex. B. at 124-25, see also Def. SF 451 &
Def. Ex. 15.) Thus, Mendoza’s denial is not properly supported, and Defendant’s statement is
deemed admitted for summary judgment purposes.

6


(Cardoso-Duris Dep.) at 61-64.)'*

Micro Center argues, correctly, that Mendoza’s deposition testimony that she “just knew”
Centeno took more than twelve weeks of leave is not enough to preclude summary judgment.
She provides no specifics as to the dates of Centeno’s allegedly excessive leave or her basis for
asserting—in conclusory fashion—that he was out more than three months. Mendoza offers no
argument or legal authority that would contradict the Seventh Circuit’s repeated instruction that
“{cJonclusory allegations, unsupported by specific facts, will not suffice” to defeat summary
judgment. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see also Hildebrandt y. Ill. Dept.
of Natural Res., 347 F.3d 1014, 1036 (7th Cir. 2003) (quoting Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989)) (‘““[B]are allegations not supported by specific facts

a9»

are insufficient in opposing a motion for summary judgment.””). Holmes v. e.spire
Communications, Inc., 135 F. Supp. 2d 657 (D. Md. 2001), specifically addressed this type of
situation and rejected similar conclusory assertions. See id. at 663. (“Plaintiff cannot
demonstrate a dispute as to a genuine issue of fact [whether comparator was out more than
twelve weeks] by simply setting forth unsubstantiated speculation and allegations.”).) On this

record, Mendoza has failed to adduce sufficient evidence to contradict Micro Center’s

employment documents showing that Centeno’s two FMLA leaves were twelve weeks or less,

'4 Micro Center provided additional, largely cumulative, factual support concerning
Centeno via an affidavit attached to its Response to Plaintiff's Cross-Motion/Reply concerning
its Motion (D.E. 42, Ex. J). Plaintiff has not filed any reply to Micro Center’s brief (nor filed any
response to Defendant’s Statement of Additional Facts (D.E. 41)), so Plaintiff has waived any
objections to the affidavit. That affidavit is largely cumulative of prior evidence, and certainly is
not outcome-determinative concerning the record on the Title VII claim, but it serves to reinforce
that there is no reasonable dispute regarding that Centeno was not allowed to take more than 12
weeks of FMLA leave.

19


SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the
court “must construe the facts and draw all reasonable inferences in the light most favorable to
the nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid
summary judgment, the opposing party must go beyond the pleadings and “set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Summary judgment is proper against “a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION
Micro Center moves for summary judgment on the following grounds: (1) Mendoza
could not have returned to work on January 6, 2002, so terminating her on January 4, 2002, a day
before her leave expired, is not an actionable violation of the FMLA; and (2) Mendoza’s Title
VII claim fails because she cannot establish a prima facie case and because she has no evidence
that Micro Center’s stated reason for Mendoza’s discharge was pretextual. Plaintiff moves for
summary judgment on the FMLA count on the grounds that Micro Center has admitted it
terminated Mendoza before her FMLA leave ended, and thus, there is no genuine issue of

material fact as to whether she is entitled to recover.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAULA A. MENDOZA,
Plaintiff,

v. No. 02 C 8005
MICRO ELECTRONICS, INC., and
MICRO CENTER SALES CORP., d/b/a
MICRO CENTER, CMSC, MEI,
WINBOOK and MICRO ELECTRONICS,
INC., a corporation,

Judge Mark Filip

we SSS HS SS SS YS SH DS

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Paula Mendoza (‘Plaintiff’ or “Mendoza”) filed this lawsuit against Micro
Center Sales Corporation (‘Defendant” or “Micro Center”') alleging violations of the Family and
Medical Leave Act, 29 U.S.C. § 2061, et seq. (“FMLA”), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seg. (“Title VII’), stemming from the termination of her employment
by Micro Center. Mendoza claims that she is entitled to recovery under the FMLA because
Micro Center terminated her before her twelve-week FMLA unpaid leave period ended (Count I).
She also claims that Micro Center discriminated against her in violation of Title VII because
Mendoza’s sex was a motivating factor in its decision to terminate her (Count II). This case is

before the Court on Micro Center’s Motion for Summary Judgment (“Motion”) (D.E. 25) and

' Although the caption of this case refers to multiple defendants, both parties in their
briefs treat the case as if it only involves the Plaintiff and a Defendant, typically referred to as
“Micro Center.” (See, e.g., Docket Entry (hereinafter “D.E.”) 25 at 1 (defense memorandum
referencing “Micro Center” and the “defendant”); D.E. 33 at 1 (Plaintiff's memorandum
referencing the “Defendant”).) This opinion follows the parties’ convention.


on [the date the leave ended], Cehrs was still unable to work”). A number of district courts,
including this one, have also held that a termination during the FMLA leave period is not an
actionable violation where the plaintiff could not have returned to work. See, e.g., Strykowski v.
Rush N. Shore Med. Ctr., No. 02 C 778, 2003 WL 21788987, at *6-7 (N.D. Ill. July 30, 2003)
(Manning, J.); Roberson v. Cendant Travel Servs., Inc., 252 F. Supp. 2d 573, 580-81 (M.D.
Tenn. 2002); Soodman v. Wildman, Harrold, Allen & Dixon, No. 95 C 3834, 1997 WL 106257,
at *8 (N.D. Ill. Feb. 10, 1997) (Lefkow, M.J.).

Notwithstanding this substantial body of authority, the teaching of these cases does not
support Defendant’s position that it is entitled to summary judgment as a matter of law on the
record as it has been presented. In each of the cited cases, the court found that the “record
overwhelmingly support[ed] the conclusion that the Plaintiff was not able to return to work at the
end of her FMLA leave,” Roberson, 252 F. Supp. 2d at 579, or that the plaintiff “was physically
unable to work” until after her leave expired, Soodman, 1997 WL 106257, at *8 (emphasis
added). See also Strykowski, 2003 WL 21788987, at *7 (plaintiff could not perform essential
functions of respiratory therapist position at end of FMLA leave where plaintiff's doctor stated
that he could not lift more than 10 pounds or stand for a prolonged period of time); Holmes v.
e.spire Communications, Inc., 135 F. Supp. 2d 657, 665-66 (D. Md. 2001) (plaintiff's argument
that she could have returned to work was“flatly contradicted by the evidence,” including
plaintiff's own testimony).

Here, the record does not clearly support the conclusion that Mendoza was not able to
return on January 6, 2002. As Plaintiff points out, in her deposition, she flatly denied telling

Micro Center that she could not return to work for another six weeks after her child was born.

12


end of the FMLA period, there was no dispute that the employee would not have been able to
return or would not have returned to work at the end of the leave period. For example, in
Reynolds v. Phillips & Temro Industries, Inc., 195 F.3d 411 (8th Cir. 1999), the Eighth Circuit
analyzed a case where a plaintiff suffered a debilitating injury to his back from a car accident.
The plaintiff had been a shipping attendant, which required him to lift loads of up to 100 pounds
and to be on his feet all day. See id. at 412. He was terminated 10 days after his accident
pursuant to company policy because of absences. See id. In the months after his accident, the
plaintiffs doctor certified that he had a continuing disability, ultimately concluding that he could
never lift or carry over 75 pounds and could only occasionally lift or carry 51 to 74 pounds. See
id. at 413.

The Eighth Circuit held that the defendant-company was entitled to summary judgment
on the plaintiffs FMLA claim, notwithstanding the plaintiffs contention that the company failed
to credit an excused absence form concerning the absences that prompted the plaintiff's
termination, because the record conclusively established that the plaintiff could not have
performed his job at the end of twelve weeks of unpaid FMLA leave had it been provided to him.
See Reynolds, 195 F.3d at 414. The court rejected the plaintiff's assertion that he was ready,
willing, and able to return to his job within the time period his FMLA leave was due, relying,
inter alia, on the fact that over one year after the accident, the plaintiff was still on lifting
restrictions that precluded his performing the essential functions of the job from which he was
fired. See id. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.
1998), the Sixth Circuit reached a similar conclusion. See id. at 784-85 (even if plaintiff was

terminated during twelve-week leave period, no FMLA violation where it was “undisputed that

11


memorandum revising her termination date from December 31, 2001, to January 5, 2002.8 (Def.
SF 4 41, 42; see Def. Ex. 18.)

Micro Center maintained Mendoza’s benefits coverage through January 5, 2002. (Def.
SAF § 7.) Mendoza collected short-term disability benefits from October 24, 2001, to January
22, 2002, which was the maximum benefit period. (Def. SF 53.) She collected long-term
disability benefits from January 23 to February 11, 2002. (/d. 454.) Long-term disability is
available to “disabled” employees, which is defined by Micro Center’s plan as the claimant being
limited or unable to perform the material and substantial duties of the claimant’s regular
occupation. (/d. 4 53.) Mendoza was directed to contact the insurer immediately if she was able
to return to work in any capacity. (/d. | 57.) She never informed the insurer that she was no
longer disabled at any time prior to February 11, 2002. (/d.)

Mendoza filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on April 1, 2002. (Def. SF 4.) The EEOC issued a right to sue letter

on September 19, 2002. (/d. 5.) Mendoza filed this action on November 7, 2002.

January 23, 2002.”).) Although the Court need not resolve the specific date to conclude that
summary judgment on the FMLA claim is properly denied, the Court concludes that there is no
reasonable dispute concerning that the second letter was sent some time at least after January 8,
2002.

® Mendoza apparently attempts to deny that Micro Center was not aware of its
miscalculation until January 8, at the earliest, by stating that “[w]hen Micro Center sent the first
letter [November 2, 2001] to Mendoza, Mendoza called Cardoso-Duris and reminded her that she
had until January 5, 2002, to complete her medical leave.” (PI. Resp. to Def. SF 4 41.) There is
no support in the record for this denial. The deposition testimony to which Mendoza cites
specifically states that she could not remember when she told Cardoso-Duris that she thought she
had until January 5. (Pl. Ex. A at 70.) Mendoza could not even narrow it down to before or after
January 4, the date she was informed she was being terminated. (/d.)

8


dishonest explanation, a lie rather than an oddity or an error.”). Mendoza’s argument concerning
pretext is that Micro Center’s proffered reason has no basis in fact because Micro Center admits
that her leave actually terminated on January 5, 2002. (D.E. 33 (Pl.’s Mem. of Law in Resp. to
Motion) at 9.) Mendoza does not offer evidence, however, to dispute that at the time Micro
Center terminated her employment, it believed her leave had terminated on December 31, 2001.'7
Mendoza also points to the fact that when Micro Center learned of its mistake, it did not make
any effort to reinstate Mendoza,"* and, instead, “created a revised document in an effort to hid
[sic] its wrongful deeds.” (D.E. 33 at 10.) To the contrary, the Court finds that Micro Center’s
documentation of the correct FMLA date, including sending the revised letter to Mendoza, cuts
against the notion that Micro Center was lying when it stated that it had terminated Mendoza
(albeit mistakenly, in that the termination came one day before the FMLA leave actually ended)
for being unable to work at the expiration of her FMLA leave. “Plaintiff's speculation that
[Micro Center’s] alleged mistake must be a pretext is not sufficient evidence [to] sustain a claim
under Title VII.” Holmes, 135 F. Supp. 2d at 664.

Because Mendoza has not offered evidence that creates a triable issue as to whether

'7 As described above, see note 8, supra, Mendoza’s statement that Mendoza had earlier
“reminded” Micro Center that her FMLA period ended on January 5 has no support in the record.
Mendoza could not recall whether she had told Micro Center before or after January 4 that it had
miscalculated the end date of her FMLA leave. (See Pl. Ex. A at 70.)

'8 To the extent that Mendoza is attempting to amend her wrongful discharge claim sub
silentio to include a failure to hire (or rehire, in this case) claim, the Court would reject such an
amendment as being unduly delayed and causing undue prejudice to Micro Center. (See Def. Ex.
A (EEOC charge) (describing Mendoza’s termination, but not complaining of a failure to rehire);
Compl. § 32 (alleging that sex was a motivating factor in Micro Center’s “decision to discharge
Plaintiff’).) This issue is no real practical consequence, however, as Mendoza concedes that she
did not reapply for her position at Micro Center. (See D.E. 32 (PI. Resp. to Def. SF) 45.)

22


unable to perform work of any kind and ordered that she remain confined on modified bed rest
until further notice. (/d. 25.) The doctor completed two forms—an FMLA Certification of
Health Care Provider and an Attending Physician Statement form—indicating that Mendoza was
unable to return to work and that the date she could return was unknown. (/d.) On October 24,
2001, Mendoza signed a leave of absence request form indicating that her return date was
unknown, apparently pending her doctor’s release. (/d. | 26; Pl. Resp. to Def. SF § 26.)
Mendoza testified that she understood that she needed a doctor’s release to return to work from
FMLA leave for Micro Center’s “security purposes” (unexplained). (Def. SF 4] 27; Pl. Resp. to
Def. SF € 27.)

Micro Center’s home office calculated Mendoza’s FMLA leave period. (Def. SF 4 28.)
Micro Center initially considered a leave of absence Mendoza had taken to attend a funeral from
May 7 through May 12, 2001, as part of Mendoza’s FMLA unpaid leave entitlement and
therefore included this leave in calculating the date that her leave would expire. (/d.) On
November 2, 2001, Micro Center’s Human Resources Department sent Mendoza a letter that
stated, “You have previously taken one week of FMLA leave from 5/7/01-5/12/01, therefore you
now have 11 of the 12 weeks of the allowed FMLA leave time available to use. Your 11 week
FMLA period ends on December 31, 2001.” (/d. § 29.) As described below, this calculation was
a mistake.

Cardoso-Duris spoke with Mendoza three to four times during Mendoza’s FMLA leave

was not Cardoso-Duris’s job to do such a calculation of leave-eligibility; it does not support that
this fact was told to Mendoza during the call. Thus, to the extent it is relevant, there is no
evidentiary support for the fact that Mendoza was informed on October 18, 2001 that her total
leave would be confirmed at a later date because it was not Cardoso-Duris’s job to calculate it.

4


In sum, there are material factual disputes concerning the FMLA claim. Precedent
teaches that a plaintiff will not prevail on a FMLA claim if she was fired before her unpaid leave
ended but otherwise could not have or would not have returned to work at the end of her FMLA
leave. At the same time, it is unclear whether Plaintiff actually could have and would have
returned to Micro Center if she knew she needed to do so. Thus, Defendant’s Motion and
Plaintiff's Cross-Motion as to Count I are both denied because there is a triable issue of fact as to
whether Mendoza could have and would have returned to work on January 6, 2002, had she been

informed that she needed to do so to keep her job at Micro Center.””

cases where a court applied Cleveland to unswor statements, thereby requiring a plaintiff to
explain any apparent inconsistency between such unsworn statement and testimony in order to
survive summary judgment. See also Giles v. Gen. Elec. Co., 245 F.3d 474, 484 n.14 (Sth Cir.
2003) (declining to decide whether inconsistent unsworn statement in private disability benefits
application might form basis for summary judgment); Reynolds, 195 F.3d at 414 n.4 (declining to
decide whether Cleveland applies in FMLA case where plaintiff made prior unsworn
representations that he was unable to perform normal occupation). General Seventh Circuit
precedent precludes a litigant from attempting to evade summary judgment by contradicting prior
sworn testimony, see, e.g., Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-
69 (7th Cir. 1996) (collecting cases), but Defendant offers no authority that the rule applies to
unsworn prior statements.

"2 In concluding that summary disposition is inappropriate on the record presented, the
Court respectfully rejects Plaintiff's assertion that dicta in the earlier opinion in this case,
Mendoza v. Micro Electronics, Inc., No. 02 C 8005 (Gottschall, J.), dictates that Mendoza is
entitled to judgment as a matter of law. To the extent that dicta in that earlier opinion, which
rejected the Defendant’s contention that the case should be dismissed under Rule 12(b)(6),
arguably spoke to FMLA liability, it is clear from the earlier opinion that the parties failed to
present significant authorities bearing on the question of whether a plaintiff can recover under the
FMLA if it is established that the plaintiff cannot or will not return to work after the expiration of
the FMLA period. District court opinions concerning motions to dismiss do not necessarily
control when the case proceeds to summary judgment, at least where issues were not the subject
of meaningful or thorough adversarial briefing in the first instance. See, e.g., Figeroa v. City of
Chicago, No. 97 C 8861, 2000 WL 283080, at *5 (N.D. Ill. Mar. 3, 2000) (Shadur, J.) (citing,
inter alia, Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227-28 (7th Cir. 1995), and
Cameo Convalescent Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986)).

15


Cir. 2001)

A. Mendoza Has Failed to Identify A Similarly Situated Employee

Micro Center does not contest that Mendoza has established the first three prongs of a
prima facie case. Micro Center argues, rather, that Mendoza has not presented evidence that any
similarly situated employee was treated more favorably than she. “A similarly situated employee
is one who is ‘directly comparable to the plaintiff in all material respects.” Rogers v. City of
Chicago, 320 F.3d 748, 755 (7th Cir. 2003) (quoting Grayson v. O'Neill, 308 F.3d 808, 819 (7th
Cir. 2002)) (alteration omitted); accord, e.g., Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618-
19 (7th Cir. 2000) (showing substantial similarity of comparator “normally entails a showing that
the two employees dealt with the same supervisor, were subject to the same standards, and had
engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them”).

Mendoza points to one employee as purportedly being similarly situated to her: Joe
Centeno. She argues that Centeno, like her, was a department supervisor, but unlike her, he was
allowed to return to work afier taking more than twelve weeks of FMLA leave. (D.E. 29 (Mem.
of Law in Support of Cross-Motion) at 8; see also Def. SF 64.) Micro Center argues, however,
that Centeno did not take more than twelve weeks of FMLA leave, and also was not drawing
disability payments after such leave ended, and therefore he is not similarly situated to Mendoza.

The Court respectfully rejects Mendoza’s argument (see D.E. 33 at 8-9) that Centeno has
been shown to be a comparator. As a threshold matter, Mendoza does not contend that Centeno
was drawing disability payments (Mendoza drew both short-term and long-term disability) after

the conclusion of his unpaid FMLA leave. Such a factor might reasonably bear on an employer’s

17


policy requires that employees returning from FMLA leave contact their supervisor at least seven
days prior to the expiration of the leave to make arrangements for their return to work. (/d. J 12.)
If the FMLA leave was for the employee’s own serious health condition, Micro Center policy
requires the employee to provide a doctor’s statement indicating that the employee is able to
return to work in the position he or she held when the leave began. (/d. J 13.) Micro Center
policy does not allow employees to extend their FMLA leave beyond twelve weeks. (/d. | 14.)

On October 12, 2001, Mendoza left work early due to complications related to her
pregnancy. (Def. SF 4 19; Pl. SAF 42.) On October 17, 2001, Mendoza’s physician put
Mendoza on bed-rest and prohibited her from working “until further notice.” (Def. SF § 20.) On
that day, Mendoza informed Micro Center store management that she would be unable to work
until at least October 24, 2001, the date of her next scheduled doctor’s appointment. (/d. 421.)
Because she was going to be absent for more than 3 days, Micro Center, per its policy, put
Mendoza on FMLA leave beginning October 13, 2001, which would have been her next
scheduled work day. (/d. { 22.) On October 18, 2001, Layda Cardoso-Duris, who at the time
was the Human Resources Manager at store number 151, contacted Mendoza by telephone to
discuss her FMLA leave, including topics documented on a “Leave of Absence (LOA)

Checklist.”? (/d. 4] 23.) On October 24, 2001, Mendoza’s physician determined that she was still

> Defendant states that Cardoso-Duris informed Mendoza that the Human Resources
Department at Micro Center’s home office in Columbus, Ohio, would confirm the total leave for
which Mendoza was eligible, taking previous time off into consideration. (Def. SF { 24.)
Plaintiff denies this assertion by citing to testimony by Mendoza that she did not recall whether
Cardoso-Duris made such a statement. (PI. Resp. to Def. SF 24.) The record support from
Defendant’s Statement of Facts does not support the position that Cardoso-Duris actually made
the asserted representation to Mendoza. Defendant cites to the LOA Checklist, which includes a
hand-written notation, “HOHR will confirm total elig by law” (Def. Ex. 7), and Cardoso-Duris’s
deposition testimony (Def. Ex. B at 14-15). The deposition testimony cited supports only that it

3


Plaintiff's Motion for [Partial] Summary Judgment (“Cross-Motion’) (D.E. 28). For the reasons
stated below, Defendant’s Motion is denied with respect to Count I and granted with respect to
Count II. Plaintiffs Cross-Motion is denied.

BACKGROUND?

Micro Center operates a chain of retail computer stores, including store number 151,
which is located at 2645 North Elston Avenue in Chicago, Illinois. (Def. SF {| 2.) Mendoza
began employment at Micro Center’s store number 151 on December 2, 1996, as a Cash Office
Clerk, and on August 27, 2000, Mendoza became a Front End Supervisor. (/d. | 3.) Micro
Center has adopted policies for leaves of absences for its employees which are set forth in an
Employee Handbook. (/d. {| 9; see Def. Ex. 2 at Bates No. MC 25-30.) A qualified employee is
eligible to take up to twelve weeks of unpaid FMLA leave in a rolling twelve-month period.
(Def. SF ¥ 10.) A qualified employee is also eligible to take up to four weeks of personal leave

in a rolling twelve-month period, subject to management approval. (/d. 4] 11.) Micro Center

? The Court takes the relevant facts from Micro Center’s Statement of Facts (“Def. SF’)
({D.E. 25); Plaintiff's Response to Micro Center’s Statement of Facts (Pl. Resp. to Def. SF”),
which includes Mendoza’s Local Rule 56.1(b)(3)(B) Additional Statement of Facts (“P1. SAF”)
(D.E. 32); Plaintiff's Statement of Fact [sic] In Support of Her Motion Partial [sic] for Summary
Judgment (“P1. SF”) (D.E. 30); and Micro Center’s Combined Response to Plaintiff's Local Rule
56.1(a) and 56.1(b) Statements of Facts (D.E. 41), which includes a Response to Plaintiff's
56.1(a) Statement (“Def. Resp. to Pl. SF”), a Response to Plaintiffs 56.1(b)(3)(B) Statement
(“Def. Resp. to Pl. SAF”), and a Statement of Additional Facts (““Def. SAF”). Plaintiff has not
filed a reply brief, or a response to Defendant’s Statement of Additional Facts, in support of her
Cross-Motion. Where the parties disagree over relevant facts, the Court sets forth the competing
versions. In addition, the Court, as it must, resolves genuine factual ambiguities in the respective
non-movant’s favor. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). Where a
party fails to properly support its denial of a statement (or fails to respond at all), and that
statement is properly supported in the record, the Court deems it admitted. Local Rule 56.1(a);
accord, e.g., McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998); Malec v.
Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).

nN


(See D.E. 31, Pl. Ex. A at 21.) She also stated that she would have returned to work on January
6, 2002, if that was what she understood was necessary to keep her job. (See id.)

Defendant contends that Mendoza, in her deposition, conceded that she could not return
for six weeks, but one might reasonably construe Mendoza’s testimony as merely indicating that
she assented to a six-week return when Cardoso-Duris suggested that timeframe. For example,
Mendoza testified:

I told her that 1, you know, wanted to be able to come back to work. And she said, Well,

when do you think you can come back to work. I said, Well you know I don’t know.

You know, | just want to come back to work. She said, well, usually it’s about six weeks.

[ said, Yeah, I guess.

(Def. SAF § 1; Def. Ex. H (Mendoza Dep.) at 84.) Mendoza further stated, “I informed Layda
(Cardoso-Duris] that 1 wanted to return back to work and what would I need to do that. And she
told me, ‘well, you need a doctor’s note. And what is it, usually what about six weeks?’ And I
said, ‘Yes.’” (Def. SAF § 2; Def. Ex. H at 89.) In light of Mendoza’s testimony that she would
have been able to return to Micro Center on January 6, if she had been asked to do so (see PI. Ex.
A at 21), the Court finds that there is a triable issue of fact as to whether she was able to return to
work at the end of her FMLA leave. See Viereck v. City of Gloucester City, 961 F. Supp. 703,
709 (D. N.J. 1997) (whether FMLA plaintiff would have returned to work two days early to save

her job, on record in that case, was a “factual inquiry on which the record is not free from

doubt”).

° The same is true of Mendoza’s statement in her EEOC charge that “I informed [Micro
Center] that I would be able to return in six weeks.” (Def. Ex. A.) Even if this is a binding
judicial statement, as Defendant argues, it does not unequivocally state that Mendoza could not
return to work until six weeks from January 4, at least when read in light of the other evidence in
the record.

13


I. Count II — the Title VII Claim

Title VII makes it unlawful for employers “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to . . . compensation,
terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42
U.S.C. § 2000e-2(a)(1).'5 Mendoza offers no direct evidence of discrimination, so she must
proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).

Mendoza states that, to establish a prima facie case of discrimination, she must put forth
evidence: “(1) that she is a member of a protected class; (2) that she was performing her job
satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly
situated individuals were treated more favorably.” (D.E. 33 (PI.’s Mem. of Law in Resp. to
Motion) at 7-8 (collecting cases)); accord Wyninger v. New Venture Gear, Inc., 361 F.3d 965,
978 (7th Cir. 2004). As Mendoza acknowledges, if she presents a prima facie case, the burden
shifts to Micro Center “to articulate a legitimate, nondiscriminatory reason for the action taken
against the plaintiff.” (D.E. 33 at 8). After Micro Center has proffered a legitimate reason, the
inference of discrimination disappears, and to survive summary judgment, Mendoza must
demonstrate that there is an issue of triable fact as to whether Micro Center’s proffered reason
was a pretext for intentional discrimination. See id. The ultimate burden to prove intentional

discrimination remains with Mendoza. See Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th

'3 “The phrase ‘because of sex’ has been defined by the Pregnancy Discrimination Act
(PDA), through which Congress amended Title VII in 1978, to include ‘because of or on the
basis of pregnancy, childbirth, or related medical conditions.”” Venturelli v. ARC Cmty. Servs.,
Inc., 350 F.3d 592, 598 (7th Cir. 2003) (citing 42 U.S.C. § 2000e(k)).

16