imeluded: (1) administering medication through aerosols, nebulizers, and incentive spirometers;
(2) performing chest percussion; (3) drawing blood gas; (4) intubating patients; (5) setting up
and maintaining ventilators; (6) performing CPR; and (7) responding to “codes” as part of the
emergency response team when patients went into cardiac arrest. Additionally, the RNS job
description for a respiratory therapist, which Strykowski signed and agreed to, requires that the
employee have the ability “to lifi, carry and push medium to heavy objects.” Respiratory
therapists are also required to “stand” when performing chest percussions, during the initiation
of nebulizer and aerosol treatinents, and, when setting up ventilators. When responding to
emergencies, cight to ten health care providers move quickly around the patient’s bed trying to
save his/her life. The scene is hectic and a respiratory therapist is standing or may be required to
climb on the patient’s bed to perform CPR. Respiratory therapists are also required to move
patients in different positions when performing treatments and responding to emergencies.

Strykowski’s doctor stated that Strykowski could not lift more than 10 Ibs or stand for a
prolonged period of time. Furthermore, Strykowski has been collecting social security disability
since February, 2002 and was found to be disabled since August 28, 2001. Consequently, the
Court holds that Strykowski was unable to perform essential job functions when his FMLA 12-
weck leave expired, and was therefore lawfully discharged.
IL. Retaliatory Discharge

RNS has also moved for summary judgment on Count II (retaliatory discharge) because
it contends that Strykowski was lawfully discharged after his leave expired because he was
unable to retum to work. Strykowski alleges that RNS violated his FMLA rights by terminating
him in retaliation for exercising those rights. Intent is central to a charge of retaliatory discharge

and in the absence of direct evidence of intent, the Seventh Circuit uses the familiar burden-

13



note from his physician, which stated that his medical condition began on August 28, 2001, its
duration was “unknown at present” and that Strykowski “needs a walker for balance.” Human
Resources granted Strykowski’s leave request and informed him that he was being placed on
Family and Medical Leave effective October 8, 2001,

c. Proposal to Return to Work

In the beginning of November 2001, Strykowski visited his immediate supervisor at the
hospital to discuss his retum to work, Although he no longer needed a walker and could use a
cane to walk, Strykowski told his boss that he continued to have problems with his balance.
They discussed Sirykowski returning to work on a trial basis working in the pulmonary function
lab. Strykowski claimis that there were other jobs besides the pulmonary function lab such as
oxygen rounds that he could perform, whereas RNS claims that he proposed working solely in
the lab.

Although one of the duties of a respiratory therapist is to administer pulmonary function
tests, Strykowski was not trained for and did not work in the pulmonary function lab because the
lab is not open during the evenings, when he primarily worked. The pulmonary function tests
are often performed in a dedicated pulmonary function lab although there is a portable bedside
tester. The day shift respiratory therapists rotate through the pulmonary function lab. One day
shift respiratory therapist, Fred Hotel, works in the lab more than others, but also performs the
other duties of a respiratory therapist. For a few years in the early 1990s Hotel was the only
respiratory therapist who worked in the pulmonary function lab but it was decided that others
should be cross-trained and about 5 respiratory therapists now can work in the lab.

Strykowski intended to return part-time, working four hours a day. Strykowski and his

immediate supervisor agreed that he would return to work on December 3, 2001. This

4



light most favorable to the nonmoving party. Regner v. City of Chicago, 789 F.2d 534, 536 (7th
Cir.1986),

Courts are cautious in granting summary judgment in employment discrimination cases
because often issues of intent and credibility are involved. Sarsha v. Sears, Roebuck & Co., 3

F.3d 1035, 1038 (7th Cir.1993); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368,

370-71 (7th Cir.1992), Summary judgment is inappropriate if the court must balance

conflicting indications of motive and intent. Stumph v, Thomas & Skinner, Inc., 770 F.2d 93, 97
(7th Cir.1985), An employer can only prevail at the summary judgment stage if the record
shows that a reasonable trier of fact must conclude that the employment decision was not based
on discrimination. Veprinsky v. Daniel, Inc., 87 F.3d 881, 893-94 (7th Cir.1996).
ANALYSIS

Strykowski alleges that RNS violated his rights under the FMLA, when it: (1) refused to
reinstate him to his former position or an equivalent position afier 12 weeks of unpaid leave; and
(2) terminated him in retaliation for taking his FMLA leave. RNS has moved for summary
judgment on the grounds that it: (1) lawfully discharged Strykowski because he was unuble to
perform all essential job functions of a respiratory thereapist; and (IL) lawfully terminated him
only after he had exhausted all FMLA time and personal leave time and not because he exercised
his FMLA rights. The Court will discuss each of these contentions in turn,
I Discharge Under FMLA

The parties dispute regarding Strykowski’s discharge under the FMLA centers on: (A)
when the FMLA 12 week period began and ended; and (B) whether Strykowski was able to
perform his essential job functions al the end of that period. Strykowski contends that the 12
weck statutory period began on October 8, 2001 and ended on December 31, 2001, as per his

9


other employee with whom Strykowski worked the night shift suffered a “non-occupational
injury” requiring amputation of his leg in July 1997, and was permitted to retum to work in
January 1998, on a part-time basis for the first two months, after receiving physical therapy. In
addition, RNS allowed this employee to only work in the intensive care unit, so he would not
have to walk around the entire hospital. RNS contends that this employee returned to work with
full medical clearance and without restrictions, permitting him to resume all of his former dutics.

On December 5, 2001, as per RNS’s request, Strykowski’s doctor signed a medical
release but imposed a lifting restriction of ten pounds. ‘There is dispute between the partics as to
whether Strykowski’s condition had improved from his discussion with his immediate supervisor
a few wecks earlier and whether he was able to perform all duties of a respiratory therapist.

In December 2001, Human Resources decided against assigning Strykowski to a special,
light duty position, in part because the work in the pulmonary function lab would not be steady,
Shortly after Decomber 5, 2001, Strykowski was informed that Human Resources would not
allow him to return to work because of the lifting restriction. Earlier, when Strykowski’s
immediate supervisor had discussed reinstaling Strykowski in a restricted, part-time position, the
supervisor was unaware of RNS’s policy distinguishing between “occupational” and “non-
occupational injuries.”

D. Strykowski’s Request for Disability Benefits

Strykowski applied for long term disability (“LTD”) benefits under the RNS’s long term
disability plan. In allowing LTD benefits for Strykowski, the insurer had to determine that he
was “disabled” which is defined under the plan as: “limited from performing the material and
substantial duties of your regular occupation due to your sickness or injury” and “during the
elimination period [first 90 days] you are unable to perform any of the material and substantial

6



arrangement required Strykowski to be moved from night to day shift and (o be trained to work
in the pulmonary function lab in a newly created position dedicated to the pulmonary function
lab.

On November 12, 2001, Strykowski wrote a letler to Dr. Bauer, his surgeon, describing
his limitations and asking Dr. Bauer to prepare a letter reciting the same limitations, Strykowski
claims the purpose of the letter was to obtain bus service to his home as he had difficulty
climbing stairs. Dr. Baucr’s letter recommended not undertaking any type of lifting or periods of
prolonged standing.

In early December 2001, Strykowski’s immediate supervisor spoke with Human
Resources regarding Strykowski’s reinstatement to the limited role in the pulmonary function
lab. Strykoski’s immediate supervisor was told of both RNS’s policy distinguishing employees
who required leave for occupational versus non-occupational injuries, as well as, the nced to
obtain a doctor’s release for Strykowski stating that he could perform all functions of his job.

The parties dispute whether RNS maintains a practice of reinstating
employees with “non-occupational injuries” who cannot perform all essential job functions.
RNS contends that since June 17, 1996, it has maintained a policy whereby it will reinstate an
employee with a work-related injury who cannot perform his normal duties to a temporary job
consistent with his physical capabilities for no more than three months. The policy is called the
Temporary Altemative Position Program (“TAP”) and extends only to cmployces with
“occupational injuries.” RNS further claims that cmployces who have “non-occupational
injuries” are not reinstated unless they can perform all essential functions of their job.

Strykowski alleges that RNS maintains a practice of reinstating employees with “non-
occupational injuries” who cannot perform all of the essential job functions. For example, the

5



STANDARD OF REVIEW

Summary judgment is appropriate "if 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 judgment as a matter

of law." Fed. R. Civ, P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Cheek y. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994). A genuine issue
of material fact is one that might affect the outcome of the lawsuit, and factual disputes that are
irrelevant will not be considered. Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), In
determining whether a genuine issue of materia! act cxists, the court must construe the alleged
facts in a light most favorable to the party opposing the motion. United States y. Diebold, Inc.,
369 U.S, 654, 655 (1962); Dale y. Chicago Tribune Co., 797 F.2d 458, 460 (7th Cir. 1986).

The moving party carries the initial burden of establishing that no genuine issue of
material fact exists. Fed. R. Civ. P. 56(c); Celotex Com., 477 U.S. at 323, Once the moving
party has met its burden, the nonmoving party must set forth specific facts showing that there is
a genuine issue for trial, Fed. R. Civ. P. 56(e); Becker v. Tenenbaum Hill Assoc., Tnc., 914 F.2d
107, 110 (7th Cir.1990). The nonmoving party must do more than “show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The nonmoving party may not merely rest upon the allegations or
denials in its pleading, but instead, must “set forth specific facts showing that there is a genuine
issue for trial.” See Anderson, 477 U.S. at 248. If the evidence presented is “merely colorable”*
or is not “significantly probative,” summary judgment may be granted. Id, at 250-51 (citations

omitted), The court considers the record as a whole, and draws all reasonable inferences in the



Mine Onder Form (06/97)

United States District Court, Northern District of Illinois

r
be

romtasrat ge | __Blawhe M. Manning | Siege
CASE NUMBER 02 € 0778 DATE July 28, 2003

CASE Stryskowski v. Rush North Shore Medical Center
TITLE
Lin the following box (a) indicate the party filing the motion, ¢.., plaintiff, deferulant, 3rd party plaintiff, and (bh) state briefly the
MOTION: nature af the mation being presented. |
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.)
(2) ao Brief in support of motion due
(3) ag Answer brief to motion due: Reply to answer brief due
(4) Qo Ruling/Hearing on setfor at
(3) o Status hearing{held/continued to] [set for/re-set for]on |) setfor_ ss at_
(6) a Pretrial conference[held/continued to] [set for/re-set for] on setfor at.
(7) o Trial[set for/re-set for]on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) im] ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O General Rule 21 OO FRCP41(a)(1) OO FRCP41(a)(2).

(10) [Other docket entry] For the reasons set forth in the attached Memorandum and Order, Defendant
Rush North Shores Medical Center’s Motion for Summary Judgment [10-1] is GRANTED.

(1) o [For further detail see order on the reverse side of the original minute order.]

No niolices required, advised in open court.

‘No notices required. number of notices:

NUL 3.0 2003

sate docket

UY | Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judye/tnagistrate judge.

courtroom date mailed notice

RTS deputy’s
initials

mailing deputy initials

central Clerks Office



for a family or personal medical situation without fear of losing one’s job. The extension
Strykowski asks for today would both undermine and contravene these purposes by allowing
him to leave work for medical reasons for nearly 28 weeks and still be afforded protection under
FMLA as if’ he had only taken the 12 week statutory required period. As Sewall v. CTA, No. 99
C 8372, 2001 WI, 40802, at *6 (N.D, TI. Jan, 16, 2001), points out, “an employer may place an
employee on FMLA leave ‘involuntarily,’ that is, even if the employee does not request such a
leave, as long as the employee is ‘eligible’ for leave and then takes a qualified absence from
work.” The Seawall court looked to the date upon which the condition began that made the
employee unfit to work and calculated the 12 weeks from that date forward. Id. Here,
Strykowski was unable to work starting on August 28, 2001, due to complications from his
surgery which constituted a disabling health problem.

Relying on Ragsdale, the Court in Farina v. Compuware Corporation, No. CV-98-722-

PHX-ROS, 2003 WL 1846857, at *14 (DC Az. Mar. 31, 2003), held that it was immaterial that
an employer made an affirmative misrepresentation of when the employee’s FMLA leave began
because, the “plaintiff still bears the burden, undcr Ragsdale, of showing some prejudicial
impairment of rights under the FMLA from the affirmative representation.” Id. at *19,

Here, on cither date when the 12 week period expired, it is undisputed that Strykowski
was unable to rcturn to work. Therefore, any representations from RNS did not result in
detrimental reliance or prejudice because Strykowski was unable to return to work and did not
attempt to return to work until December 3, 2001. As Ragsdale noted, “the judge or jury must
ask what steps the employee would have taken had circumstances been different.” Ragsdale 53
US. at 88. Here, is clear to the Court that Strykowski would not have taken different steps if he
had known that his FMLA leave began to run on August 28, 2001.

11



request and his correspondence with RNS. RNS contends that under a recent Supreme Court
ruling, the 12 week period began on August 28, 2001, and ended on November 19, 2001,

A. FMLA’s 12 Week Period

The FMLA guarantees qualified employees 12 weeks of unpaid leave each year
following certain events: a disabling health problem, a family member’s serious illncss, or the
arrival of a new son or daughter. 29 U.S.C, § 2612(a)(1). FMLA permits employers to require
employecs to substitute any accrued paid vacation leave for FMLA leave. 29 U.S.C. §
2612(d)(2)(A). The question in the instant case is whether the affirmative representation by an
RNS employce to Strykowski that his 12 weeks would begin on October 8, 2001, and end on
December 31, 2001, delays the start of the 12 week period under the FMLA.

To answer this question, the Court turns to Ragsdale v. Wolverine, 535 U.S. 81 (2002).

In Ragsdale, the Supreme Court invalidated regulation 29 C.F.R. § 825.700(a), which required

an employer to notify the employee of the FMLA designation in order for it to count against the
FMLA 12 week entitlement. Id. at 88. In declaring the regulation in contravention of the
FMLA, the Supreme Court stressed the fact that the 12 week period was both a minimum and
maximum. Id. The Secretary of Labor lacked the authority to contravene congressional intent
and create a windfall for an employee whose employer did not immediately designate the Icave
as FMLA 12 week leave. Id. al 91. Examining the legislative history of the FMLA, the
Supreme Court instead determined that a better approach to resolving any notice violations
would be to determine whether there was actually any harm suffered by the omployee or
prejudice because of the failure to sooner designate the leave under FMLA. 1d. at 88.

The underpinnings of Ragsdale are insight(ful and useful in deciding the issue before the

Court today. The purpose of the FMLA was to allow an employee to leave work for 12 weeks

10



duties of your regular occupation.” This is a rigorous determination and benefits are only paid to
employees who are truly disabled.

Additionally, Strykowski applicd for social security disability benefits in September
2001. He was determined by the Social Security Administration to be disabled continuously
since August 28, 2001, and he received his first payment in February 2002. Since January 2002,
he has been receiving $1,892.22 per month in disability benefits in LTD insurance and social
security, In order to receive these benefits, Stirykowski claimed he was in fact disabled
beginning August 28, 2001.

E. Additional Leave Requested

On January 17, 2002, Strykowski submitted another leave request to Human Resources,
asking for leave from January 1, 2002, through July 10, 2002. He stated that the reason for the
request was, “T am disabled.” In support of this request, his doctor stated that “patient cannot lifi
more than ten pounds.” In response to this request, Strykowski received a letter from Human
Resources stating that Surykowski had been given the maximum personal leave allowable under
RNS policy (90 days) commencing on December 31, 2001, when his FMLA leave ended. It
further stated that Strykowski could seck to retum to work by March 31, 2002, (when his
personal leave ended) if he was medically authorized to perform all essential functions of his
job. [fhe did not return to work by then, he would be terminated on April 1, 2002, consistent
with RNS’s leave policy.

On or about April 4, 2002, Strykowski received another letter from RNS stating that his
personal leave had expired and because he had not returned to work his employment was
terminated on April 1, 2002, Strykowski did not respond to this letter and has not applied for

employment at any other hospitals.


required to move patients in different positions when performing treatments and responding to
emergencies.

In August 2001, Strykowski Icarned that he needed to undergo back surgery due to a
“non-occupational injury.” To cover his absences, Strykowski arranged with his immediate
supervisor to take 6-8 weeks of vacation, using his accumulated paid time off (“PTO”), Prior to
his leave, Strykowski’s work performance was satisfactory. His immediate supervisor had the
authority to approve Strykowski’s request as his role was to determine if “they could afford to Iet
[the employee] be gone.” Strykowski did not inform Human Resources that he was having
surgery or taking an extended absence.

B. Strykowski’s Medical Condition

Strykowski had surgery on August 28, 2001, at Lutheran General Hospital.
Unfortunately, there were unexpected complications following the surgery, and Strykowski
suffered from “foot drop,” lost feeling in both legs, which affected his balance and ability to
walk. Asa result, he was prone to fall if bumped and needed to hold something for balance
when he walked. After using a walker for several months, he began using a cane around
November 2001 to keep his balance, This condition continued through his termination on April
1, 2002.

Strykowski was not able to return to work after his six weeks of PTO elapsed. On
October 16, 2001, after his PTO time had run out, he requested a formal medical Icave of
absence from Human Resources to begin on October 8, 2001 and to continue for six months (the
maximum allowed under RNS’s policy). Strykowski chose October 8, 2001, because his six
weeks of PTO expired on that date. He intended to return to work prior to the expiration of the

twelve weeks guaranteed under the FMLA. In support of his request, Strykowski submitted a

3



shifting framework established by the Supreme Court in McDonnell Douglass Corp. v. Green,
411 U.S. 792, 973, See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999)
(FMLA case using the McDonnell-Douglas burden shifting test). To establish a prima facie
case of retaliatory discharge, a plaintiff must establish: (1) the plaintiff engaged in the protected
activity; (2) the omployer took adverse employment action against the employee; and (3) a
casual connection exists between the employee’s protected activily and the employer’s adverse

employment action, Id, at 892. See also Sewall v. CTA, No. 99 C 8372, 2001 WL 40802, at *8

(N.D. Tl, Jan, 16, 2001) (FMLA case applying McDonncll-Douglas burden shifting test to show
retaliatory discharge), Upon the establishment of a prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for termination, Id. Once the
employer gives its reason the plaintiff then has the opportunity to demonstrate that “the proffered
reason was not the true reason for the employment decision,” and that the employce’s exercise of
his protected rights was in fact the true reason for the termination. Tcxas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).

To show pretext, the plaintiff must put forth significantly probative admissible evidence
showing that the employer's articulated reason for the discharge was pretext for discrimination.

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S, 502, 515 (1993). The Supreme Court described

pretext as, “a reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both
that the reason was false, and that discrimination was the real reason.” Id. (emphasis in the

original). See also King, 166 F.3d at 893; McClendon v. Indian Sugars, Inc., 108 F.3d 789,797

(7th Cir, 1997) (“Once the employer makes this showing, the burden then shifts back to the
employee to show that the employer's proffered rcasons are pretextual and that its actual reason

was discriminatory or retaliatory”).

14



CONCLUSION
For the foregoing reasons, Defendant Rush North Shores Medica] Center’s Motion for

Summary Judgment [10-1] is GRANTED.

ENTER: bhi Wesaity

BILANCHE M. MANNING
U.S. DISTRICT COURT SubGE

DATE: _7 ot -@3

16



BACKGROUND!

A. Strykowski’s Work History with RNS.

Strykowski, a respiratory therapist, was hired by RNS on August 30, 1993 and terminated
on April 1, 2002. He worked the night shift along with one other employce, Ben Ramirez. His
responsibilities included: (1) administering medication through aerosols, nebulizcrs, and
incentive spirometers; (2) performing chest percussion; (3) drawing blood gas; (4) intubating
patients; (5) setting up and maintaining ventilators; (6) performing CPR; and (7) responding to
“codes” as parl of the emergency response team when patients went into cardiac arrest.

The RNS job description for a respiratory therapist, which Strykowski signed and agreed
to, requires that the employee have the ability “to lift, carry and push medium to heavy objects.”
Additionally, respiratory therapists are required to “stand” when performing chest percussions,
during the initiation of nebulizer and aerosol treatments, and, when setting up ventilators. When
responding to emergencics, eight to ten health care providers move quickly around the patient's
bed trying to save his/her life. The scene is hectic and a respiratory therapist is standing or may

be required to climb on the patient’s bed to perform CPR. Respiratory therapists are also

' The facts in the Background section are derived from the parties’ Local Rule 56.1
statements and other pleadings. The facts in Defendant’s Local Rule 56.1(A)(3) statement that
Plaintiff did not controvert in its Local Rule 56.1(b)(3)(A) statement are deemed admitted for
purposes of this motion. Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992), Likewise,
the facts that Plaintiff provides in his Local Rule 56.1 statement and thal Defendant did not
controvert are also deemed admitted. Id. The facts that Plaintiff objected to but did not deny are
deemed admitted. McGuire v. United Parcel Scrv., 152 F.3d 673, 679 (7th Cir. 1998). Lastly,
responses that did not cile to “specific references to the affidavits, parts of the record, and other
supporting materials relied upon” as required under Local Rule 56.1(b)(3)(A) are subject to the
court's discretion as to their admission. Brasic v. Heinemann’s Inc., 121 F.3d 281, 284 (7th Cir.
1997).



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

JUL 30 2003

JACOB STRYKOWSKI, )
Plaintiff, ) Hon. Blanche M. Manning
Vv. } Case No, 02 C 0778
RUSH NORTH SHORE MEDICAL }
CENTER, )
Defendant. }

MEMORANDUM AND ORDER
Plaintiff Jacob Strykowski brought this action against Defendant Rush North Shore
Medical Center (“RNS”), under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, ct.
seq., alleging unlawful discharge (Count J) and retaliatory discharge (Count Tl). The instant
matter comes before the Court on RNS’s Motion for Summary Judgment, pursuant to Federal

Rule of Civil Procedure 56. For the reasons that follow, the motion is GRANTED.



B. Essential Function of Job

RNS also contends that Strykowski was not entitled to rcinstatement because he was
unable to perform his essential job functions at the end of the statutory 12 week period. The
regulations promulgated under the FMLA state that “if the employce is unable to perform an
essential function of the position because of a physical or mental condition, including the
continuation of a serious health condition, the employce has no right to restoration to another

position under the FMLA.” 29 C.F.R. § 825.214(b). In Madison v. Sherwin Williams Co., 158

F. Supp. 2d 853, 859 (N.D. Ill. Apr. 6, 2001), the court held that an employee had no right under
the FMLA to be restored to her former position because she could not perform an essential
function of her job, The Court reasoned that “[the employec] was physically unable to perform
the duties [of her former job]... [a]ecordingly, [she] has no rights to be restored to [her

position]... under the FMLA.” Id, Likewise, in Tardie v. Rehabilitation Hospital of Rhode

Island, 168 F.3d 538, 544 (1st Cir. 1999), the court found that “(unlike the ADA the FMLA
regulation [Section 825.214(b)] omits the qualifying ‘with or without reasonable
accommodation’ language.” See also Alifiano v. Merck & Co., 175 F. Supp. 2d 792, 795 (E.D.
Pa. Dec. 7, 2001) (court dismissed employee’s unlawful termination action under the FMLA
because she was unable to return to work and perform her job and “the FMLA docs not require
an employer to reasonably accommodate an employcc’s serious health condition”).

Here, the evidence shows that Strykowski was unable to perform the duties of a

respiratory therapist at the time of his termination.’ His responsibilities prior to his leave

? Stryskowski contends that his boss made arrangements for him to resume working for
RNS at a newly created, light duty position. As a matter of law, however, under the FMLA,
RNS was not required to restructure or accomodate Strykowski.

12



Herc, as detailed above, RNS has shown that it terminated Strykowski because after his
leave time expired he was unable to perform the essential functions of his job, not because he
availed himself of FMLA Icave. In response, Strykowski contends that his co-worker was
permitted to return to work with limitations after an extended absence from work due to a “non-
occupational injury.” Strykowski asserts that the co-worker was allowed to return because he,
unlike Strykoski, did not request formal FMLA leave. The other employee, however, unlike
Strykowski, had cnough PTO to cover the duration of his absence and obtained a full medical
release at the expiration of his leave. Consequently, RNS is entitled to summary judgment on

the retaliatory termination claim.

15