interested in remaining with the same children that she had become involved with in the junior lifeguard
program. (P/.St., Exs.N; O). According to the testimony of Mr. Anderson, the children from the Ridge
Park program went to South Shore Beach during the summer, so plaintiff would be working with the same
children. (Anderson Dep. at 47).

Plaintiff, then, got nearly everything she wanted save for an exact location, but filed a lawsuit
anyway. To allow sucha claim, which would require the court to parse the plaintiff's fondest hopes and
preferences with her minor disappointments and inconveniences would truly render the court a “super
personnel board.” Culver v. Gorman & Co., 416 F.3d 540, 547 (7" Cir. 2005)(“As has been
regurgitated ad nauseum [sic], this Court is nota ‘super personnel review board’ that second-guesses an
employer's facially legitimate business decisions.”).> Summary judgment is clearly appropriate on this claim.

IV.
THE PARK DISTRICT HAS FAILED TO ESTABLISH ITS ENTITLEMENT
TO SUMMARY JUDGMENT ON THE FMLA CLAIM

In Count II] of her complaint, the plaintiff alleges that the Park District denied her request for leave
under FMLA. The Family and Medical Leave Act of 1993 “FMLA” or “Act”) entitles eligible employees
to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset ofa
“serious health condition” in an employee's spouse, child, or parent. 29 U.S.C. § 2612(a)(1)(C). The Act
creates a private right of action to seek both equitable reliefand money damages “against any employer

(including a public agency) in any Federal or State court of competent jurisdiction,” § 2617(a)(2), should

5 The suspicion is that plaintiff manufactured this implied employment contract claim in the realization
that she could not address her disappointments regarding her requested demotion as adverse employment
actions under Title VII. See Griffin v. Potter, 356 F.3d 824, 829 (7" Cir. 2004)(change in work location that
lengthened commute, and changed shift not adverse employment actions); Grube v. Lau Industries Inc.,257
F.3d 723, 728 (7th Cir.2001) (altered work hours not adverse employment action)

20



which employmentactions its motion for summary judgment covers. There was, of course, a demotion at
plaintiff's request. That occurred in June of 2003 but, according to plaintiff’ s complaint and response to
the Park District’s motion for summary judgment, that is not the disciplinary action of which plaintiff
complains. Instead, plaintiff bases her Title VII claim on the transfer that occurred in the late summer of
2002. (Complaint, {§ 11-12; Plaintiff's Response in Opposition to Defendant’s Motion, at 3-4).
That was the transfer to the Foster Park location, which also involved plaintiff losing her supervisory
responsibilities. It is a transfer that the Park District does not discuss at any length in its opening or reply
memoranda.

The Park District can arguably be said to refer to the Foster Park transfer, although certainly not
specifically, insofar as it submits that changes in location were a part of plaintiff’ s employment under the
collective bargaining agreement. But the evidence suggests that this was not merely the lifeguard transfer
the Park District seeks to characterize itas. This particular change in location included a diminishment in
job responsibilities, which can be considered an adverse employment action under some circumstances.
Moser v. Indiana Dept. of Corrections, 406 F.3d 895, 904 (7" Cir. 2005)(adverse employment action
might be indicated by significantly diminished material responsibilities); Hottenroth v. Village of Slinger,
388 F.3d 1015, 1029 (7" Cir. 2004)(same). The plaintiff went from supervising several lifeguards at
multiple pool locations to simply being a lifeguard at one pool with no supervisory responsibilities. The Park
District does not argue that the loss of a supervisory role cannot constitute an adverse employment action.
Indeed, it appears disinterested in this count of plaintiff's complaint: it does not address the issue of adverse
employment action at all, citing no cases regarding what does, or does not, constitute an adverse

employment action. Such a lackadaisical effort can hardly be regarded as meeting the Park District’s

14



FMLA. See 29 C.F.R. §§ 825.302(c), 825.303(b); Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008
(7th Cir.2001); Stoops v. One Call Communications, Inc., 141 F.3d 309, 312 (7th Cir.1998); Price v.
City of Fort Wayne, 117 F.3d 1022, 1025-26 (7th Cir.1997). The plaintiff’ s requests went beyond this
minimal requirement, as she specifically mentioned the FMLA in her September 16" letter. (P/.St., Ex.
B). In addition, she supported her request with a note from her son’s physician explaining the boy’s
condition. Again, that would seem to be an adequate “certification” under the statute. See 29 U.S.C. §
2613. Why it might not be adequate for the Park District’s purposes is a matter of speculation. And
speculation certainly does not discharge its burden of establishing its entitlement to summary judgment.
CONCLUSION
For the foregoing reasons, the motion of the defendant Chicago Park District for summary judgment

[# 21] is GRANTED in part and DENIED in part.

ENTERED:

DATE: 2/24/06

24



meeting regarding the policy changes. (Def-St. 113; Pl.Rsp. 13; Plaintiff's Local Rule 56.1 Statement
of Facts, 926-27). The difference, according to the Park District, was that the male lifeguards did not
“grandstand” or “get people riled up” the way plaintiff did. (Def-St. 14). Eric Fisher, who was the
assistant manager of the Beaches and Pools Department at that time, testified that plaintiff's behavior at the
meeting amounted to direct insubordination. (Def-St. J 15; Pl.Rsp. § 15).

According to the plaintiff, she was told “if you don’t like it, there’s the door.” (DefSt. 11;
PLRsp.§ 11). Butthe parties agree that Ms. Donnelly was not asked to leave the meeting or disciplined
forherremarks. (Def-St. 11; P/.Rsp. 411). The Park District’s brief focuses exclusively on this incident,
and its motion for summary judgment on plaintiff's Title VII claim rests on the argument that, because
neither the plaintiff nor the male lifeguards were disciplined after the meeting, plaintiff cannot show she was
treated differently from similarly situated males. (Defendant 's Memorandum in Support of Its Motion
for Summary Judgment, at 5). In so doing, however, the Park District ignores another incident that
plaintiff clearly alleges in her complaint as part of her Title VII claim. The incident, which occurred during
the same time frame in the summer of 2002, involved plaintiff's response to a request to discipline two
lifeguards under her supervision. (Complaint, {{] 10-12).

In regard to this second incident, it is undisputed that plaintiff was reprimanded for failing to
adequately discipline two lifeguards working at one of the pools she supervised. (Def-St. § 11; Pl.Rsp. J
11; PLSt. § 15). She was told to issue written reprimands to the two employees. According to the
plaintiff, she issued the reprimands despite her misgivings. (P/.St. 19; Ex. J, Fisher Dep. at 38). Plaintiff
testified that she wrote a reprimand, but also included a “rebuttal,” indicating that she did not feel the two

lifeguards deserved disciplinary action. (P/.St., Ex. G, Plaintiff's Dep. at 43), The Park District denies that



that employer “interfere with, restrain, or deny the exercise of FMLA rights, § 2615(a)(1); See Nevada
Dept. of Human Resources v, Hibbs, 538 U.S. 721, 724-25 (2003). Under the statute, an employer may
require that a request for such leave “be supported by a certification issued by the health care provider of
the ...son.... The employee shall provide, in a timely manner, a copy of such certification to the
employer.” 29 U.S.C. § 2613.

The Park District argues that it is entitled to summary judgment on this claim because it granted
plaintifften days of leave and she was not subjected to any adverse employment action upon her return.
(Defendant's Memorandum in Support of Its Motion for Summary Judgment, at 6; Reply Brief in
Further Support of Defendant's Motion, at 5). But plaintiffs claim goes beyond the ten days the parties
agree that the Park District granted plaintiff, and has nothing to do with whether plaintiff suffered any
adverse employment actions upon her return to work. Under the FMLA, a plaintiffis not limited to
pursuing a cause of action for discrimination or retaliation, but may maintain a claim for interference with
or denial of leave. Kauffman v. Federal Exp. Corp., 426 F.3d 880, 884-85 (7" Cir. 2005). Contrary
to the Park District’s characterization, the plaintiff s claim is that the Park District denied additional
requests for leave. The Park District’s motion and supporting memoranda, however, do not address these
additional requests for leave.

As the party moving for summary judgment, the Park District carries the initial burden of production
to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, ifany, which it believes demonstrate the absence ofa genuine issue of material
fact.” Celotex Corp., 477 U.S. at 323 (1986); Outlaw v. Newkirk, 259 F.3d 833, 837 (7" Cir. 1998).

It can discharge this burden by “ ‘showing’— that is, pointing out to the district court — that there is an

21



ifshe did not return when her leave expired, she would be subject to disciplinary action. (P/.St. §§ 7-8).

As already noted, the Park District does not develop its argument for summary judgment on
plaintiff's FMLA claim, nor cite any cases to support its position. In the scant three sentences it devotes
to the topic in its opening brief reproduced verbatim in its reply brief— it submits only that it did not deny
plaintiff's original request for leave. The only semblance of an argument to be found is the Park District’s
suggestion in its Local Rule 56.1 submissions that the plaintiff did not submit a formal request for leave or
support it with the required medical documentation. There, although it does not dispute that plaintiff was
entitled to the leave requested, it submits that her letters did not amount to “formal requests for FMLA
leave” and that the medical documentation she provided did not constitute substantiation for FMLA
purposes. (Def. Rsp. J§ 3-6). Neither assertion is supported by citation to the record. In addition, both
are essentially legal arguments that have no place ina rule 56.1 submission and need not be considered.
Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7" Cir. 2000). Even if
these legal arguments had been appropriately advanced and were to be considered, neither is developed
or supported by citation to case law. Like its argument for summary judgment on plaintiff's Title VII claim,
then, the Park District’s argument for summary judgment on plaintiff s FMLA claim is perfunctory,
conclusory, and undeveloped, and need not be considered. See Estate of Moreland, 395 F.3d at 759.
As with its Title VII argument, however, I will briefly address so much of the Park District’s position as can
be gleaned from its submissions

As to whether plaintiff's letters constituted “formal requests,” the Park District’s position can only

be guessed at because the Park District chose not to express it. Under the FMLA, an employee need only

request leave related to a serious health condition; she is not required to make a specific reference to the



an instance, an employee handbook or policy statement cannot override or modify the clear and
unambiguous terms of an express employment contract. McWhorter v. Realty World-Star, Inc., 171
IILApp.3d 588, 593-94, 525 N.E.2d1205, 1208 (5TM Dist. 1988); Lashbrookv, Oerkfitz, 65 F.3d 1339,
1345 (7" Cir. 1995). Thus, as the Park District suggests, the provisions of the collective bargaining
agreement control the terms of the plaintiff's employment relationship with the Park District. She cannot
maintain a claim for the breach of contract based upon a procedural manual.

Apparently realizing she had no breach of contract claim as she originally fashioned it, plaintiff
reshaped her allegations in her response to the Park District’s motion for summary judgment. In so doing,
she also realized that she had to get around the terms of the collective bargaining agreement, because that
agreement specifically provides that the Park District may transfer lifeguards from pool to pool according
to its staffing needs. (Def-St. J 8-9; Pl. Rsp. J] 8-9). So, in the new version of her breach of contract
claim, she alleged that she had an implied contract with the Park District regarding the demotion she
requested: she wanted a demotion only if it meant she would be transferred to her choice of pool location.
According to the plaintiff, she

conditioned her demotion on being transferred to Ridge Park so that she could continue

to work with the Junior Lifeguard Program. She repeatedly stressed this offer to the

[Park] District in letters and conversations with the [Park] District. The [Park] District

accepted her offer and received the benefit ofa highly trained employee who they would

have to pay $2.26 less anhour. Upon its acceptance, however, the [Park] District created

an inequity between itself and [plaintiff]. It received all of the benefits while [plaintiff]

received no benefit since the [Park] District transferred her to the South Shore Cultural

Center. By failing to transfer [plaintiff] to Ridge, the [Park] District breached its implied

contract with her.

(Plaintiff's Response in Opposition to Defendant's Motion, at 7(citations omitted)).

Thus, instead of arguing that the Park District breached a contract expressed in an employee

18



2005).

The “party seeking summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, ifany,’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. But there is “no express
orimplied requirement in Rule 56 that the moving party support its motion with affidavits or other similar
materials negating the opponent's claim.” /d. at 324. The burden on the moving party may be discharged
by showing — that is, pointing out to the district court—that there is an absence of evidence to support the
nonmoving party's case. Id.

The critical point ~— and the one often forgotten —is that summary judgment is mandated against the
nonmoving party who fails to make a showing sufficient to establish the existence of an essential element
to that party’s case and on which that party will bear the burden of proof at trial. Alexander v. City of
South Bend, 433 F.3d 550 (7" Cir. 2006); Rozskowliak y. Village of Arlington Heights, 415 F. 3d
608, 612 (7" Cir. 2005). In that situation, there can be no genuine issue as to any material fact since a
complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial. /d, at 322-23. See also Nebraska v. Wyoming, 507 U.S. 584, 590 (1993);
Holbrook v. Norfolk Southern Railway Co., 414 F.3d 739 (7" Cir. 2005).

In determining whether a genuine issue of material fact exists, courts must construe all facts in the
light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of
that party. See Matsushita Electric Industries v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). But,

neither “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at

10



disciplinary in its Local Rule 56.1 response. The evidence it offers in support of this characterization,
however, especially in light of the formal memorandum, is unconvincing. According to the testimony of Mr.
Anderson, the transfer would not have occurred “ifall [plaintiff] was doing was arguing at the meetings.”
(Def St., Ex. E, Anderson Dep. at 35-36). Similarly, Mr. Fischer testified that plaintiff was transferred to
the single pool location because she was not performing her job satisfactorily, although he did not know
whether he would term the move “disciplinary.” (Def-St., Ex. J, Fisher Dep. at 48). He did add, however,
that the location for the transfer was chosen based upon staffing requirements. (/d. at 47). In any event,
after three weeks at Foster Park, plaintiff was assigned to the pool at the Agricultural High School in Gage
Park. (Def St. § 11; PL.Rsp. § 11). Plaintiff complains of this assignment as well, claiming it was
discriminatory because it involved evening hours, and she preferred working days while her children were
at school. (Plaintiff's Dep. at 56).

At about that same time, the plaintiff's son had broken his leg and was ina full leg cast. On
September 3, 2002, plaintiff requested ten days of leave to care for her son, attaching hospital paperwork
to her request. (Def St.,§35; PI.St. § 1, Ex. D). She mentioned that she might need additional time off,
depending on her son’s progress by the 15" of September. (/d.). The Park District granted her request
by letter on September 10, 2002, and informed her that if she needed additional time off, she would have
to request it and provide appropriate documentation. (Def:St.,35; PL.St. J 1, Ex. ). Plaintiffdid request
additional leave, in two separate letters: one to Mary Savia dated September 12, 2002; one to Jamie
Anderson dated September 16,2002. (P/.St. 493-5). In support of her requests, the plaintiffsubmitted
medical documentation in the form ofa physician’s note. (P/.St. 6, Ex. C). She also indicated that she

would be able to work between the hours of 9:00 a.m. and 2:00 p.m. while her son was at school. (/d.).



plaintiff issued the reprimands, but offers no evidence to support its position. (Defendant's Response to
Plaintiff's Local Rule 56.1 Statement (“Def-Rsp.”), 4 19).

The testimony of both its Deputy Director of Beaches and Pools, and its Manager of the Beaches
and Pools Department, however, both tend to support the plaintiff. Jaime Anderson, the deputy director,
explained that, when Mr. Fischer instructed plaintiff to write up the two lifeguards, she attached a letter
saying that “she was doing this because Mr. Fischer had seen these employees doing whatever the
infraction was.” (Def-St., Ex. E., Anderson Dep., at29). At his deposition, Mr. Fischer admitted that
plaintiff did, in fact, write the reprimands, but they included an explanation that she did not agree with the
reprimand. (Def.St., Ex. J., Fischer Dep., at 38-40). The Park District does not discuss this testimony
anywhere in its materials, however, because it does not address this incident as a part of plaintiff's Title VIT
claim.

Shortly thereafter, the Park District stripped the plaintiff of her supervisory responsibilities and
assigned her toa single pool in Foster Park. (P/.St. § 17). Ina memorandum dated August 12, 2002, the
Park District informed plaintiff that her work was unsatisfactory, that she challenged management at
meetings, and failed to discipline staff when directed. (PI.St., Ex. L). The memorandum called plaintiff's
behavior and actions “unacceptable” and informed her she was being transferred immediately. (/d.). It
further informed her that her performance would be reviewed in three months and if it was not satisfactory,
she would be suspended or terminated. (/d.).

Curiously, the Park District contends that this was nota disciplinary action, but merely a transfer
due to seasonal staffing needs. (Defendant’s Response to Plaintiff's Local Rule 56.1 Statement, {§ 16-

17). It does not discuss the issue in its opening or reply briefs, but merely denies that the transfer was

6



manual — the type of contractual claim alleged in her complaint and acknowledged in Du/dulao — the
plaintiff argues the Park District breached some other implied agreement not found in the manuals or in the
collective bargaining agreement. This is a very different claim than that which the plaintiff pled in her
complaint. Plaintiffhas abandoned the claim found in her complaint and manufactured another in her
response memorandum. It is well-settled, however, that a plaintiff may not amend her complaint through
arguments ina brief in opposition toa motion for summary judgment. Grayson v. O'Neill, 308 F.3d 808,
817 (7" Cir. 2002); Shanahan vy. City of Chicago, 82 F.3d 776, 781 (7" Cir.1996). Accordingly,
plaintiff may not employ her newly-minted “implied contract” claim to stave off the Park District’s motion
for summary judgment as to Count II.

Even if plaintiffhad properly set forth her breach of contract claim, itis clear that itis unsupportable
based on this record. The manner in which plaintiff characterizes her “offer” to the Park District is not
entirely accurate. First and foremost, it was not an “offer” but, in plaintiff's own terms, a “plea.” (P/.St.,
Ex. N). Aside from that, plaintiff's concerns were not limited to being assigned to Ridge Park.

She wanted to work only daytime hours when her children were in school. (P#.St., Exs. N; O).
The Park District granted this request by assigning her to a shift from 9:00 to 3:00 p.m. Monday through
Thursday. (P/.St., Ex. P). She wanted to be assigned to a pool close to home, and while she expressed
a preference for Ridge Park (PI.St., Exs. N; O), she also mentioned South Shore Beach. (P/.S¢., Ex. O).
In fact, at her deposition, she testified that she had requested a location “somewhere south of Archer
Avenue...” (Plaintiff's Dep. at23). While the Park District did not give her her first choice —it was not
required to under the collective bargaining agreement — it did assign her to a south side location, and one

she had mentioned: South Shore Beach. (P/.St., Ex. P). Finally, the plaintiff indicated that she was

19



On June 27, 2003, the Park District granted plaintiff's request for a demotion to lifeguard. (De/-St.
(21; PLRsp. $21; PLSt., Ex. P). Itassigned plaintiff to the South Shore Beach location for the hours of
9:00 a.m. to 3:00 p.m. Monday through Thursday. (P/.St.,Ex. P). Asa result, the plaintiffsuffered an
income loss, but the demotion was pursuant to her request. (Def.St. § 24; Pl.Rsp. 424). In granting
plaintiff's request, however, the Park District noted that it need not honor any such transfer requests under
the terms of the collective bargaining agreement. (P/.St. 436, Ex. O; Def. Rsp. |36). The applicability
of this collective bargaining agreement stems from plaintiff’ s membership in the Service Employees
International Union (“SEIU”). (Def.St. ] 7; Pl.Rsp. § 7). There is no dispute that the terms of the
agreement allow the Park District to transfer lifeguards according to its staffing needs. (Def-St. | 8-9;
PLRsp. § 8-9).

ANALYSIS

1
SUMMARY JUDGMENT PRINCIPLES

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, ifany, 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); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are facts that “might affect the outcome
of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248
(1986). A dispute over material facts is genuine if “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson, 477 U.S, at 248; Alexander v. City of South Bend, 433

F.3d 550 (7" Cir. 2006); Ballance y. City of Springfield, Illinois Police Dept., 424 F.3d 314 (7" Cir.



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

EASTERN DIVISION
)
THERESA DONNELLY, )
Plaintiff, No. 03 C 5201
vs. } Magistrate Judge Jeffrey Cole
CHICAGO PARK DISTRICT, }
Defendants. }
)

MEMORANDUM OPINION AND ORDER

The Chicago Park District has moved for summary judgment on the three-count complaint of
Theresa Donnelly. The motion is granted as to Count II, denied as to Count III and as more fully explained
below, further briefing is ordered on Count I.

INTRODUCTION
A

For many years there have been complaints from the most responsible of quarters about the quality
of briefing at all levels of the judicial system. The late Karl Llewellyn recounted how every one of his many
law professor friends who became judges told him that “the general run of briefs which has come before
his court— with of course many gratifying exceptions —seems to him barely and scrapingly passable, or else
inadequate or worse.” The Common Law Tradition: Deciding Appeals, 30 (1960). Much to his
amazement and some dismay, Professor Llewellyn’s own endeavors confirmed the “frequency with which
the relevant briefs miss or obscure telling points, choose foreseeably losing ground, or mismanage promising

positions.” Jd.



favorably than similarly situated male employees because she cannot demonstrate that she was subjected
to anadverse employment action. (Defendant's Memorandum in Support of Its Motion for Summary
Judgment(“Def Mem.”), at 5).

But in so doing, as already suggested, the Park District ignores the plaintiffs allegations and
asserted facts, choosing instead to articulate and then defeat its own version of plaintiff's Title Vil claim.
The result is that a truly informed decision regarding whether there is a genuine issue of fact regarding
plaintiff's Title VII cannot be made. Accordingly, the Park District’s motion shall be denied as to plaintiff's
Title VII claim, subject to further briefing described below.

Title VII prohibits employers from discriminating against employees on the basis of sex or gender.
42U.S.C. § 2000e-2(a)(1). Claims of discrimination under Title VII for disparate treatment can be proven
either through direct or indirect evidence. Farrell v. Butler University, 421 F.3d 609, 612-613 (7" Cir.
2005). Here, the plaintiff proceeds under the McDonnell Douglas indirect evidence method, See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this method, the plaintiff bears the
initial burden of establishing a prima facie case. Id. at 802; Farrell, 421 F.3d at 613. To make outa
prima facie case of “disparate treatment” gender discrimination under Title VII, a female plaintiff must
show that she: (1) is amember ofa protected class, (2) is performing her job satisfactorily, (3) suffered an
adverse employment action, and (4) was treated less favorably than at least one similarly-situated male
colleague. Farrell, 421 F.3d at 613. Once the plaintiffhas established a prima facie case, the burden
of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the decision.
McDonnell Douglas, 411 U.S. at 802; Farrell, 421 F.3d at 613.

If the defendant satisfies its burden, the burden shifts back to the plaintiff to show that the

12



247, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at
586, is sufficient to defeat a motion for summary judgment. McGuire v. United Parcel Service, 152 F.3d
673, 676 (7" Cir. 1998); Mills v. First Federal Savings & Loan Ass'n. Of Belvidere, 83 F.3d 833, 840
(7" Cir. 1996). “Ifthe evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 249-50; Unterreiner v. Volkswagen of America, Inc., 8 F.3d
1206, 1210 (7* Cir 1993). Inferences that are supported only by speculation or conjecture will not defeat
asummary judgment motion. Holbrook v, Norfotk Southern Railway Co., 414 F.3d 739 (7" Cir. 2005);
United States v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d
448, 463 (7" Cir. 2005); McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7" Cir, 2004). In a
summary judgment context, the judge must ask not whether the evidence unmistakably favors one side or
the other, but whether a fair minded jury could return a verdict for the plaintiff on the evidence presented.
Rudin v. Lincoln Land Community College, 420 F.3d 712, 726 (7" Cir. 2005); Durkin v. Equifax
Check Services, 406 F.3d 410, 414 (7" Cir. 2005).
I.
THE PARK DISTRICT HAS FAILED ON THE PRESENT BRIEFING TO ESTABLISH
ENTITLEMENT TO SUMMARY JUDGMENT ON COUNT I

Count I alleges that the Park District discriminated against the plaintiff because of her gender by
treating her differently than it did male lifeguards in violation of Title VII. More specifically, she claims that
the Park District reprimanded her, took away her supervisor duties, and transferred her to a less desirable
work location because she had requested better work hours and work location and failed to discipline her
staff. (Complaint, {4 10-12). She claims that male lifeguards were not disciplined for similar actions.

(Complaint, § 13). The Park District argues that the plaintiff cannot show that she was treated less

1!



According to the plaintiff, the Park District denied these requests, and informed her that if she did not retum
when her leave expired, she would be subject to disciplinary action. (P/.S¢. {{] 7-8).

The Park District does not dispute that plaintiff was entitled to the leave requested, but submits that
the letters did not amount to “formal requests for FMLA leave,” and that the medical documentation she
provided did not constitute substantiation for FMLA purposes. (Def Rsp. 43-6). While the Park District
does not exactly dispute that it denied plaintiff's requests, it does question whether the evidence that plaintiff
has submitted —time sheets demonstrating that plaintiff worked on September 12, 10-15, and 21-23—
support that her request was denied. (Def-Rsp. § 7-8).

It was also during this time, September of 2002, that plaintiff formally requested a demotion from
her position of natatorium instructor to that of lifeguard. (DefSt. 21; PL Rsp. 421). Inaletterto Mr.
Anderson dated September 16, 2002, she referenced “many telephone conversations” and “a few personal
appeals to Mr. Eric Fisher” and asked Mr. Anderson “to consider [her] plea to demote [her] to the position
of Lifeguard and assign [her] to Ridge Park.” (P/.St., Ex. N). Plaintiffexplained that “her request was
based on [her] personal needs to be close to home and not away from [her] family every night of the
week,” (/d.), She indicated that Ridge Park would be her preferred location, as she was familiar with the
programs there and the children in those programs. (Id.).

On March 23, 2003, the plaintiff wrote another letter, this time to Mr. Fisher requesting a “transfer
of job responsibilities.” (P/.St., Ex. O). She asked to be reassigned to the Ridge Park junior lifeguard
program and to remain at South Shore Beach during the day. (/d.). She also indicated she would be
happy to work at any one of several locations on Chicago’s south side. (/d.). Her request was premised

on her no longer being able to meet the increased time demands of her pool supervisor position. (/d.).



absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325; Outlaw, 259 F.3d
at 837. Here, the Park District has failed to address plaintiff ’s claim that she was denied additional leave
and has, instead, attacked the non-existent claim that she was discriminated against when she returned to
work. Having failed to even acknowledge the actual claim that is pending before the court, the Park
District has clearly failed to meet its initial burden of demonstrating the absence of a genuine issue of fact,
and has not established that it is entitled to summary judgment as to plaintiff's FMLA claim.

Some initial confusion over the plaintiffs FMLA claim is perhaps understandable as she merely
alleged she was denied leave. But the exact nature of plaintiff s claim — the denial of her additional leave
requests — was clear when plaintiff responded to the Park District’s motion for summary judgment. Rather
than address this in its reply memorandum, the Park District merely reproduced the terse, three-sentence
argument from its opening brief word for word; the argument that plaintiff was granted ten days of leave
and was not discriminated against when she returned to work. (Defendant's Memorandum in Support
of Its Motion for Summary Judgment, at 6; Reply Brief in Further Support of Defendant's Motion,
at 5),

In September of 2002, plaintiff requested ten days of leave to care for her son. (Def-St., $35;
PLSt.§1). The Park District granted her request by letter on September 10, 2002, and informed her that
ifshe needed additional time off, she would have to request it and provide appropriate documentation.
(Def.St.,§ 35; PLSt. § 1). Plaintiff did request additional leave, in two additional letters: one to Mary
Savia dated September 12, 2002, and one to Jamie Anderson dated September 16, 2002. (PLSt. 49 3-
5). In support of her request, the plaintiff submitted medical documentation in the form ofa physician’s

note. (P/.St. 96). According to the plaintiff, the Park District denied these requests, and informed her that

22



2004. Plaintiff began her tenure with the Park District as a lifeguard, and she was eventually promoted to
the position of Natatorium Instructor onan earlier occasion before her career took a turn for the worse for
several months in 2002. During that period, plaintiff contends that she was unfairly reprimanded, relieved
of her supervisor duties, and transferred to a less desirable work location; all ~ according to her— because
she made numerous requests for more desirable work hours and location and failed to discipline her staff.
She claims that the Park District did not take similar action against male life guards who engaged in the
same conduct. Plaintiffalso claims that the Park District refused her request for family medical leave in
September of that year. On July 25, 2003, the plaintiff filed a three-count complaint, alleging that the Park
District discriminated against her because of her gender in violation of Title VII of the Civil Rights Act of
1964, breached its contract with her, and violated the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seg. The Park District has moved for summary judgment on all three claims. For the
following reasons, the Park District’s motion is granted as to Count II, but not as to Counts I and III.
FACTUAL BACKGROUND?

As already noted, the plaintiff's troubles began in 2002, when she was supervising five pool
locations. At that time, the Park District initiated several new policy directives for its lifeguard staff.
(Defendant’s Local Rule 56.1 Statement (“Def-St.”), §{ 11, 13, 19; Plaintiff's Answer to DefSt.
(“PL Rsp.”), 11, 13, 19). Plaintiff admittedly disagreed with the policies and voiced her objections at

a June 2002 meeting. (Def. St. 20; Pl. Rsp. §20). Several male lifeguards also voiced objections at the

? The facts of this dispute, as always in summary judgment proceedings, are drawn from the parties”
Local Rule 56.1 submissions. Koszola v. Board of Educ. of City of Chicago, 385 F.3d 1104, 1109 (7" Cir.
2004)(court is entitled “to decide the motion [for summary judgment] based on the factual record outlined in
the [Local Rule 56.1] statements.”); Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7
Cir. 2004)(court is also entitled to demand “strict compliance” with the local rule)

4



burden of establishing it is entitled to summary judgment on plaintiff's Title VII claim.

With even less exposition that it employs in support of its adverse employment action argument,
the Park District states, ina single sentence, that the plaintiff ’s prima facie case also fails because she can
point to no similarly situated male employees who were treated more favorably. (Def-Mem. at 5). In fact,
inher Local Rule 56.1 submissions, the plaintiff points to two male employees, Robert Cherry and Martin
Ramirez, who were not similarly disciplined for disagreements about “writing up” staff members. (P/.St.
4 20-24). The plaintiff argues these facts in her brief. (Plaintiff's Response in Opposition to
Defendant’s Motion, at 5). The Park District does not address this issue in either ofits briefs. Itmerely
objects, in its Local Rule 56.1 response, that these were isolated examples and have no relevance.
(Def Rsp. 20-24). The Park District fails to either explain this objection or properly support it with
citations to the record.> Unamplified statements by lawyers in briefs do not count. United States ex rel.
Feingold v. AdminaStar Federal, Inc., 324 F.3d 492, 494 (7" Cir. 2003); Car Carriers Inc. v. Ford
Motor Co., 745 F.2d 1101, 1107 (7 Cir. 1984). Consequently, for the purposes of its summary
judgment motion, the Park District is deemed to have admitted the plaintiff's factual (not, of course, legal)
assertions regarding Mr. Cherry and Mr. Ramirez. Ammons v. Aramark Uniform Services, Inc., 368
F.3d 809, 817 (7" Cir. 2004)(Local Rule requires specific citation s to the record to support denials of
asserted facts).

The plaintiff's reference to Mr. Cherry and Mr. Ramirez. is supported by citation to the record: the

testimony of Mr. Fischer. (P/.St. §] 20-24, citing Ex. J). Mr. Fischer testified that there had been “a few”

3 The Park District’s “isolation” objection, unexplained as itis, is certainly curious given the fact that
plaintiff need only show that she was treated differently than one similarly situated male colleague. Farrell,
421 F.3d at 613. Either Mr. Cherry or Mr. Ramirez, “isolated” though they may be, would seem to qualify.

15



shall have fourteen days thereafter to reply.
Il.
THE PARK DISTRICT IS ENTITLED TO SUMMARY JUDGMENT
ON THE BREACH OF CONTRACT CLAIM

Under Count Il of her complaint, the plaintiff alleges that the Park District breached its “express
employment contract” with plaintiff, by which it agreed “that employees would be judged on the basis of
individual merit and ability.” (Complaint, ff 20, 22, 23). The terms of this contract, according to plaintiff,
were set out in “personnel policies and procedure manuals.” (Complaint, § 20). Plaintiff alleges that the
Park District breached this “procedure manual” contract when it demoted and transferred her to a less
desirable position, and denied her request for leave. While employee manuals and handbooks may, in
some circumstances, constitute enforceable contracts under Illinois law, see Duldulao y. Saint Mary of
Nazareth Hosp. Ctr., 115 Il1.2d 482, 490, 505 N.E.2d 314, 318 (1987), the circumstances here dictate
otherwise.

Ather deposition, plaintiffadmitted that she had no individual employment contract with the Park
District. (Plaintiff's Dep. at 61). Itis undisputed that, because the plaintiffis a member of the SEIU, Local
73, her contractual relationship with the Park District is governed by that union’s collective bargaining
agreement with the Park District. (Def'St. | 7; Pl. Rsp. § 7); see Illinois Public Labor Relations Act, 5
ILCS 315/I et seg.(governing the organization and collective bargaining of Illinois’ public employees).*

As such, the collective bargaining agreement constituted plaintiffs express employment contract. In such

‘In Searcy v. Southeastern Pennsylvania Transp. Authority, No. 96-3854, 1997 WL 152791, *4
(E.D.Pa. March 27, 1997), the court, pointing to Pennsylvania’s analogous Public Employee Relations Act,
found that an employee who was subject to a collective bargaining agreement was prevented her from
entering into a separate employment contract.

17



In the instant case, the briefing of the Chicago Park District in support ofits motion for summary
judgment provided, at best, only the most minimal assistance to the court. Indeed, ina number of instances,
it was of no help atall, resorting as it did to the “ostrich-like tactic of pretending that potentially dispositive
authority [and argument] against [the Park District’s] contention[s] d[id ] not exist” —a tactic the Seventh
Circuit has said “is as unprofessional as it is pointless." Hill v. Norfolk & Western Ry. Co., 814 F.2d
1192, 1198 (7th Cir. 1987), Fred A. Smith Lumber Company v. Edidin, 845 F.2d 750, 753 (7th Cir.
1988). See also, Smith v. Chicago School Reform Bd. Of Trustees, 165 F.3d 1142, 1148 (7th Cir.
1999\""The School Board's brief relies heavily on Stafford; tellingly, Smith's brief does not mention that
case.").

Asaconsequence of the Chicago Park District’s inadequate and disappointing briefing — both its
opening and its reply brief—it is impossible to make an informed judgment about Count I, which alleges
gender discrimination under Title VI. While it would be permissible simply to deny the motion as itrelates
to Count I, enough questions appear to be implicated that it would not be institutionally responsible to take
that course, which would necessitate a trial where perhaps there should be none. Thus, the defendant is
accorded the option of filing an additional briefon Count I only directed to the specific questions discussed
at the conclusion of Argument II, infra.

B.
The plaintiff has worked for the Beaches and Pools Department of the Chicago Park District since

1997. She is presently a Natatorium Instructor, having been promoted to that position in December of

'(...continued)
arguments on both sides....").


Judge Friendly and Judge Posner have expressed the same views. See Friendly, The Common
Law Tradition: Deciding Appeals, in Friendly, Benchmarks, 34, 39 (1967); Jeffrey Cole, Economics of
Law: An Interview With Judge Posner, 22 LITIGATION 23, 31 (Fall 1995). So has Judge Gettleman,
who has said that he has seen “some of the most astonishingly incompetent writing imaginable.” Robert
Gettleman, We Can Do Better, 25 LITIGATION 3, 62 (Summer 1999). See also Alexander v. City
of South Bend, 433 F.3d 550, 552 (7" Cir. 2006)(“the parties’ attorney have not presented the factual
background of this case ina clear and well-organized way; the district court characterized Alexander’s
pleadings as ‘poorly written, convoluted and confusing,’ and the same is true of his appellate briefs.”).
Underinclusive and inadequate presentations shift the responsibility to the court to do the lawyer’s
work. That’sa risky business, for it requires the judge to be clairvoyant or intuitively to know the contours
of the unmade argument. And, it rests on the hope that the judge will explicate the arguments that the briefs
have left undeveloped, rather than resorting to the rule that superficial, skeletal, and unsupported arguments
will be deemed waived or forfeited. United States v. Cusimano, 148 F.3d 824, 828 n.2 (7th Cir. 1998).
The hope is, more often than not, vain, for judges are not like pigs hunting for truffles buried in the briefs.
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Itis not their responsibility to research and

construct the parties’ arguments. United States v. McLee,—F.3d— (7" Cir. 2006) 2006 WL 240569."

' There is a necessarily symbiotic relationship between judges and lawyers. The truth, whether one
openly admits it or not, is that judicial accuracy for most judges in any given case—and especially over time
~ is often affected (to some degree) by the quality of the presentations of the lawyers in the case. Justice
Brandeis said it best: “A judge rarely performs his functions adequately unless the case before his is
adequately presented.” The Living Law, 10 IIl.L.Rev. 461, 470 (1916). See also Holmes, The Law, In
Collected Speeches, 16 (1931)( Shall I ask what a court will be, unaided? The law is made by the Bar, even
more than by the bench.”). See also Adamson vy. California, 332 U.S. 45, 59 (1946) (Frankfurter, J.,
concurring). ("the judicial process [is] at its best" only when there are "comprehensive briefs and powerful

(continued...)



defendant’s explanation was pretextual. Farrell, 421 F.3d at613. This showing requires more that simply
demonstrating that the defendant’s decision was "mistaken, ill considered or foolish...” Jordan v.
Summers, 205 F.3d 337, 343 (7th Cir.2000). Instead, pretext “means a dishonest explanation, a lie rather
than an oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th
Cir.2000). As long as the employer honestly believed its reasons for its employment action, pretext has
not been shown. Farrell, 421 F.3d at 613; Jordan, 205 F.3d at 343.

Here, in an exceedingly brief presentation, the Park District argues that plaintiff cannot establish a
prima facie case because she did not suffer any adverse employment action. According to the Park
District, the plaintiff:

fails to point to any demotion in her title, — other than at her own request. All she can

point to is a change in location which she admits was a regular occurrence asa part of her

employment with the Chicago Park District and under her union contract.

(Def Mem. at 5 (emphasis in original)). This, quite literally, is the sum and substance of the Park District’s
argument. Aside from setting forth the familiar McDonnell Douglas burden-shifting rules, the Park District
confines its argument for summary judgment on plaintiff's Title VI claim to seven sentences spread across
its opening and reply memoranda. Such an unadorned, and seemingly half-hearted, request for summary
judgment hardly warrants consideration. See Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7" Cir.
2005)(court need not scour record to locate support for party's argument; perfunctory or undeveloped
arguments are waived). This is especially the case here, where it is the Park District that bears the burden
of demonstrating it is entitled to summary judgment. Celotex Corp., 477 U.S. at 323; Outlaw, 259F 3d
at 837.

The Park District’s failure to expound, at any length, on its position leaves open to speculation

13



employees who had bridled at being directed to issue reprimands, and specifically recalled Mr. Cherry and
Mr. Martinez. (Fischer Dep., at 41). According to Mr. Fischer, Mr. Cherry initially refused to issue a
reprimand when ordered to do so, but eventually did and was not disciplined. (Fischer Dep., at 41-42).
Mr. Ramirez initially refused, was written up, and only then relented. (Fischer Dep., at 42-43). Asaresult,
the write-up was removed from his file. (Fischer Dep., at 43-44). Neither man was transferred as a
disciplinary measure. (Fischer Dep., at 41-44).

The plaintiff was offered a similar opportunity to relent, but chose not to, and added a written
rebuttal. Thus, perhaps the two male lifeguards were not “similarly situated,” because they did notadda
“rebuttal” to the reprimands they eventually submitted. The issue, however, is lost on the Park District
which leaves this portion of plaintiff's case unaddressed, both legally and factually. As a consequence, the
Park District’s motion for summary judgment on plaintiff's Title VII claim is, essentially, unfinished. The
Park District is not entitled to summary judgment as things stand. The Park District, however, is given thirty
days from the date of this opinion, if it chooses, to file new briefs directed to the following questions:

. Is the plaintiff “similarly situated” to the male employees who initially refused to issue the
reprimands within the meaning of Title VII?

. Has the plaintiff satisfactorily performed her job within the meaning of Title VII in light of
the claim of “unacceptable behavior” as set forth in the letter of 8/12/02?

. Was the plaintiff's transfer to Foster Park an “adverse employment action?”

. Is there record evidence that the plaintiff was transferred to Foster Park because of
claimed insubordination rather than because of her gender?

Ifthe Park District chooses to stand on the present record, it may do so. If it chooses to file an

additional brief directed to these issues, Ms. Donnelly shall have thirty days to respond and the Park District

16