DISCUSSION

Lucy contends defendants violated his FMLA rights by failing to provide timely notice of his
status as a “key employee” and by failing to reinstate him. Pl. Opp. Mot. at § 1. Lucy’s contentions
fail as a matter of law. As an initial matter, Lucy’s reliance on the FMLA’s notice requirements
governing key employees is misplaced. Lucy was not denied job restoration. See 29 U.S.C. §
2614(b); 29 C.F.R. § 825.312(f) (employer may deny restoration to a key employce in certain
circumstances, provided timely notice of “key employee” designation given). Defendants repeatedly
received information that Lucy was using his FMLA leave for Operation PUSH work. It is
undisputed that Lucy obtained FMLA leave for the stated purpose of caring for his newly born son
and wife. It is also undisputed that without informing his employer, Lucy negotiated and signed a
contract with another employer under which he performed 380 hours of work during his FMLA
leave. This was a fraud on McKinley. Lucy cannot establish that defendants interfered with his
FMLA rights or retaliated against him by failing to reinstate him. 29 CF.R. § 825.312(g) ([ajn
employee who fraudulently obtains FMLA Icave from an employer is not protected by FMLA’s job
restoration . . . provisions”),

Lucy’s insistence that he was actually caring for his newly born son and wife during his
FMLA leave is irrelevant, Defendants need only prove they honestly believed that Lucy misused
FMLA leave for Operation PUSH work. Kariotis v. Navistar int'l Transp, Corp., 131 F.3d.672, 681
(7" Cir. 1997). Put another way, defendants “need not conclusively prove that [Lucy] had misused

[his] leave; an honest suspicion will do.” Id. (citing 29 C.F.R. § 825.216(a)). Lucy concedes Jones’

sincere concern over his Operation PUSH work while on FMLA leave. Def. Facts at § 57.



a “key employee” to whom job restoration could be denied under the FMLA. Jones’ notice was
based on the assumption Lucy was “acting in good faith and. . . actually on leave to care for your
child or your wile . . . [not] to try working for another employer.” Jd. at § 44. Thereafter, and
throughout Lucy’s FMLA leave, Jones heard from multiple McKinley employees and consultants
that Lucy worked at Operation PUSH as either a consultant or as chief financial officer, In late
October, Lucy again denied he was employed by Operation PUSH and stated he planned to return
to McKinley after FMLA leave. In response, Jones informed Lucy that “information continues to
come to my attention that you have accepted the position of Chief Financial Officcr at Operation
PUSH” and “if [confirmed], we will consider [it] as a voluntary resignation.” Jd. at J 33.
Ultimately, Jones retained a detective agency; it reported Lucy was employed by Operation PUSH
as a contractor in the capacity of chief financial officer. Meanwhile, Jones also discovered Lucy’s
deficient performance of certain tasks, including the untimely submission of paperwork resulting in
the loss of a $381,000 grant. In late November 2001, Jones terminated Lucy’s employment, citing
primarily conflict of interest and breach of trust in performing work for Operation PUSH during his
paid FMLA leave and, secondarily, Lucy’s performance failings. Until February 2003, Lucy worked
for Operation PUSH. This lawsuit followed in December 2003, During discovery, Lucy admitted
performing 380 hours of Operation PUSH consulting work during his paid FMLA Icave from
McKinley. On June 1, 2004, two days before discovery closed, Operation PUSH produced Lucy's
previously undisclosed employment contract. This contract — signed on September 4, 2001 — reveals
Lucy accepted a vice president/chief financial officer position, contingent upon completion of a

contract assignment from September 4 to November 12 for a minimum of 15 weekly hours on

‘Tuesdays, Wednesdays, Thursdays and Saturdays,



Lucy also fails to demonstrate pretext. He has not established that he is similarly-situated
to the two McKinlcy employees’ with outside employment. Unlike them, Lucy was Jones’ second-
in-command. See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7" Cir. 2000), Nor has Lucy
specifically rebutted the performance deficiencies identified by Jones, notably the loss ol'a $381,000
grant. Instead, Lucy vaguely alludes to his own satisfactory performance and his periodic checking
of voicemail and emuil. See Clay v. City of Chicago, 143 F.3d 1092, 1094 (7" Cir. 1998); Anderson
v, Stauffer Chemical, 965 F.2d 397, 403 (7" Cir. 1992).

CONCLUSION

Defendants are entitled to judgment as a matter of law.

July 30, 2004 ENTER:

‘@)
eet Conlon

United States District Judge



Minute Qrder Form (06/97),

()

United States District Court, Northern District of Minois

N: Kiya Judge Suzanne B, Conlon Sitting Judge if Other
or Magistrate Judge ° than Assigned Jude
GASE NUMBER 03 C 8688 DATE 7/30/2004
CASE LUCY vs. JONES, et al.
TITLE
LInthe following box (a) indicute the purty filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, und (b) state briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

Notified counsel by telephone.
Docketing to mail notices.
Mail AQ 450 fortn.

Copy to judge/magistrate judge.

qa) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due_,___- Reply to answer briefdue___.
(4) im Ruling/Hearing on, | ___ set for at
(5) 1) Status hearing[held/continued to] [set for/re-set for] on setfor al
(6) ia) Pretrial conference[held/continued to) [set for/re-set for] on set for at
(7) 0 Trial[set for/re-set for] on. _ at
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) COlLocal Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).
ao of {Other docket entry] Defendants’ motion for summary judgment [26-1] is granted. Defendants’
motion for dismissal, attorneys’ fecs, and sanctions [44-1] is mootto the extent the motion sccks dismissal
of plaintiff's complaint with prejudice. The request for attorneys’ fees and sanctions [44-1] is referred
tothe assigned magistrate judge fora report and recommendation. ENTER MEMORANDUM OPINION
AND ORDER. : 3
al [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required, umber of notices
wv | Notices mailed by judye’s stat.

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

EASTERN DIVISION
CECIL B. LUCY, SR., )
Plaintiff, } No. 03 C 8688
Vv. } Suzanne B. Conlon, Judge
GEORGE JONES, JR. and ADA §. MCKINLEY ;
COMMUNITY SERVICES, INC, ) eect
Defendants. «

MEMORANDUM OPINION AND ORDER

BACKGROUND

Cecil B. Lucy Sr, sues Ada S. McKinley Community Services, Inc., eigppamniiy social
service organization, and George Jones, Jr., its executive director, for violations of the Family
Medical Leave Act, 29 U.S.C. § 2601, ef seq., and intentional infliction of emotional distress,’
Defendants move for summary judgment. Despite receiving a Local Rule 56.2 notice to pro se
litigants opposing summary judgment, Lucy fails to comply with Local Rule 56.1. Lucy’s response
to defendants’ facts fails to cite to admissible record evidence supporting his denials of {ff 21, 24,
43, 45, 61-62, 68, and 73, contradicts prior deposition testimony in { 30, and improperly includes
additional facts and administrative regulations in sections IIJ-VI and XI. Lucy’s additional facts
improperly incorporate legal argument in { 3 and wholly irrelevant facts in §[] 5-9. Indeed, Lucy

admits receiving notice of, but not complying with, Local Rule 56.1 requirements. Pl. Emer. Mot.

‘Lucy is not pursuing his claim for intentional infliction of emotional distress. Pl. Opp.
Mot. at 2.



at J] 6-8, Docket No. 42-1. Thus, Lucy’s submission is disregarded to the extent it {ails to comply
with Local Rule 56.1,

The following facts are undisputed. In 1996, Lucy was hired by McKinley and later became
chief financial officer, a role requiring management of accounting and preparation of budgets and
audits. Lucy was Jones’ second-in-command, assuming his duties when necessary. McKinley’s
handbook contains a conflict of interest policy and a code of cthics. The former prohibits financial
interests that “raise{] a reasonable question of conflict with... [McKinley] responsibilities”, while
the latier “requires honesty, integrity, ethical, and legal behavior from every individual in all
interactions . . .” Def. Facts at {¥] 8-9.

In spring 2001, Lucy notified Jones of his wife’s pregnancy. In July, Lucy met with
Operation PUSH representatives to discuss performing accounting services as an “independent
contractor,” and thereafter requested from McKinley a 12-week FMLA leave beginning September
4, (His wifc’s due date was September 17.) In carly September, Lucy again discussed consulting
with Operation PUSH, purportedly on an “as-needed” basis without set working hours. On
September 4, the day on which Lucy requested his FMLA leave to commence, he started Operation
PUSH “consulting” or “contracting.” On September 7, Lucy’s wife entered the hospital and gave
premature birth to their son. Due to her hospitalization, Lucy did not work for Operation PUSH
between September 6 and 19, On September 6, Lucy’s paid FMLA leave commenced. Lucy did not
inform Jones of his relationship with Operation PUSH prior to going on leave.

On September 22, Jones contacted Lucy after hearing rumors that he had accepted a position

with Operation PUSH. Lucy denied the rumors, but admitted performing “some independent

contract work” in “a limited role.” 7d. at § 40. In October, Jones notified Lucy he considered him