B. FMLA

The Park District also seeks summary judgment on Worsham’s FMLA claim, arguing that
“she cannot show that she would not have been restored to an equivalent position had she returned
[to work] at the end of her leave.” (Def. Mem., at 9) (emphasis in original.) The Park District notes
that Worsham received her full 12 weeks of FMLA leave — plus several additional weeks of unpaid
leave — but refused to return to work despite being offered an equivalent position ata different pool
location. (/d.) Worsham insists that she was offered a position at a less desirable location farther
from her home and in a more dangerous area of the city. (PI. Resp., at 9.)

The FMLA provides that “any eligible employee who takes leave [under the Act]... shall be
entitled, on return of such leave — (A) to be restored by the employer to the position of employment
held by the employee when the leave commenced; or (B) to be restored to an equivalent position
with equivalent employment benefits, pay, and other terms and conditions of employment.” 29
U.S.C. § 2614(a)(1). The right to reinstatement is not, however, absolute, “for the statute does not
confer benefits to which an employee would not be entitled had the employee not taken leave.”
Ogpborn v. United Food and Commercial Workers Union, Local No, 881,305 F.3d 763, 768 (7th Cir.
2002) (citing 29 U.S.C. § 2614(a)(3)(B). Atall times, the employee bears the burden of establishing
her right to be restored to the same or equivalent position. Kohis v. Beverly Enterprises Wisconsin,
Inc., 259 F.3d 799, 804 (7th Cir. 2001).

The court finds that Worsham’s FMLA claim fails for several reasons. First, there is no
evidence that Worsham ever attempted to return to work at the end of her leave. Mary Saieva in
Human Resources sent Worsham a letter on December 27, 2002 stating that the Park District had
scheduled a Corrective Action Meeting, in part because Worsham failed to return to work after her
leave expired on December 18, 2002. (Letter from Saieva to Worsham of 12/27/03, Ex. 9 to Saieva

Aff.) Worsham was subsequently discharged at that January 6, 2003 Corrective Action Meeting,

20


title of Natatorium Instructor. (PI. Resp., at 7; Def. 56.1 Resp. J] 29.)?' Nevertheless, Worsham
claims that her job responsibilities decreased adversely, instead of supervising as many as four
pools, she only supervised one. (/d.) (citing Hoffman-Dombrowski v. Arlington Int'l Racecourse,
Inc., 254 F.3d 644, 651 (7th Cir, 2001) (“[Ajn ostensibly lateral transfer may be an adverse
employment action in some situations ifitis accompanied by a dramatic downward shiftin skill level
required to perform job Tresponsibilities.”) (internal quotations omitted). The Park District denies that
the transfer to Kennedy Park constituted a demotion, and notes that employees were often
reassigned to different locations depending upon the needs of the Park District. (Def. Reply, at9.)??

The Seventh Circuit recently addressed the requirements for an adverse employment action
in O'Neal v. City of Chicago, 392 F.3d 909 (7th Cir. 2004). The plaintiffin O'Neal worked as a police
officer and sergeant with the Chicago Police Department ("CPD") before being promoted to the
position of administrative sergeantin the CPD’s Narcotics and Gangs Investigations Section of the
Organized Crime Division (“Narcotics Unit’). Three months after the promotion, however, the
plaintiff was transferred to the position of beat sergeant in one of the districts as a security
precaution taken in response to a rumor that she had previously dated a former Chicago police
officer who had been convicted of selling narcotics eight years earlier. /d. at910. The plaintiff filed
suit against the City of Chicago and the Chief of the Organized Crime Division alleging that the
transfer constituted sex discrimination. /d. The district court granted summary judgment in favor
of the defendants, finding that the plaintiff did not suffer a legally cognizable adverse employment

action. Id.

a Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary

Judgment is cited as “PI. Resp., at__.”

2 Defendant's Reply Brief in Support of its Motion for Summary Judgmentis cited as

“Def. Reply, at __.”

14


Ex, D to PI. 56.1 Resp., at0015.) In any event, Worsham claims that her request for sick leave was
ultimately denied, and that she was docked three days pay totaling $387.96.'' (Grievance Report
of 8/28/02.)

Worsham also contends that upon returning from San Diego, she discovered that one of her
paychecks had been rescinded from her bank account, causing her car payment to be late and
several of her checks to bounce. She apparently inquired about the rescission and was informed
by someone at the Park District that Eric Fisher was responsible." (PI. 56.1] 23; Worsham Dep.,
at 91-92.) The Park District believes that Worsham is confusing two separate incidents. The first
occurred when someone on the Park District staff failed to give the payroll department Worsham's
time sheet in time to credit her direct deposit account. Anderson testified that he called Worsham
at home two or three days in advance to notify her about the problem, and that she received a paper
check in lieu of direct deposit for that time period. (Def. 56.1 Resp. 41 23; Anderson Dep., at 88.)
The second incident occurred when Worsham improperly received “health reimbursement” for
the December 29, 2002 to January 1, 2003 pay period. Worsham, who did not work during those
dates, was noteligible for such reimbursement, but the Park District computers made the payment
automatically. When the Park District conducted an audit of that pay period, it discovered the error
and “called back” the money that had been erroneously deposited in Worsham’s account. (Answers
to Interrogatories, Ex. C to Def. 56.1 Resp., 115.) Itis not clear whether the Park District notified

Worsham when it “called back” the money.

" Worsham does not indicate whether it was Anderson who officially denied her

request for sick leave, or when she learned of the decision. As noted earlier, neither party has
identified Andersons title.

” Worsham does not indicate whether she spoke with Fisher about the incident.

% The Park District does not explain what it means by “health reimbursement.”

(Answers to interrogatories, Ex. C to Def. 56.1 Resp., 9 15.)
5


some two weeks after she first failed to show up for work or to produce any documentation
suggesting that she was medically unable to do so. (Corrective Action Meeting Disposition, Ex. 10
to Saieva Aff.) An employee on FMLA leave has “no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been continuously employed.” 29
C.F.R. § 825.216(a). Worsham has not shown that the Park District's decision to discharge her for
failing to show up for work after her leave expired was unlawful. See, e.g., Morris v. |BM Global
Servs., No. 04 C 130, 2005 WL 83336, at *3(N.D. Ill. Jan. 14, 2005) (employer did not violate FMLA
by discharging employee who failed to return to work at the expiration of her 12 weeks of leave;
“When an employee returns from FMLA leave in a timely fashion, the employer must reinstate the
employee to his or her former or an equivalent position.”) (emphasis added).

Worsham argues that she refused to show up for work because the Park District failed to
offer her an equivalent position, assigning her instead to the undesirable Pietrowski Park location.
Anequivalent position under the FMLA “is one thatis virtually identical to the former position in terms
of pay, benefits, and working conditions.” Mitchell v. Dutchmen Mfg., Inc., 389 F.3d 746, 748 (7th
Cir. 2004) (citing 29 C.F.R. § 825.215(a)). It must involve the same or substantially equivalent skill,
effort, responsibility, and authority. 29C.F.R. § 825.215(a). Prior to her request for leave, Worsham
was assigned to work at the Kennedy Park pool. The court has already determined that there was
nothing discriminatory about this assignment for purposes of Title VII. Nor could the assignment
implicate the FMLA; Anderson and Fisher assigned Worsham to Kennedy Park on August 12, 2002,
more than two weeks before she requested FMLA leave on August 29, 2002.

As for the Pietrowski Park assignment, Worsham’s assertion that it is not equivalent to the
position at Kennedy Park is unavailing. Both positions have the same title, pay, and benefits, and
there is no evidence that the responsibilities differ in any substantial way. (Def. 56.1 1] 18, 19.)

Indeed, it appears that at Pietrowski Park, Worsham would have the increased responsibility she

21


Significantly, Worsham herself concedes that employees in the Pools & Beaches Department “are
assigned and transferred to various locations” depending upon the needs of the Park District. (PI.
56.1 Resp. {[ 10.) Her bald assertion that she was “terminated under false pretexts” is wholly
insufficient to defeat the Park District's summary judgment motion on her FMLA claim. See Miranda
v. Wisconsin Power & Light Co., 91 F.3d 1011, 1018 (7th Cir. 1996) (“Conclusory and generalized
assertions are not sufficient to survive a motion for summary judgment.”)

c. Breach of Contract

In the final count of her Complaint, Worsham alleges that the Park District breached an
implied employment contract by failing to bargain in good faith and to “judge plaintiff on the basis of
merit and ability” as required by the Park District's personnel policies and procedures. (Complaint
{1 19-25.) The Park District argues that this claim is premature because Worsham has not
exhausted her administrative remedies before the Park District Personnel Board. Worsham
concedes the point, agreeing that “her claim for breach of contract should not proceed until the
appeal of her termination that she filed more than a year ago is heard.” (PI. Resp., at 1.) In light of
this concession, the Park District's motion for summary judgment on the breach of contract claim
is granted.

CONCLUSION

For the reasons stated, the Park District's motion for summary judgment (Docket No. 16-1)

is granted.

ENTER:

Dated: “Waich I, 2° oS (Bepcr Wha shen ye —
REBECCA R° PALLMEYE
United States District Judge

23


Resp., at 7.) This is not entirely accurate. Worsham admits that Anderson and Fisher took
McShane into another room, yelled athim, and even threatened to call the police if he failed to calm
down. More importantly, Worsham's supervisors indicated that she had been argumentative and
disruptive in meetings on more than one occasion. (Interoffice Memorandum of 8/12/02; Def. 56.1
Resp. 7] 29.) There is no evidence that McShane was similarly disruptive more than once. See
Mora v. Chicago Tribune, 57 F. Supp. 2d 626, 635 (N.D. Ill. 1999) (to be similarly situated,
employees must have “engaged in similar misconduct giving rise to the employment action.”)
Worsham's unsupported assertion that “[o]ther” Park District employees have criticized
management during meetings is also unavailing, she has notidentified any such employees, much
less demonstrated that they engaged in similar misconduct. (PI. 56.1 27.)

Worsham next argues that the Park District subjected her to differential treatment with
respect to her medical leave by repeatedly requiring her to provide copies of medical notes not only
to Mary Saieva but also to her supervisors, and by contacting her physician on several occasions
to obtain additional documentation of her skin cancer treatment. In addition, Anderson called
Worsham several times to demand that she submit the necessary paperwork or tisk losing her job,
including one call on the day of her surgery. (P!. Resp., at 7-8.) Worsham claims that McShane
told her that when he went on medical leave, he was only required to provide the Park District with
one medical note. (/d. at 8.) The first problem with this argument is that McShane’s alleged
statement constitutes inadmissible hearsay, which is not sufficient to defeat a motion for summary
judgment. Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 713 (7th Cir. 2002) (where plaintiff
was “repeating what his wife told him, that evidence is inadmissible hearsay.”); Village of
Lincolnshire v. Illinois Dep't of Transp., No. 01 C 5974, 2002 WL 276127, at *4 (N.D. Ill. Feb. 27,
2002) (“The law in the Seventh Circuitis clear thatin response to amotion for summary judgment,

the non-moving party may not rely upon inadmissible hearsay in an affidavit or deposition to defeat

18


F. Worsham’s Termination

Worsham was scheduled to return to work on December 18, 2002. Though she had been
reassigned to work at Kennedy Park prior to her medical leave, Anderson and Fisher decided that
she should work at the Pietrowski Park pool upon her return. According to the Park District,
Anderson and Fisher placed Worsham at Pietrowski Park because there was no existing program
in place at that location and they needed a capable employee to set one up.'® (Anderson Dep., at
75; Worsham Dep., at 143; Def. 56.1 Resp. 31.)

Worsham failed to return to work on December 18, 2002, claiming that the Pietrowski Park
position was ata less desirable location farther from her home and in a more dangerous area of the
city. (Pl. 56.1131.) The Park District notes that management has the right to transfer employees
to meet the needs of the Park District. (Def. 56.1 Resp. 131.) Anderson and Fisher testified that
they staff pool locations based in part on where the employees live and where they request to work,
but also on the needs of the particular location and the skill sets and strong points of the individual
employees. (Anderson Dep., at 32; Fisher Dep., at 43.) Worsham herself concedes that
employees in the Pools & Beaches Department “are assigned and transferred to various locations
in the Park District.” (PI. 56.1 Resp. ] 10.) For example, Terry McShane, the employee who yelled
at Anderson and Fisher during the July 2002 meeting, was transferred twice in 2002, 8 and Anderson
granted Worsham’s request for a transfer to Fernwood Park in 2001. (Def. 56.1 Resp. ff 26;
Anderson Dep., at 20-21.)

On December 27, 2002, Saieva sent Worsham a certified letter informing her that the Park
District had scheduled a Corrective Action Meeting for January 6, 2003, due to her failure to return

to work after her leave expired on December 18, 2002 and her failure to “provide medical information

8 The Park District does not describe what the new program would entail.
" The Park District does not indicate the date of McShane’s two transfers.

10


docked three days pay. (Grievance Report of 8/28/02, Ex. Dto PI. 56.1, at0015; Pl. 56.1130.) She
also objected to her purported demotion to lifeguar . As support for her grievance, Worsham
attached letters from seven individuals praising her performance, including several park supervisors.
(Letters of Commendation, Ex. D to Pl. 56.1, at 0029-0035.) The parties do not indicate how
Worsham’s grievance was investigated or resolved, if at all.

E. Worsham’s Medical Leave

Worsham never started her new assignment at the Kennedy Park pool because on August
16, 2002, she underwent surgery to remove a cancerous skin lesion. (Worsham Dep., at 84;
Undated Letter from Dr. Barsky, Ex. Dto PI. 56.1, at0021.) Worsham claims that Anderson called
her athome the same day and told her that she needed to produce medical documentation within
24 hours if she wanted to keep her job. (Worsham Dep., at 84.) Worsham says that her husband
delivered the documents to the Park District the following day. (Id. at 84.) It is not clear what
documents he produced or to whom.

On August 29, 2002,'° Worsham called Park District Human Resources Manager Mary
Saieva to request FMLA leave; Saieva sent her a letter the next day granting the request and
describing the medical documentation required to support the leave. (Saieva Aff. Mf 1, 2; Letter from
Saieva to Worsham of 8/30/02, Ex. 1 to Saieva Aff.) Worsham completed the FMLA Medical
Certificate and Acknowledgment of Responsibilities forms on September 3, 2002, and forwarded

them to Saieva. (Forms, Ex. 2 to Saieva Aff.) She also gave Saieva a note from her physician, Dr.

“ Worsham’'s grievance also confusingly refers to a transfer to Pietrowski Park. As

explained below, that transfer did not occur until December 18, 2002, many months after Worsham
filed the grievance on August 28, 2002. If she was aware in August that the Park District would
transfer her in December, she has not explained how she acquired this information.

6 The parties’ Local Rule 56.1 submissions indicate that Worsham requested FMLA
leave on August 10, 2002 (Def. 56.1 {| 14; PI. 56.1 Resp. {| 14), but this is inconsistent with the
record evidence. (See Saieva Aff. 11.) Indeed, Worsham was still at the San Diego conference
on August 10 and did not qualify for FMLA leave at that time.

7


Cc. Worsham’s Reassignment

Effective August 12, 2002, Worsham was reassigned to work exclusively at the Kennedy
Park pool. (Pl. 56.1 | 29.) Worsham views the reassignment as a demotion to the position of
lifeguard, but the Park District notes that her title remained Natatorium Instructor and that she
earned the same rate of pay. (/d.; Def. 56.1 Resp. 29; Def. 56.1 11 18, 19.) Anderson and Fisher
decided to transfer Worsham because she repeatedly behaved unprofessionally in voicing her
opinions during staff meetings, and because she “wasn't supervising her locations . . ., being
respectful and polite to her co-workers,” or fulfilling her job responsibilities concerning “coverage for
safety.” (Anderson Dep., at62; Fisher Dep., at61, 63; Def. 56.1 Resp. 129.) Anderson and Fisher
notified Worsham of their decision by memo dated August 12, 2002. The memo confirms that the
reassignment related to Worsham's “argu[ing] and challeng[ing] management's decisions in
meetings” and “failling] to perform [her] duties and ask[ing] management to do them for [her]
instead.” (Interoffice Memo of 8/12/02, Ex. D to Pl. 56.1, at 0014.)
D. Worsham’s Union Grievance

As noted, Worsham never heard back from union tepresentative Keith Sorensen when she
spoke to him about her grievance request in July 2002. She finally called him in late August 2002
and he told her that he had spoken to an unidentified individual from the union and that she did not
have grounds to file a grievance. Unhappy with this response, Worsham called the union herself.
Union representative Marilyn Feeny informed Worsham that Sorensen had never contacted the
union about filing a grievance on her behalf and, “[w]ithin one hour,” Feeny was at Worsham’s house
to help her do so. (PI. 56.1 | 28; Worsham Dep., at 47-48.)

Worsham filed her grievance on August 28, 2002, complaining of Anderson's unprofessional
comments to her at the July 2002 pool supervisors meeting, and challenging the Park District's

decision to deny her request for sick leave for August 7 to 11, 2002, which resulted in her being


a motion for summary judgment.”) Moreover, Worsham has not provided any details enabling a
conclusion that McShane’s medical leave was comparable to her own.”*

3. Pretext

Having determined that Worsham failed to establish a prima facie case of sex discrimination,
the court need not consider whether the Park District's explanation for her transfer to the Kennedy
Park pool—her repeated arguments with management during meetings and her failure to perform
her job duties —is a pretext for unlawful discrimination. The court notes, however, that Worsham’s
only argumentin this regard is that she received seven letters of commendation from various park
supervisors and patrons. (PI. Resp., at8.) The fact that some individuals, none of whom appear
to have had any supervisory authority over Worsham, believed that she was performing well is not
sufficient to demonstrate that the actual decisionmakers, Anderson and Fisher, transferred her for
discriminatory reasons. See, e.g., Abioye v. Sundstrand Corp., 164 F.3d 364, 369 (7th Cir. 1998)
(affidavits from plaintiff's mentor and previous supervisor did not establish that employer's decision
to discharge plaintiff for poor performance was pretextual). At most, Worsham has raised a
question as to “the overall correctness or desirability of the reasons proffered [which] is not relevant
to the determination of pretext.” Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999).
See also Mills v. Health Care Serv. Corp., 171 F.3d 450, 459 (7th Cir. 1999) (to show pretext,
plaintiff must produce evidence that evaluation of his performance was dishonest, not merely
mistaken). The Park District’s motion for summary judgment on Worsham's Title VI! claim is

granted.

3 Inher Local Rule 56.1 statement, Worsham also suggests that Anderson and Fisher

unfairly denied her request for leave to attend the San Diego conference in August 2002. As noted,
however, Anderson and Fisher similarly denied requests submitted by Eric Bushonville (male) and
Ann Johnstone (female). As for Worsham's objection that unlike Jerry Gavin, she had to submit
medical documentation upon her return from that conference, the court notes that unlike Worsham,
Gavin had permission to attend the conference.

19


On October 28, 2002, Worsham completed a Leave Request Form asking to use her sick
time to remain off work until December 18, 2002. (Ex. 4 to Saieva Aff.) When Worsham spoke with
Saieva on the telephone on November 21, 2002, however, Saieva told Worsham that she still
needed to file a leave request with the Human Resources department if she planned to be off work
until December 18, 2002. Worsham did not understand why her existing paperwork was insufficient
and wrote a letter to Saieva that same day expressing her confusion. Indeed, the record reflects
that Worsham had submitted a timely Leave Request Form on October 24, 2002. (Saieva Aff. 19]
9, 10; Letter from Saieva to Worsham of 11/25/02, Ex. 8 to Saieva Aff., Leave Request Form of
10/28/02, Ex. 4 to Saieva Aff.) In any event, itis undisputed that Worsham was allowed to remain
off work on unpaid leave from November 21 until December 18, 2002. (Def. 56.1 If] 15, 16.)

Worsham claims that throughout her medical leave, she was forced to provide Saieva with
medical documentation of her condition on 10 or 12 separate occasions, and was even required to
give copies of her medical notes to Anderson and Fisher. (PI. 56.1 Resp. {| 14; Worsham Dep., at
82-85; Leave Request Form of 10/28/02, Ex. Dto PI. 56.1, at 0002.) In addition, Worsham says that
someone from the Park District contacted Dr. Barsky on multiple occasions to obtain notes
confirming her skin cancer treatment, and that she herself received approximately four telephone
calls from Anderson stating that the notes she had submitted were “no good” and that she needed
to provide additional documentation or risk termination. (Id.) According to Worsham, Terry
McShane told her that he only had to produce one medical note to the Park District during his

medical leave.” (PI. 56.1 J] 32.)

7 Worsham does not indicate when McShane told her about his medical leave. Nor

does she state when the leave occurred, the basis for that leave, or the length of time he was away
from work.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEBBIE WORSHAM, )
Plaintiff, }
v. ; No. 03 C 1467
CHICAGO PARK DISTRICT, } Judge Rebecca R. Pallmeyer
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff Debbie Worsham filed suit against the Chicago Park District (the “Park District”)
alleging sex discrimination in violation of Title Vilof the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.; violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; and
breach of an implied employment contract. Specifically, Worsham claims that the Park District
demoted her to a less desirable position because she voiced her opinion at a staff meeting, and
subjected her to different terms and conditions of employment than similarly situated male
employees. Worsham also claims that the Park District failed to offer her the same or equivalent
position upon her return from FMLA leave, ultimately resulting in her discharge. Allofthese actions,
Worsham alleges, reflect the Park District's failure to bargain in good faith in violation of its written
policies and procedures. The Park District has moved for summary judgment on all of Wersham’s
claims. For the reasons set forth below, the motion is granted.

BACKGROUND

Worsham began working for the Park District as a lifeguard in the Pools & Beaches

Departmentin 1996. (Def. 56.1] 6.)' She was classified as a “career service” employee under the

Chicago Park District Act and was thus entitled to a hearing before the Park District Personnel

1 Defendant's 56.1 Statement is cited as “Def. 56.19] __.”


DISCUSSION

Summary judgmentis proper when “the pleadings, depositions, answers tointerrogatories,
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). In determining whether there is a genuine issue of fact, the court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th
Cir. 2001). The court's function in ruling on a motion for summary judgment is not to weigh the
evidence, but rather to determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Where factual matters are in dispute, the court is required to credit the nonmovant's version of
events. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 802 (7th Cir. 2000). The nonmoving party
must do more, however, than demonstrate a factual dispute; she must offer evidence sufficient to
support a verdict in her favor. Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001).
Employment discrimination cases are inherently fact-intensive, but the court is not required to
“scour the record” in an effort to assist the plaintiff in avoiding summary judgment. Greer v. Board
of Ed. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001).

The Park District argues that Worsham cannot set forth a prima facie case of sex
discrimination or demonstrate that the position she was offered upon her return from FMLA leave
was not the same or equivalent to her previous position. The Park District also argues that
Worsham’s claim for breach of contract is premature because she has not yet exhausted her
administrative remedies. The court considers each argument in turn.

A. Sex Discrimination
Worsham may establish sex discrimination using either the direct or indirect method of

proof. Under the direct method, Worsham must either present direct evidence which, if believed

12


requested."”° (Letter from Saieva to Worsham of 12/27/03, Ex. 9 to Saieva Aff.) It is not clear
whether Worsham attended the Corrective Action Meeting, but the Park District terminated her
employment on January 6, 2003 for (1) failing to return to work; (2) failing to “comply with requests
for proper documentation [or] utilize proper procedures for requesting an extension on the previously
granted FMLA leave”; and (3) failing to return from a “Leave of Absence Without Pay” pursuant to
Section 23.1 of the collective bargaining agreement. (Corrective Action Meeting Disposition, Ex. 10
to Saieva Aff.; Def. 56.1 120.) The parties do not indicate who made the final decision to discharge
Worsham, but the Corrective Action Meeting Disposition setting forth the reasons for the discharge
was signed by Marilyn James from Human Resources. (/d.) Worsham appealed the decision to
the Park District Personnel Board on January 8, 2003 and as of May 10, 2004 was still awaiting a
decision in that proceeding. (Appeal of Termination and Request for Appeal Hearing, Ex. 11 to
Saieva Aff.; Def. 56.1 {| 21; Pl. 56.1 Resp. ¥ 21.)
G. Worsham’s Lawsuit

Worsham filed a charge of discrimination with the Equal Employment Opportunity
Commission on October 4, 2002 alleging that she was transferred to Kennedy Park on the basis
of her sex in violation of Title VII. (Complaint 6.) She received a right to sue letter on November
30, 2002 and, on February 27, 2003, she filed this lawsuit alleging that the Park District (1)
transferred and demoted her because of her sex and treated her less favorably than similarly
situated men in violation of Title VII; (2) failed to offer her the same or equivalent position upon her
return from FMLA leave; and (3) breached an implied employment contract by failing to bargain in
good faith and to “judge plaintiff on the basis of merit and ability” as required by the Park District's
personnel policies and procedures. (/d. {| 7-33.) The Park District seeks summary judgment on

all three claims.

20 Itis not clear what medical information Worsham failed to provide.

1


Gary J. Barsky, stating that she would be under his care until October 14, 2002. (Undated Note from
Dr. Barsky, Ex. D to Pl. 56.1, at 0021.)

On September 9, 2002, Saieva sent Worsham a letter confirming that she was granted paid
FMLA leave until October 14, 2002. Saieva indicated that Worsham would need to submit additional
medical documentation to extend the duration of her leave, and that her full 12 weeks of paid leave
would be exhausted on November 21, 2002. Saieva noted that if Worsham needed to be off work
beyond November 21, she would be required to use her available sick, personal, vacation, and “f-
time.” (Letter from Saieva to Worsham of 9/9/02, Ex. 3 to Saieva Aff; Def. 56.1 1] 15, 16.)

On October 9, 2002, Dr. Barsky wrote another note stating that Worsham needed to be
“monitored for the next 90 days.” (Dr. Barsky Note of 10/9/02, Ex. D to PI. 56.1, at 0022.) Saieva
received the note on October 15, 2002, alongwith a voice mail message from Worsham requesting
an additional 90 days of leave. Saieva left Worsham a voice mail message (presumably the same
day) confirming that she had received Dr. Barsky’s note and reminding Worsham that she would
need to request a leave of absence for the days not covered by her FMLA leave. (Saieva Aff. 76.)
On October 21, 2002, Saieva spoke with Worsham on the telephone and again stated that
Worsham needed to file a leave request to cover any leave taken after November 21, 2002. (/d. 1]
7.) The nextday, Dr. Barsky wrote a third note officially stating that Worsham would not be released
to return to work until December 18, 2002. (Dr. Barsky Note of 10/22/02, Ex D to PI. 56.1, at 0023.)
Two days later on October 24, 2002, Saieva sent Worsham another letter reminding her that her
FMLA leave would be exhausted as of November 21, 2002, and that she would need to submit a
Leave Request Form to extend her absence past that date. (Saieva Aff. [8; Letter from Saieva to

Worsham of 10/24/02, Ex. 6 to Saieva Aff.)

6 The parties do not explain the term “f-time.”

8


desired because Anderson and Fisher wanted her to set up a brand new program there. (Anderson
Dep., at 75; Worsham Dep., at 143; Def. 56.1 Resp. 131.) Worsham may have preferred working
closer to home in what she believed to be a nicer neighborhood, but these are “de minimis or
intangible, unmeasurable aspects of the job” that are insufficient to demonstrate that the Pietrowski
Park and Kennedy Park positions are not equivalent. See 29 C.F.R. § 825.215(f). Significantly,
Worsham has not indicated how much farther she had to travel to get to Pietrowski Park compared
with Kennedy Park, nor has she explained what made the Pietrowski Park location “more
dangerous.” In addition, Worsham has not presented any evidence that her working conditions at
Pietrowski Park would be substantially different from those at Kennedy Park, or that the Pietrowski
Park position involved different skill, effort, or authority.

Inany event, regardiess of whether the Park District offered Worsham an equivalent position,
her FMLA claim fails because there is no evidence that the Pietrowski Park transfer was in any way
connected to her FMLA leave. As noted, the right to reinstatement is not absolute, and “[a]n
employee is not afforded greater rights than he would otherwise have merely because he takes
FMLA leave.” Phelan v. City of Chicago, 347 F.3d 679, 683 (7th Cir. 2003). Anderson and Fisher
testified that they staff pool locations based in part on where the employees live and where they
request to work, but also on the needs of the particular location and the skill sets and strong points
of the individual employees. (Anderson Dep., at 32; Fisher Dep., at 43.) They placed Worsham at
Pietrowski Park because there was no existing program in place at that location and they needed
a capable employee to set one up. (Def. 56.1 Resp. 7 34; Anderson Dep., at 75; Worsham Dep.,
at 143.)

Worsham has not presented any evidence suggesting that had she nottaken FMLA leave,
she would not have been transferred to Pietrowski Park. See Kohls, 259 F.3d at 805 (employee

“must prove that [her employer] would not have discharged her had she not taken FMLA leave.”)

22


crew’ on the job at that time for safety reasons. (Fisher Dep., at 52; Anderson Dep., at 84.) Itis
undisputed that the Park District did not pay for any ofits employees to attend the conference. (Def.
56.1 J 12.)

Though Worsham did not have leave from the Park District to attend the August 2002”
conference, she went anyway, explaining that she wanted to geta second opinion from a physician
she knew in San Diego concerning a skin cancer diagnosis she had received, and “figured that it
was a twofold proposition.”® (Worsham Dep., at 49-50; Def. 56.1 J 11; Pl. 56.1 Resp. {| 11 a
Worsham requested sick leave for the dates of the conference (August 7 to 11, 2002) and was
informed that she had to provide medical documentation upon her return."° (PI. 56.1 Resp. 711.)
Worsham claims that Jerry Gavin told her that he was not required to produce any documentation
in order to attend the conference, but as noted, the Park District granted him leave to attend. (PI.
56.1 J] 22.)

When Worsham returned from San Diego, she gave Anderson a note from Dr. Peter G.
Wernicki stating that she had been under his care from August 7 to 11, 2002 and was released to
return to work on August 12, 2002. She claims that Anderson told her that the note was “no good”
and that she would “pay dearly,” but the record citations do not support this assertion. (PI. 56.1

Resp. {| 11; Doctor's Note of 8/11/02, Ex. D to PI. 56.1 Resp., at 020; Grievance Report of 8/28/02,

7 The parties have submitted conflicting evidence regarding the date of the conference.

Their Local Rule 56.1 submissions identify the date as March 2002; their supporting memoranda
state that the conference occurred in August 2002. After reviewing the record evidence, the court
is satisfied that the conference took place in August. As discussed below, it is undisputed that
Worsham requested sick leave in August 2002, and that the request covered the dates of the San
Diego conference.

8 The record does not reflect when Worsham was first diagnosed with skin cancer.

8 Plaintiff's Local Rule 56.1(b) Response to Defendant's Statement of Undisputed

Material Facts is cited as “PI. 56.1 Resp. ]__.”

‘0 The record does not indicate who told Worsham to provide the documentation.

4


On appeal to the Seventh Circuit, the plaintiff admitted that the two positions held the same
rank within the police department and received the same pay and benefits, but she nevertheless
argued that the transfer effectively was a demotion. The court noted that there are three categories
of materially adverse employment actions for purposes of a Title VII claim:

(1) cases in which the employee’s compensation, fringe benefits, or other financial

terms of employment are diminished, including termination; (2) cases in which a

nominally lateral transfer with no change in financial terms significantly reduces the

employee's career prospects by preventing her from using her skills and experience,

so that the skills are likely to atrophy and her career is likely to be stunted; and (3)

cases in which the employee is not moved to a differentjob or the skill requirements

of her present job altered, but the conditions in which she works are changed ina

way that subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise

significantly negative alteration in her workplace environment.

Id. at911. Cases in the second category involve a future, and nota presentharm. In addition, “[a]
transfer involving no reduction in pay and no more than a minor change in working conditions will
notdo.” /d. at 911-12 (quoting Hermreiter v. Chicago Housing Authority, 315 F.3d 742, 744 (7th Cir.
2002)).

The plaintiff claimed that the transfer negatively affected her chances of promotion by moving
her to aless prestigious position; marred her reputation “by implicitly accepting the rumor, despite
the evidence that [she] never had the relationship in question’; reduced her opportunities for
overtime pay and her supervisory responsibilities; and deprived her of certain job perks, including
acellular telephone, pager, vehicle, parking space, and weekends and holidays off. /d. at911-12.
The court first held that the plaintiff's mere speculation that sergeants in the Narcotics Unit are more
likely to be promoted than sergeants in the districts was insufficient to establish that her lateral
transfer constituted an adverse employment action. The court also found that the plaintiff

“presented no evidence that the transfer, the employment action at issue, rather than the rumor

itself, caused th[e] harm” to her reputation. /d. at 912.

15


Like the plaintiff in O’Neal, Worsham had supervisory responsibilities both before and after
the transfer. Her preference for supervising four pools rather than one is insufficient to demonstrate
that the transfer constituted an adverse employment action for purposes of Title VII. O'Neal, 392
F.3d at 913. See also Place v. Abbott Labs., 215 F.3d 803, 810 (7th Cir. 2000) (rejecting the
plaintiff's argument that being “moved from an interesting job she liked that involved overseeing
several other people to a boring job she didn’t like and that lacked any supervisory duties” was an
adverse employment action).

Worsham does not argue that her transfer to Pietrowski Park in December 2002 constituted
unlawful sex discrimination, but the court notes that this second transfer also does not qualify as
an adverse employment action. The Pietrowski Park and Kennedy Park positions both have the
same title, pay, and benefits, and there is no evidence that the responsibilities differ in any
substantial way such that her career was likely to be stunted. (Def. 56.1 {] 18, 19.) Worsham
claims that the Pietrowski Park pool is located further from her home in a “more dangerous”
neighborhood, but she has not provided any information regarding how much further she had to
travel or what made the neighborhood more dangerous than Kennedy Park. Once again,
Worsham’s preference for working at Kennedy Parkis insufficient to demonstrate that she suffered
an adverse employment action. O’Neal, 392 F.3d at 913, Place, 215 F.3d at 810.

2. Similarly Situated Employees

Even if Worsham’s transfers were adverse employment actions, she has notidentified any
similarly situated male employees who received more favorable treatment. As noted, Worsham
argues that after voicing her opinions ata July 2002 pool supervisors meeting, she was transferred
to a less desirable position at the Kennedy Park pool and charged with failing to perform her job
duties. She claims that a male employee, Terry McShane, similarly spoke out at that meeting and

even cursed at his supervisors, but he was never reprimanded, disciplined, or transferred. (PI.

17


door hit you inthe ass... . That goes for everyone in this room, including myself.” (Def. 56.1 Resp.
1.25; Anderson Dep., at 82.)*

Worsham claims that at the same meeting, Terry McShane (male) expressed discontent
with the way the junior guard program? was being run and yelled expletives at Anderson and another
Park District supervisor, Eric Fisher (exacttitle unknown). Worsham contends that McShane was
never reprimanded or disciplined as a result of this outburst, but her own deposition testimony
reflects that Anderson and Fisher took McShane to another room where they yelled at him and
threatened to call the police if he did not calm down. (PI. 56.126; Def. 56.1 Resp. 26; Worsham
Dep., at 30.)

Shortly after the July 2002 meeting, Worsham spoke with union representative Keith
Sorensen about filing a grievance regarding Anderson's comment. Sorensen said thathe would talk
to the union and get back to her, but he never did. (/d. | 28; Worsham Dep., at 47-48.)

B. The San Diego Conference

Sometime prior to August 2002, Worsham requested leave to attend the National Lifeguard
Championship in San Diego, California. Anderson and Fisher, who were together responsible for
determining who was allowed to attend the conference, denied her request, as well as requests
submitted by employees Eric Bushonville and Ann Johnstone. Anderson and Fisher granted leave,
however, to three other employees, Louis Silva, Erin Joyce, and Jerry Gavin.® (Def. 56.1111; Pl.
56.1922; Def. 56.1 Resp. 922.) Anderson and Fisher both testified that they did not grant requests

submitted by supervisors because the Park Districtis busiest during the summer and needs its “top

4 Defendant's Response to Plaintiffs Local 56.1 (b)(3)(B) Statement of Additional Facts
is cited as “Def. 56.1 Resp. 7__.”

5 The parties do not provide any details regarding the junior guard program.

6 The parties do not indicate the positions held by any of these employees.

3


Board prior to termination. (/d. 18.) See also 70 ILCS 1505/16a(c)(4)(J). Worsham was also a
member of the Service Employees International Union, Local 73, which hada collective bargaining
agreement with the Park District.

In November 2000, Worsham was promoted to the position of Natatorium Instructor, also
inthe Pools & Beaches Department. (/d. 17, 9.) The parties do not explain how Worsham’s job
duties changed following the promotion, nor do they describe the general responsibilities of a
Natatorium Instructor. By at least 2002, however, Worsham was supervising as many as four Park
District pool locations, including, at various times, Fernwood Park, Kennedy Park, Mount Greenwood
Park, Ridge Park, and the Chicago High School for Agricultural Sciences.? (Anderson Dep., at 62;
Worsham Dep., at 20-21, 147.)

A. The July 2002 Meeting

In July 2002, Worsham attended a pool supervisors meeting during which Park District
supervisor Jamie Anderson (exact title unknown) criticized the employees for not doing their jobs.
Worsham objected to Anderson's comments and stated that she was “out there for approximately
ten hours a day doing my job.” (PI. 56.1 25; Worsham Dep., at 39.)* According to Worsham,
Anderson responded by pointing a finger at her and warning, “if you don’t like what | have to say,
don't let the door hit you in the ass.” (/d.; Worsham Dep., at 39.) Anderson claims that Worsham
has taken this statement out of context. He recalls making a similar comment in response to
general complaints from the pool supervisors regarding their paperwork requirements, and not to

Worsham in particular: “Those are the directives. . . . Ifpeople are unhappy, you should not letthe

2 It appears that Worsham also may have supervised the West Pullman Park pool.

(See Letter of Commendation, Ex. D to Pl. 56.1, at0030.) The parties do not indicate exactly when
Worsham was responsible for supervising each particular pool.

5 Plaintiff's statement of additional facts is cited as “PI. 56.1 {] _"

2


by the finder of fact, “will prove the particular fact in question without reliance upon inference or
presumption,” or circumstantial evidence that establishes a “convincing mosaic” of discrimination.
Volovsek v. Wisconsin Dep't of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 689
(7th Cir. 2003), Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003). Worsham does not
claim to have any evidence of discrimination supporting the direct method of proof and must
therefore proceed under the familiar McDonnell Douglas burden-shifting analysis. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that approach, she must first establish a
prima facie case of discrimination by proving that (1) she is amember of a protected class; (2) she
was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) a
similarly situated employee notin the protected class was treated more favorably. Wyninger v. New
Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004). If Worsham succeeds in making outa prima
facie case, the Park District must articulate a legitimate, non-discriminatory explanation for the
adverse employment action. If it does so, the Park District “would then be entitled to summary
judgment unless [Worsham] can rebut this explanation with evidence that it is pretextual.” /d. at
978-79 (citing Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001)).

The Park District claims that Worsham cannot establish a prima facie case of sex
discrimination because she did not suffer an adverse employment action and cannot identify any
similarly situated male employees who were treated more favorably. The Park District also argues
that Worsham cannot demonstrate that its stated reason for her transfer is a pretext for unlawful
sex discrimination.

1. Adverse Employment Action

Worsham claims that she suffered an adverse employment action in August 2002 when her
supervisors transferred her to work at the Kennedy Park pool. Worsham acknowledges that she

did not experience any reduction in pay or benefits, and it appears that she retained the same job

13


As for the reduced supervisory responsibilities and job perks, the court noted that “[bly
definition, any lateral job transfer will resultin changes to an employee’s job responsibilities and work
conditions. To sustain a federal employment discrimination suit, a plaintiff must show something
more than the ordinary difficulties associated with a job transfer.” Id. at913. As an administrative
sergeant, the plaintiff scheduled twenty security employees and supervised employees on the night
shift; as a beat sergeant, the plaintiff oversaw sixteen officers responding to calls in the field. Id. at
912. Inthe court's view, the plaintiff had significant supervisory responsibilities in both positions and
her “purely subjective preference for one position over another” did not “justify trundling out the heavy
artillery of federal antidiscrimination law.” Id. at 913 (quoting Hermreiter, 315 F.3d at 745).

Inthis case, Worsham complains only that after her transfer to the Kennedy Park pool, she
was no longer responsible for supervising more than one pool location. (PI. Resp., at7.) Worsham
has not suggested that her transfer to the Kennedy Park pool significantly reduced her career
prospects such that her skills were likely to atrophy. Compare Hoffman-Dombrowski, 254 F.3d at
649-51 (plaintiff raised genuine issue offact as to whether she suffered adverse employment action
where, after a purportedly lateral transfer, she went from “preparing the mutual budget and payroll
and staffing hundreds of clerks to scheduling one part time and four full time clerks,” and her
“biggest responsibility [became] emptying lottery machines three times a week.”) Nor has she
presented evidence that the Kennedy Park position is so obviously inferior that individuals would
universally prefer Worsham's previous assignment. Compare Tart v. Iinois Power Co., 366 F.3d
461 (7th Cir. 2004) (transfer constituted an adverse employment action where “[flew workers in
today’s job market would choose to give up access to computers so they could spend the winter
ontrenchers and with shovels, digging the holes that made way for other workers to complete the

skilled part of the labor.”)

16