Plaintiff arguably could have, but did not advance: that by depriving her of unpaid leave, the
Hospital prevented her from recovering within twelve weeks of her June 2000 injury. Importantly,
Plaintiff herself has never suggested that, had she taken twelve weeks without pay, rather than
returning to a light duty assignment, she would have recovered fully from her wrist injury. Nor does
any evidence in the record support such a theory. Neither side has offered any evidence
concerning the circumstances in which she was initially transferred to light duty in July, but the
record does contain her doctor's recommendation that she begin light duty work two weeks after
her surgery in September. (Semba Progress Notes, Ex. 14 to Pl.’s 56.1 Stmt., at 6.) The doctor
did not state then, nor has Plaintiff offered any expert opinion now, that the light duty work she
performed prevented or delayed the healing process. Nor is there any evidence that Plaintiff
herself ever expressed unwillingness or inability to perform the light duty assignment.

Plaintiff's final argument is that Defendant’s lack of notice and guidance in its employee
handbook, policies, poster, and brochure that the TLD program was voluntary and in place of FMLA
leave “constitutes a willful interference and restraint of plaintiff's FMLA rights.” (PI.’s Mem., at 11.)
Plaintiff concedes that the only statutory notice obligation is that employers post a Department of
Labor poster, an obligation that she admits the Hospital met. (Pl.’s Mem., at 11, citing 29 C.F.R.
§ 825.300(a); see also 29 U.S.C. § 2619.) FMLA-covered employers are further required to include
information on FMLA rights in any employment handbooks or notices. 29 C.F.R. § 825.301(a)(1).
Defendant appears to have fulfilled these additional notice requirements, as well. First, the Hospital
included information on FMLA rights in its Employee Handbook. (Ex. 8 to Pl.’s 56.1 Stmt.) Second,
TLD policy notices discuss FMLA job protection. (Ex. 9 to Pl.'s 56.1 Stmt.) Third, the Hospital
Leave of Absence brochure outlines the FMLA and who is eligible. (Ex. 11 to Pl.'’s 56.1 Stmt.)
While none of these resources explain specifically that TLD work is in lieu of FMLA leave, the court
concludes that the absence of such an explanation does not violate this regulation. Plaintiff also
admits that Hospital staff explained the TLD program to her. (Plaintiff Dep., at 50-52.) Plaintiff has

13



Defendant contends that employees are given a choice between FMLA leave and TLD, and
inevitably choose light duty because it allows them to continue making money while they recover
from their injury/iliness. (Def.’s Resp. {| 29.) Defendant has provided no evidence to support this
contention besides the statement of William Cleary, Director of Human Resources at the Hospital,
who declared that an employee in the Plaintiff's position “has a choice between temporary limited
duty . .. and a leave of absence . . . one or the other.” (/d.; Cleary Dep., at 33.) In asserting that
employees are given a choice, Cleary does not specify how employees were expected to know
about this choice, and does not state that Plaintiff herself was given full information about the two
options. There is also no evidence demonstrating how many employees were offered a choice
between FMLA leave and TLD, and voluntarily chose light duty.

As a result of her wrist injury, Plaintiff underwent surgery on September 8, 2000 and was
again forced to miss at least three days of work. (PI.’s 56.1 Stmt. 15, 10.) At the time of both the
June accident and the September surgery, Plaintiff had worked more than 1,250 hours in the
preceding twelve-month period. (/d. I] 7-8.) When sufficiently recovered from the surgery, Plaintiff
returned to TLD work in the Human Resources Department until she was placed on job search
leave of absence in November of 2000. (Def.’s 56.1 4 14.) Plaintiff admits that she never
requested any other leave of absence and never requested FMLA leave. (/d. {[ 23; Plaintiff Dep.,
at 69.)

\n amemorandum dated August 28, 2000, Dorothy Morande informed Plaintiff that her job
protection would end on September 20, 2000 and that her nursing position might be filled. (/d.
1 10, Ex. 5 to Plaintiff Dep.) Plaintiff admits that she was aware throughout the fall of 2000 that she
was expected to look for alternate employment at the Hospital. (Def.’s 56.1 11; Plaintiff Dep., at
55-56.) Plaintiff continued to work in the TLD program through the fail until November 14, when
she was sent another memorandum from Dorothy Morande informing her that, because she had
been cleared for work effective on November 20, she would need to start looking for another job

4


1990), cited by Plaintiff, is not to the contrary. Marin observed that the employer's persistent and
well-documented attempts to return the plaintiff to work negated any retaliatory motivation; it does
not suggest that the absence of such efforts establishes that the employer was in fact motivated
to retaliate. Nor does the fact that the Hospital failed to advise her of available positions establish
retaliatory motive; in the case she cites, Hugo v. Tomaszewski, 155 Ill. App. 3d 906, 508 N.E.2d
1139 (Sth Dist. 1987), the plaintiff, a 23-year employee, was discharged when he attempted to
return to work with certain restrictions, six months after suffering a work-related injury for which he
recovered workers’ compensation benefits. The employer asserted that its decision was motivated
by loss of business, but the court noted that the employer filled another position soon afterwards,
without offering the position to plaintiff. /d. at 910, 508 N.E.2d at 1142. Plaintiff here offers no
evidence of a specific opening for which she was qualified, nor did the Hospital suggest that a
decline in business was the reason for her discharge.

Plaintiff suggests that Defendant reneged on a promise to restore her to her previous
position, and cites Jackson v. Bunge Corp., 40 F.3d 239, 243 (7th Cir. 1994), where the employer
promised to rehire the plaintiff if she produced a doctor's note, but then reneged, allegedly in
retaliation for the plaintiff having filed a worker's compensation claim. Plaintiff asserts that Mr.
Cleary told her she could come back to work (PI.'s 56.1 Stmt. {] 18; Plaintiff Dep., at 60-61); she
conceded, however, that she understood what he meant: that if a job opened up she might be
rehired. (Plaintiff Dep., at 61.) Indeed, Mr. Cleary testified that Plaintiff was “eligible for rehire at
any time,” (Cleary Dep., at 69), and at oral argument on this motion, counsel for the Hospital
confirmed that Plaintiff remains now eligible to return to work for any position for which she

qualifies. Nor has Plaintiff offered any evidence connecting Mr. Cleary’s alleged broken promise

4 {f Plaintiff had prevailed on her claim that her termination was uniawful, the

Hospital's stated willingness to rehire her might well defeat any claim for lost pay for any date after
a position for which she qualifies became available.

17



of the need for FMLA leave, the employee does not have to mention the FMLA or demand its
benefits; the employee can even be completely ignorant of the Act. 29 C.F.R. § 825.208(2); Byrne
v. Avon Prods., Inc., 328 F.3d 379, 382 (7th Cir.), cert. denied, 124 S.Ct. 327 (2003). When an
employee provides notice that FMLA leave is needed, the employer is required to investigate
further if it needs additional information to determine if such leave is appropriate. 29 C.F.R.
§§ 825.208(a), 825.303(b); Stoops, 141 F.3d at 312. Plaintiff argues that Defendant was put on
notice of the potential need for FMLA leave when Plaintiff informed the Hospital of her need for time
off following both the June 2000 wrist injury and the September 2000 surgery. (PI.’s Mem., at 6-7.)
She further claims that this information was sufficient to trigger an investigation by Defendant into
the need for FMLA leave, and notes that department supervisors are expected to tell employees
that they may qualify for FMLA leave if advised of a potential FMLA-qualifying event. (/d. at 7;
Cleary Dep., at 11-12.) Plaintiff finally notes that Defendant's policy clearly states that employees
can be placed on leave even if they do not explicitly ask for it. (Pl.’s Mem., at 7.)

In Plaintiff's view, these facts establish that Defendant violated the FMLA in two ways. First,
Defendant denied Plaintiff FMLA leave following her injury. Alternatively, Plaintiff argues that she
was coerced into accepting a limited duty assignment in lieu of FMLA leave.

The first of these arguments requires little discussion. In support of her notion that
Defendant willfully denied her FMLA leave, Plaintiff merely recounts the argument that she put the
Defendant on notice of the need for leave and that such notice was sufficient to trigger an
investigation by Defendant. (PI.’s Mem., at 7-9.) She does not suggest that Defendant ever
intentionally denied a request for FMLA leave, and she admitted in her deposition that she never
made a request for leave. (Plaintiff Dep., at 69.) Plaintiff also has not asserted that she was
denied time off to recover from her June wrist injury and September surgery. Her affidavit merely
states that after both the accident and the surgery she “was incapacitated and unable to work for
more than three consecutive calendar days, and could not perform the essential functions of my

9



work accident. (Pl.’s 56.1 Stmt. j 35; Def.’s 56.1 16.) Mr. Cleary claims that the Hospital did not
receive notice of the application until December 8, 2000. (Def.’s 56.1 | 16; Cleary Decl. 7.) As
a result of the application, on September 18, 2001, Plaintiff received a settlement on the worker's
compensation claim of $7,449, after deduction of attorney’s fees. (Def.'s 56.1] 17; Plaintiff Dep.,
at 67.) Plaintiff alleges her termination was, at least in part, retaliation for having filed this claim.
(Compl. J] 13.)

In her deposition, Plaintiff's stated reasons for suing the Hospital under the FMLA are, “I
believe if | had that protection [FMLA job protection], | would have my job. My job would have been
secured.” (Def.’s 56.1 {| 23; Plaintiff Dep., at 69.) Plaintiff admits that she never specifically
requested FMLA leave, but does contend that she asked for time off to recover from both the June
accident and the September surgery. (Plaintiff Dep., at 69; Pl.’s 56.1 Stmt. J] 13-14.) Defendant
denies that Plaintiff ever asked for “leave,” noting that she was off work for just three days following
the wrist injury. (Def.’s Resp. fi] 13-14.) in her affidavit, Plaintiff also contends that Mr. Cleary told
her she could come back to work, and that it was her understanding she would be returned to her
nursing job after she was released to full work by her doctor. (Plaintiff Aff. 9] 15, 17.) Defendant
argues that Plaintiff was fully aware that her nursing job would be filled after September 20. (Def.'s
Resp. 7.17.) Plaintiff finally contends that department supervisors at the Hospital are trained to tell
an employee that she may be eligible for FMLA leave if advised by the employee of a potential
FMLA qualifying event, but that her own supervisors failed to advise Plaintiff of her FMLA eligibility.
(Pl.’s 56.1 Stmt. J 23; Cleary Dep., at 10-11.) According to Defendant, the Hospital does not
actively seek out FMLA-eligible individuals, but supervisors are instructed “under family medical
leave that if they are advised by an employee that the employee let’s say has an. .. illness, then
the supervisors are trained to say you may be eligible for family medical leave.” (Def.’s Resp. [ 23;
Cleary Dep., at 11-12.) Defendant does not contend that this policy was adhered to in this case,
but argues that the fact is immaterial. (Def.’s Resp. ] 23.)

6


in the Hospital on November 21. (Def.’s 56.1 {[ 12; Ex. 6 to Plaintiff Dep.) The letter also advised
her that if she were unable to find a new position by December 15, her employment with the
hospital would cease. (Def.’s 56.1 {| 13; Ex. 6 to Plaintiff Dep.) Because Plaintiff's original nursing
job had been filled, she was placed on job search leave of absence on November 21 while she
searched for a replacement position. (Def.’s 56.1 {| 14; Pl.’s 56.1 Stmt. 34.) As of November 21,
Plaintiff had worked 1,159 hours in the previous twelve months and was fully able to return to her
original nursing duties. (Def.’s 56.1 If] 15, 25.) Plaintiff never returned to her original certified
nursing assistant job at the hospital. (/d. 119.)

The Hospital does not ordinarily advise employees on a job search leave of absence about
any job openings; instead, the employee has the responsibility of seeking out and applying for such
positions on her own. (/d. {| 20.) Job openings are posted on a cafeteria bulletin board, and
employees apply by placing bids on vacant positions. (/d.) While on her job search leave of
absence, Plaintiff put in a written job bid for a Phlebotomist position and a Home Health Care
Assistant position, and claims to have orally requested numerous other positions. She was not
interviewed or hired for any of these slots. (PI.’s 56.1 Stmt. {| 19.)

Plaintiff wrote to the Hospital sometime in December, stating that she would be returning
to work on December 15. (Def.’s 56.1 {j 18; Ex. 7 to Plaintiff Dep.) Plaintiff testified that in writing
the letter, “I followed all the [Hospital's] instructions. | just wanted to know what my status was at
work. | hadn’t found anything within the hospital.” (Def.’s 56.1 {| 19; Ex. 7 to Plaintiff Dep.) On
December 16, 2000, Ellen Disbrow from Human Resources wrote Plaintiff to inform her that
because her “job search leave of absence had reached the maximum of four weeks,” and she had
failed to find another position at the Hospital, her employment at the hospital would be terminated.
(Ex. 8 to Plaintiff Dep.; Def.’s 56.1 {| 20.)

Just two weeks earlier, on December 1, 2000, Plaintiff had filed an Application for
Adjustment of Claim with the Illinois Industrial Commission, seeking compensation for the June

5



with her worker’s compensation claim. Plaintiff cannot even remember whether she visited him

before or after she filed her worker's compensation application. (Plaintiff Dep., at 59-61.)
Plaintiff has offered no evidence that Defendant was motivated by her workers’

compensation claim in discharging her. Defendant is entitled to summary judgment on this claim.

CONCLUSION

There are no disputes of material fact concerning Plaintiff's FMLA claim; even if the Hospital
failed adequately to advise Plaintiff that she was entitled to take unpaid leave following her wrist
injury, she remained on the payroll and entitled to return to her original job for well more than 12
weeks after that injury. She therefore suffered no damage as a result of Defendant's alleged
violation of FMLA. Nor has she established any causal link between her filing of a workers’
compensation claim and her termination. Piaintiff was and remains eligible for rehire by the
Hospital.

Defendant's motion for summary judgment (Doc. No. 9-1) is granted.

ENTER:

p

REGECCAR. PRIMER
United States District

Dated: September 22, 2004

18


denying FMLA leave, inducing and coercing Plaintiff to accept temporary light duty (“TLD”), and
failing to include sufficient notice regarding FMLA rights. (/d. at 2-3.) Plaintiff further alleges that
such violations constituted a willful interference with her rights. (/d. at 1-2.)

The FMLA provides job security to employees who miss work because of their own
illnesses, to care for family members who are ill, or to care for new babies. 29 U.S.C. § 2612.
Eligible employees are covered under the Act for up to twelve weeks of leave each year, and the
Act guarantees reinstatement to the employee's original job when work is resumed. 29 U.S.C.
§§ 2612(a)(1), 2614(a)(1). Employees who seek FMLA protection for their own iliness must have
worked for at least 1,250 hours in the previous twelve-month period, and possess a “serious health
condition” as defined by the FMLA regulations. 29 U.S.C. § 2611(2). For purposes of summary
judgment, the court is satisfied that Plaintiff may be classified as having a “serious health condition”
following both her June 2000 wrist injury and September 2000 surgery under the Act, as she was
incapacitated for more than three consecutive days, and required continuing treatment by a health
care provider. 29 C.F.R. § 825.114. Because Plaintiff had also worked more than 1,250 hours in
the twelve months preceding both the wrist injury and the surgery, she would be an FMLA-eligible
employee at both of these times. (Pl.'s 56.1 Stmt. ff] 7-8; Pl.’s Mem., at 5.) The FMLA makes it
unlawful for an employer to interfere with an eligible employee’s exercise or attempted exercise of
tights granted to her by the Act. 29 U.S.C. § 2615(a). As Plaintiff was an FMLA-eligible employee
following her injury and surgery, the remaining issue is thus whether Defendant interfered with
Plaintiff's FMLA rights in violation of the Act.

Plaintiff asserts that advising Defendant of her injury, and her later need for surgery, was
sufficient to put Defendant on notice that FMLA leave was needed. (PI.’s Mem., at 6.) An
employee does not qualify for FMLA protection until she has provided the employer with “enough
information to put the employer on notice that FMLA-qualifying leave is needed.” Stoops v. One
Call Communications, inc., 141 F.3d 309, 312 (7th Cir. 1998). In putting the employer on notice

8



Minute Order Fofin (0697)

CL p United States District Court, Northern District of Illinois

2.

valet of Assigned Jaage Redgate R. Pallmeyer Sitting Judge if Other
jr Magistrate Judge than Assigned Judge
CASE NUMBER “ 02 C 8855 DATE 9/22/2004
CASE Bernita Artis vs. Palos Community Hospital
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
ql) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
3) o Answer brief to motion due___. Reply to answer briefdue___.
(4) o Ruling/Hearing on set for___att
(5) o Status hearing[held/continued to] [set for/re-set for]on__esetfor ss at_
(6) Qa Pretrial conference[held/continued to] (set for/re-set for]on__——ssetfor_— sat
(7) a Trial[set for/re-set for]on___—at_
(8) a (Bench/Jury trial] [Hearing] held/continued toa
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) C)Local Rule 41.1 COFRCP4i(a)(1) OC FRCP41(a)(2).

ao (Other docket entry] Enter Memorandum Opinion And order. Defendant’s motion for summary
judgment (Doc. No. 9-1) is granted. Judgment is entered in favor of Defendant Palos Community
Hospital and against Plaintiff Bernita Artis.

a1) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court, _. Document.
2 Number

No notices required, ber of not
umber of notices

Y | Notices mailed by judge’s staff.

Notified counsel by telephone. SEP é & 20

Docketing to mail notices.

v | Mail AO 450 form, fng deputy tists

Copy to judge/magistrate judge.

srezranos
courtroom dale mailed notice

ETV deputy’s wv
initials

central Clerk’s Office “ mailing deputy initials



voluntary is thin. First, in response to specific and repeated questions at her deposition concerning
the grounds for her FMLA claim, Plaintiff made no mention of coercion.? She admitted that she
never asked for leave and that she was given information as to the nature of the Hospital’s TLD
program. (Def.’s 56.1 If] 8, 24; Plaintiff Dep., at 50-51, 69.) The TLD policy that Plaintiff received
does mention FMLA leave and presents limited duty as an option for the employee rather than as
mandatory: “If an employee elects not to return to the TLD assignment, available vacation and
holiday hours will not be paid, but the employee will not be eligible for Worker’s Compensation or
sick time benefits.” (Ex. 4 to Plaintiff Dep.) (Emphasis added).

William Cleary testified that when faced with a serious health condition, Hospital employees
are given a choice between paid light duty work and unpaid leave (except for remaining vacation
and sick days), and almost all choose to take a light duty position as it allows them to keep earning
money while they recover. (Cleary Dep., at 31-35.) No witness testified that Plaintiff herself was
offered such a choice, however. Nor did Defendant offer evidentiary support for its apparent theory
that, given a choice between light duty on full pay and leave without pay, any employee capable
of light duty work would opt for it. The court concludes there is a dispute of material fact
concerning this issue.

Even if the court were to resolve the matter in favor of Plaintiff, however, the court

2 Except under limited circumstances, an affiant may not contradict her deposition

testimony to establish a disputed issue of fact. Adusumilli v. City of Chicago, 164 F.3d 353, 360
(7th Cir. 1998). Plaintiff made two statements in her deposition that arguably contradict her
allegations regarding Ms. Morande. First, when asked how long she was put off work following the
work accident, Plaintiff responded, “At that time, | don’t remember. | think it was for three days until
| saw Dorothy Morande, the lady that works in the human resource office. Her name is Judy — no,
Judy. I’m sorry, her name is Judy.” (Plaintiff Dep., at 47.) This confusing answer seems to infer
that it was not Ms. Morande who Plaintiff first saw in the relevant period following her accident and
before her assignment to temporary light duty. Later, when questioned about the date on which
she started TLD, Plaintiff made no mention of Ms. Morande or of any threat. (/d. at 48-50.) Finally,
when asked three times if there were any other reasons why Plaintiff was suing under FMLA,
Plaintiff did not mention coercion, did not mention Ms. Morande, and did not mention any threat or
pressure to begin TLD work. (/d. at 69-71.)

an



job as a Certified Nursing Assistant,” and that she asked for time off to recover. (Plaintiff Aff. 111 8,
12, Ex. 17 to Pl.’s 56.1 Stmt.) Plaintiff further testified that she in fact “was put off work for about
three days” following the original wrist injury in June of 2000. (Plaintiff Dep., at 47-48.) She
remained on the hospital’s payroll, however. The fact that Plaintiff continued working, albeit on
limited duty, militates against the conclusion that the Defendant knew of her need for FMLA leave.
Indeed, Plaintiff did not and does not now assert that she was unable to work at all after the injury.

Plaintiff argues, alternatively, that Defendant violated the Act by coercing her to accept
temporary light duty in lieu of FMLA leave. (PI.’s Mem., at 10.) Regulations interpreting the FMLA
bar an employer from “interfering with, restraining, or denying the exercise of (or attempts to
exercise) any right provided by the [FMLA].” 29 C.F.R. § 825.220(a)(1). Examples of interference
with FMLA rights include “refusing to authorize FMLA leave,” “discouraging an employee from using
such leave,” and manipulation by an employer to avoid FMLA duties, such as “changing the
essential functions of the job to preclude the taking of leave.” 29 C.F.R. § 825.220(b){2).. While
“employees cannot ‘trade off the right to take FMLA leave against some other benefit offered by
the employer,” the regulations do contemplate situations where, as in this case, an employee is not
ready to return to her regular job, but can perform light duty work. 29 C.F.R. 825.220(d). Under
such circumstances, the FMLA is satisfied so long as acceptance of light duty work is “voluntary
and uncoerced,” and the employee's regular job is held open for twelve weeks, regardless of
whether she spends those twelve weeks on light duty, unpaid leave, or some combination. id.

Plaintiff suggests that her acceptance of limited duty was coerced because Defendant failed
to advise her of her FMLA leave rights and failed to explain that TLD was voluntary and in piace
of FMLA leave. (PI.’s Mem., at 10.) tn her affidavit, Plaintiff asserts that Dorothy Morande of
Employment Health Services threatened to terminate her if she did not accept transfer to light duty
on July 5, 2000. (Plaintiff Aff. | 13, Ex. 17 to Pl.’s 56.1 Stmt.)

The evidence that would support the theory that Plaintiff's acceptance of light duty was not

10



DISCUSSION

1 Standard of Review

Defendant moves for summary judgment on Plaintiff's claims. Summary judgment is
appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, demonstrate 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);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). There is no genuine issue of material fact
unless “a reasonable jury could find for the party opposing the motion based on the record as a
whole.” Pipitone v. United States, 180 F.3d 859, 861 (7th Cir, 1999) (internal quotations and
citations omitted). The court must construe all facts in the light most favorable to the non-movant
and draw all justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

Plaintiff brings two counts against Defendant. Count | alleges that Defendant violated her
FMLA rights. (Compl. ff 7-10.) Count Il asserts that Defendant terminated Plaintiff in retaliation
for Plaintiff having filed a worker's compensation claim with the Illinois Industrial Commission. (/d.
| 13.) The court addresses each claim in turn.
M Family & Medical Leave Act Claim

Plaintiff alleges that she was entitled to FMLA leave within the meaning of 29 U.S.C.
§ 2612(a)(1), and that she lost pay as a direct result of Defendant's failure to place her on leave.
(Compl. ff] 9-10.) In her brief, she acknowledges that FMLA leave is unpaid, but argues that her
complaint “clearly is referring to subsequent wages and thus alleging that she lost her position in
violation of the FMLA.” (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for
Summary Judgment (hereinafter, “Pl.’s Mem.”), at 1.) Plaintiff's brief further asserts that Defendant

was put on notice of her need for FMLA leave and that Defendant willfully violated the FMLA by



is able to resume his or her job. (/d. at 1.) The policy statement also refers to the FMLA,
explaining that “an employee who qualifies under the [FMLA] . . . will be given job protection of
twelve weeks from the last day worked in his/her regular position.” (/d. at 2.)

Plaintiff claims that the employee handbook is silent on the matter of FMLA rights, but the
court notes that the handbook does address the matter, explaining in the Leave of Absence section
that if “your leave qualifies under the [FMLA], job protection of 12 weeks per year will be provided.
This means that, on return from leave within this period, you will be restored to the position you
held or an equivalent position.” (Employee Handbook, Ex. 8 to Pl.’s 56.1 Stmt., at 24.) Plaintiff
also claims that the Hospital’s Employee Handbook, FMLA poster, Leave of Absence Policy
951.412, and TLD notice all fail to inform employees that light duty work is in lieu of FMLA leave
and voluntary. (Pl.’s 56.1 Stmt. | 32; Ex.’s 7-10, 12 to Pl.’s 56.1 Stmt.) Defendant denies this
assertion in part, pointing out that the pages from the employee handbook cited by Plaintiff do
discuss FMLA leave. The Department of Labor poster used by Defendant is a government form;
it makes no mention of the relationship between TLD and FMLA leave. (Ex. 12 to Pi.’s 56.1 Stmt.)
Defendant specifically denies that assignment to TLD is involuntary, and notes that the TLD policy
explicitly states that employees may choose not to return to light duty, at the price of losing
eligibility for worker's compensation or sick time benefits.’ (Def.’s Resp. {| 32; Statement of Policy,
Ex. 4 to Plaintiff Dep.) The TLD policy also states that if the employee's position has been filled
when he or she is “cleared for regular duties, every effort will be made to assist the employee to

find a suitable position.” (Statement of Policy, Ex. 4 to Plaintiff Dep.)

' This language makes no mention of the possibility of FMLA leave for a worker who
suffers from a serious medical condition; the Policy might therefore benefit from a revision. Read
in context, it appears that this provision addresses the circumstance in which a temporarily disabled
worker prefers to remain employed but nevertheless declines the particular TLD assignment. As
noted, the following page of the Policy does refer explicitly to FMLA leave, stating, “an employee
who qualifies under the Family Medical Leave Act of 1993 (FMLA), will be given job protection of
twelve weeks from the last day worked in his/her regular position.”

3


not established that the Defendant failed to fulfill the regulations’ FMLA notice requirements.
Finally, as noted earlier, Defendant kept Plaintiff's job open while she was on TLD for several
weeks more than the FMLA demands. Thus, any failure to notify Plaintiff more fully of her FMLA
tights resulted in no actionable damages.

The court finds no violation of FMLA on this record; but to the extent that any violation has
been shown, Plaintiff has not satisfied the court that there was willfulness, and therefore her case
would be dismissed as untimely anyway.’ See McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133 (1988) (holding that in order to establish a willful violation of labor laws, a plaintiff must show
that “the employer either knew or showed reckless disregard for the matter of whether its conduct
was prohibited by the statute.”) Because Plaintiff is unable to support her claim that Defendant
interfered with her FMLA rights, and because it is undisputed that she received the full twelve
weeks of job protection that the FMLA provides, Defendant’s motion for summary judgment as to
Plaintiff's FMLA claim will be granted.

Mh. Retaliatory Discharge Claim

Plaintiff's second cause of complaint is that she was terminated in retaliation for filing an
Application for Adjustment of Claim with the Illinois Industrial Commission. MNlinois courts recognize
an action for retaliatory discharge where employees are discharged in retaliation for exercise of
their worker's compensation rights. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159, 601 N.E.2d
720, 728 (1992); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181, 384 N.E.2d 353, 356 (1978). Such
a claim requires a showing that (1) the plaintiff was the defendant’s employee before her injury; (2)
the plaintiff exercised a right granted by the Worker's Compensation Act; and (3) the plaintiff's

discharge was causally connected to her having filed a worker's compensation claim. Borcky v.

3 The statute of limitations requires non-willful allegations to be brought within two

years and willful allegations to be brought within three years. 29 U.S.C. § 2617(c). As the
complaint was filed on December 9, 2002, any claim based on events occurring before
December 9, 2000 would be time barred unless they constitute a willful violation of the FMLA.

14



worker's compensation claim on December 1, 2000, (Pl.’s 56.1 Stmt. | 35; Ex. 19 to Pl.'s 56.1
Stmt.), but Defendant did not receive notice of this application until December 8. (Def.’s 56.1 ¥] 16;
Cleary Decl. 1/7, Ex. 3 to Def.’s 56.1.) On November 14, 2000, well before she ever filed her claim,
Plaintiff received a letter from Dorothy Morande informing her that she was being placed on a four-
week job search leave of absence, and that if she failed to find another position in the hospital by
December 16, she would lose her job. (Def.’s 56.1 ff] 12-13; Ex. 6 to Plaintiff Dep.) Defendant
thus notified Plaintiff of her potential termination more than two weeks before Plaintiff even filed her
worker's compensation claim, and three weeks before Defendant received notice of such claim.
Plaintiff's termination letter and Mr. Cleary's deposition both clearly state that she fost her job
because she had not secured another position before her job search leave of absence expired.
(Def.’s 56.1 20, Ex. 8 to Plaintiff Dep.; Cleary Dep., at 68.) The undisputed fact that Plaintiff was
notified of the date and reason for her termination prior to her filing the worker's compensation
application clearly serves as a valid, nonpretextual reason for her discharge. The fact that
Plaintiff's termination occurred two weeks after she filed the worker's compensation claim does not
prove retaliatory motive.

Nor is the court persuaded by Plaintiff's argument that Defendant's failure to advise her of
open positions and assist her in finding a job at the Hospital demonstrates retaliatory motive. The
Defendant's policy is to post job openings on the employee bulletin board, giving employees first
shot at positions before the public. (Pl.’s 56.1 Stmt. | 20; Disbrow Dep., at 38-43.) Plaintiff argues
that this hands-off approach conflicts with the Hospital’s own TLD policy, which assures employees
that “every effort will be made to assist [them in finding] . . . a suitable position” following their
recovery. (PI.’s 56.1 Stmt. | 28; Ex. 9 to Pl.’s 56.1 Stmt.) The lack of any effort on Defendant's
part to actually assist Plaintiff here may be disappointing, but it does not, without more, establish
a causal link between her termination and the filing of the Application.

Marin v. American Meat Packing Co., 204 Ill. App. 3d 302, 562 N.£.2d 282, 286 (1st Dist.

16



inflammation and swelling. (Pl. 56.1 Stmt. | 13; Def.’s 56.1 16.) Plaintiff took at least three days
off work to recover from the injury and then returned to work in the Hospital’s Human Resources
Department on temporary limited duty (“TLD”) on July 5, 2000. (PI.’s 56.1 Stmt. | 9; Def.’s 56.1
97)

Plaintiff contends that on July 5, 2000, she informed Dorothy Morande of Employee Health
Services that she was not fully recovered from her injury and needed more time off, but Ms.
Morande responded that if Plaintiff did not start TLD she would lose her job. (Plaintiff Aff. [ 13, Ex.
17 to Pl.’s 56.1 Stmt.) The Hospital denies this conversation ever took place, noting that in her own
deposition, Plaintiff testified she was put off work for three days until she saw Ms. Morande, but
then corrected herself and said it was actually someone named “Judy” with whom she met.
(Defendant's Response to Plaintiff's Statement of Additional Material Facts (hereinafter, “Def.’s
Resp.”) J] 15; Plaintiff Dep., at 47.) In her testimony, Plaintiff made no mention of an ultimatum
issued by anyone at the Hospital.

Plaintiff also argues that she was never given information as to her FMLA leave rights and
was never advised that TLD was voluntary or that it was in lieu of FMLA leave. (Plaintiff Aff. 16,
Ex. 17 to Pl.’s 56.1 Stmt.) The parties agree that Plaintiff was given some information concerning
the nature of the TLD program, specifically a handout entitled “Temporary Limited Duty, Your
Questions Answered,” and a “Statement of Policy’ relating to TLD. (Plaintiff Dep., at 50-52; Def.’s
56.1 7.8.) The policy statement explains that “[i]f an employee elects not to return to the TLD
assignment, available vacation and holiday hours will be paid, but the employee will not be eligible
for Worker's Compensation or sick time benefits. . . . If the employee's position has been filled
when the employee is cleared for regular duties, every effort will be made to assist the employee
to find a suitable position.” (Statement of Policy, Ex. 4 to Plaintiff Dep., at 1, 2.) The stated
purpose for the policy is “[t]o provide a program through which an employee who is temporarily
disabled can readjust to the working environment” while working in some capacity until he or she

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BERNITA ARTIS,
Plaintiff,
v. No. 02 C 8855

PALOS COMMUNITY HOSPITAL, Judge Rebecca R. Pallmeyer

Defendant.

TE
MEMORANDUM OPINION AND ORDER SEP 9 3 2004

Plaintiff Bernita Artis worked as a certified nursing assistant for Palos Community Hospital
until a wrist injury rendered her temporarily unable to continue. She continued for several months t
on light duty but was not able to obtain another permanent position with the hospital and was
discharged in December 2000. In this lawsuit, Artis alleges that her termination was in violation
of the Family & Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 ef seq., and that she was
discharged in retaliation for having filed an application with the Illinois Industrial Commission, i-e.,
a worker's compensation claim. Defendant moves for summary judgment, arguing that the
undisputed facts show that there was no violation of the FMLA and that her discharge was
unrelated to her filing of a workers’ compensation claim. For the reasons discussed below, the
court grants summary judgment in favor of Defendant.

FACTUAL BACKGROUND

Plaintiff was hired by the Defendant, Palos Community Hospital, as a certified nursing
assistant in March of 1999 and worked there until December of 2000. (Defendant's Statement of
Material Facts (hereinafter, “Def.’s 56.1”) ] 4.) On June 27, 2000, Plaintiff injured her left wrist
while attempting to prevent a patient from falling out of bed. (/d. 5; Plaintiff's Statement of
Additional Material Facts (hereinafter, “Pl.’s 56.1 Stmt.”) 4.) Following instructions from the

charge nurse, Plaintiff went to the Hospital's emergency room, where she was diagnosed with


concludes she will not be able to establish a deprivation of rights protected by the FMLA.
Assuming that Plaintiff would have preferred unpaid FMLA leave to fully-paid limited duty, the fact
remains that she was accorded a full twelve weeks of job protection, from June 27 to
September 20, 2000. Under relevant regulations, an employee who accepts light duty must retain
the “right to restoration to the same or an equivalent position . . . until 12 weeks have passed within
the 12-month period, including all FMLA leave taken and the period of ‘light duty.” 29 C.F.R.
§ 825.220(d). The Hospital's TLD policy adheres to this requirement; it provides: “In accordance
with hospital policy for Leave of Absence, an employee who qualifies under the Family Medical
Leave Act of 1993 (FMLA) will be given job protection of twelve weeks from the last day worked
in his/her regutar position.” (Ex. 9 to Pl.’s 56.1 Stmt.) Under the regulations, whether on FMLA
leave or light duty, an employee who is unable to resume her original position after twelve weeks
has no further protection under FMLA. It is undisputed that Plaintiff here was not cleared to return
to her CNA position until November 20, 2000, more than twenty weeks after she was injured and
began light duty. (Ex. 6 to Plaintiff Dep.) Even on that date, she was not terminated; instead,
Defendant gave her an additional four weeks of job search leave to find a replacement position in
the Hospital. (/d.) The Defendant had no duty to give her the nursing job back and was justified
in terminating her at any time following September 20.

Plaintiff is reduced to arguing that on June 27, 2000 she should have been granted unpaid
leave (which she never requested) and been given over twenty weeks of job protection until
November of 2000. Instead, she was given temporary light duty work with full pay and benefits and
received substantially more than the FMLA-prescribed twelve weeks of protection. (Defendant's
Reply Brief in Support of its Motion for Summary Judgment, at 14.) If the court were to resolve
disputed facts in her favor, the undesirable conclusion would be that Defendant acted improperly
only in continuing to employ and pay Plaintiff.

At oral argument on this motion, the court briefly addressed a theory of recovery that

12


Maytag Corp., 248 F.3d 691, 695 (7th Cir. 2001). As the first two elements are clearly met in this
case, the important matter is the causation element.

In retaliatory discharge cases, the employer’s intent is often the critical issue. Dixon
Distributing Co. v. Hanover Ins. Co., 244 Ill. App. 3d 837, 851, 612 N.E.2d 846, 852 (5th Dist.
1993), affd, 161 Ill. 2d 433, 641 N.E.2d 395 (1994). Plaintiff points out that the issue of intent or
motive is a question of material fact and one which is not normally appropriate for summary
judgment. Jones v. Burkart Foam, Inc., 231 Ill. App. 3d 500, 596 N.E.2d 882 (Sth Dist. 1992).
Plaintiff further argues that an employer's failure to inform an employee of the next available
position can be evidence of retaliatory motive, Hugo v. Tomaszewski, 155 Ill. App. 3d 906, 508
N.E.2d 1139, 1142 (5th Dist. 1987), and proving that an employer reneged on its promise to rehire
an employee can demonstrate retaliatory motive. Jackson v. Bunge Corp., 40 F.3d 239, 243 (7th
Cir. 1994).

In this case, Defendant admittedly did very little to inform Plaintiff of open positions and
assist in her job search, as Hospital policy places the responsibility to search out and apply for
open positions on the employee herself. (Pl.’s 56.1 Stmt. {| 20.) Plaintiff did apply for a
Phlebotomist and Home Health Care Assistant position, but was not interviewed or hired for either.
(/d. 19.) Plaintiff additionally contends that Mr. Cleary promised her she could return to work, and
reneged on his promise. (/d. 18.) Plaintiff contends these facts establish retaliatory motive that
was causally related to her filing of a worker's compensation claim. (Pl.’s Mem., at 14.)

In a retaliatory discharge case the employee bears the burden of proving all elements of
the cause of action; the employer is not required to supply an explanation for the employee's
discharge. Borcky, 248 F.3d at 696. Nevertheless, ‘if the employer has a valid, nonpretextual
basis for discharging the employee” then the element of causation is not met. Paz v.
Commonwealth Edison, 314 Ill. App. 3d 591, 594, 732 N.E.2d 696, 701 (2d Dist. 2000).

In this case the undisputed facts defeat any inference of causation. Piaintiff filed her

15