Pepsi’s otherwise legitimate personnel decision.

Next Henry attacks the sufficiency of Pepsi’s evidence as to
its reasons for her termination. She claims that she was
terminated “simply because her position no longer [was] full
time” (H. Mem. 12), arguing that Pepsi didn’t have a legitimate
reason for terminating her because it has not been able to
produce evidence of pressing budget constraints at the Facility
in 2002 or evidence of any corporate directives regarding
layoffs, reductions in force or streamlining at the Facility.
But it must be remembered that for Rule 56 purposes Pepsi’s
version must be credited, so that it cannot be held that a
factfinder would necessarily reject the evidence presented by
Pepsi in support of its assertion that Henry’s position was
unnecessary.

In sum, it cannot be said as a matter of law that Henry has
overcome the evidence proffered by Pepsi in support of its
assertion that her position would have been eliminated regardless
of whether she took FMLA leave. And so Henry is not entitled to
judgment as a matter of law with respect to her claim that
Pepsi’s termination of her employment violated Section
2615 (a) (1).

Conclusion
For the reasons stated here, Henry’s Rule 56 motion for

summary judgment is denied. Because the parties have previously

14


(insert date) (must be at least 15 days after you
are notified of this requirement) or we may delay the
commencement of your leave until the certification is
submitted.

Gibson did not otherwise inform Henry of the consequences of
failing to submit Pepsi’s FMLA forms or medical certification.
Henry does not recall completing the FMLA form, but she “thinks
she sent the papers back” to Pepsi (P. St. 931). Henry did not
keep copies of the form for her records, she does not recall
asking her doctor to complete any forms and her doctors have no
record of having completed those forms (P. St. 99133, 37, 42).

When Henry’s leave commenced, Pepsi temporarily reassigned
her payroll duties to the Facility’s Express Sales Secretary
Vanessa Faulkner (“Faulkner”) (BP. St. 954). Faulkner took about
an hour a week to perform those duties (P. St. 956). It is not
clear who performed Henry’s dispatch duties in her absence.

When Henry returned from her leave of absence on August 15,
she resumed the duties associated with her dispatch position but
did not resume the payroll functions (P. St. 166). Gibson did
not restore the payroll functions because she believed that they
had contributed to Henry’s stress (P. Resp. 935) and because she
realized that Faulkner’s assumption of those duties gave Faulkner
‘a full-time job” (H. St. 938). Despite the reduction in
responsibility, Henry’s pay was not affected (id.)

After being told that her payroll duties were not being

restored, Henry complained to Gibson that she did not have enough


Because then Pepsi was on notice that Henry needed FMLA-
qualifying leave, and because it did not allow her sufficient
time to submit the certification it required for such leave,
Henry was entitled as a matter of law to FMLA leave and its
associated protections. That leads to consideration of Pepsi’s
second defense to Henry’s claim.

Henry’s Entitlement to Reinstatement

At its core, Henry’s FMLA claim is that she was denied her
statutory right to reinstatement when Pepsi reinstated her only
to a partial position and then terminated her because that
position was not full-time. While the parties treat as separate
issues Henry’s reinstatement to a position with reduced
responsibility and her termination a week later, those events
were, as Henry says, “inextricably linked” (H. Mem. 11). This
opinion will treat them as such, for Henry’s real quarrel is not
with Pepsi’s failure to restore her payroll functions but with
its elimination of her position. On that score Pepsi argues that
it did not deny Henry any FMLA-guaranteed rights upon her return
from leave because she would not have been entitled to the
benefit she claims--reinstatement to the conventional dispatch
position--regardless of whether she took FMLA leave.

Generally when an employee alleges a deprivation of FMLA’s
substantive guaranties, she need only demonstrate by a

preponderance of the evidence her entitlement to the benefit she

10


condition” (King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th

Cir. 1999); Section 2612(a)(1)(D)). And second, to effectuate
that guaranty the statute also provides that any employee who
takes such leave (Section 2614(a) (1)):

shall be entitled, upon return from 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.

Henry argues that she was entitled to FMLA leave and that Pepsi’s
elimination of her position following that leave denied her the
right to reinstatement.

For its part, Pepsi initially urges that the facts do not
show Henry was entitled to FMLA leave in the first instance. But
even if ner leave was FMLA-qualified, Pepsi argues that Henry was
not entitled to reinstatement because her position would have
been eliminated regardless of whether she took FMLA leave. This

opinion considers those arguments in turn.

Henry’s Entitlement to FMLA Leave

As already indicated, Pepsi contends that Henry was not
entitled to FMLA leave and that its protections do not apply
because Henry never “requested or sought FMLA leave” (P. Mem. 6)
and, in that respect, that she did not return the medical

certification form Pepsi required of employees requesting leave


work, claiming that her dispatch responsibilities occupied only
two to four hours each day (H. St. 933). As a result Gibson and
Guzzarde talked about eliminating Henry’s position (H. St. 9139.
Guzzarde also discussed with the Facility’s Office Manager Sharon
Dellorta and the Conventional Sales Department's Sales Manager
Eric Johnson the possibility of other employees absorbing Henry’s
duties. Guzzarde and Gibson then decided, in light of the
financial constraints facing the Facility, that Henry’s position
should be eliminated, with her duties being absorbed by other
employees (H. St. 940; H. Ex. 9 at No. 4; P. Resp. 940). On
August 22 Gibson told Henry that the conventional dispatch
position was being eliminated, so that her employment was being
terminated effective immediately (H. St. 941).
Henry’s FMLA Claim

Henry claims that the reduction of her responsibilities and
the consequent elimination of her position violated substantive
rights guaranteed her by the FMLA. In particular she asserts
that Pepsi violated Section 2615(a) (1), which makes it “unlawful
for any employer to interfere with, restrain, or deny the
exercise of any right provided” by the FMLA.

At issue here are two substantive rights created by the
FMLA. First, it “provides eligible employees of a covered
employer the right to take unpaid leave for a period of up to

twelve work weeks in any twelve-month period for a serious health


Mrs. Henry has severe anxiety and needs to be off work for

at least one week beginning 8/1/02 through 8/11. If better

she can return on 8/11.

Henry’s failure to invoke the FMLA in notifying Pepsi of her need
for leave is therefore of no consequence.

Pepsi then argues that Henry was not entitled to FMLA leave
because she failed to submit medical certification of her FMLA-
qualifying condition. True enough, an “employer may require
certification from the employee’s physician (or other health care

provider) that the employee indeed has such a condition” (Rager

v. Dade Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000); Section

2613(a)). But if the employer does so require, it must grant the
employee 15 calendar days in which to submit the certification
and must “notify the employee promptly and in writing of the 15
day deadline and of the consequences of not complying with it”
(Rager, 210 F.3d at 777; Reg. $§825.301 and .305).

Pepsi notified Henry of its certification requirement in an
August 9 letter. Henry therefore had until August 24 to provide
such certification. But she was terminated before that—-on
August 22. Pepsi cannot contend in good conscience that Henry’s
failure to submit the certification bears on whether her leave
was FMLA-qualified. Moreover, Pepsi’s related assertion that
“there is no evidence that Henry was prejudiced in any way” (P.
Mem. 8) by its failure to allow her the requisite 15 days has no

basis in the statute, regulations or relevant caselaw.


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

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff, )
)
RENAEE N. HENRY, )
)
Intervenor-Plaintiff, ) No. 03 C 6576
)
v. )
)
PEPSIAMERICAS, INC., et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER

Intervenor-plaintiff Renaeé Henry (“Henry”) has moved for
partial summary judgment pursuant to Fed. R. Civ. P. (“Rule”) 56
as to her claim that PepsiAmericas, Inc. and Pepsi-Cola General

Bottlers, Inc. (collectively “Pepsi”)’ violated the Family and

Medical Leave Act of 1993 (“FMLA,” 29 U.S.C. §§2601-2654’) by

' there is an issue as to whether Henry was employed by

PepsiAmericas, Inc. or by its wholly owned subsidiary, Pepsi-Cola
General Bottlers. Henry’s superiors testified that they worked
for PepsiAmericas, Inc., and one of those superiors, Rene Gibson
(“Gibson”), appeared on behalf of PepsiAmericas, Inc. for a Rule
30(b) (6) deposition in this litigation. Nonetheless Pepsi has
submitted an affidavit claiming that all employees at the
facility where Henry worked were employees of Pepsi-Cola General
Bottlers and that PepsiAmericas, Inc. has no employees. Because
the parties have represented that they are trying to reach a
stipulation as to the proper defendant, and because in any event
a resolution of that issue is unnecessary to the ruling on
Henry’s motion, this Court withholds judgment as to which of the
two Pepsi entities is the proper target of Henry's suit.

2 All further references to the FMLA’s statutory provisions
will simply take form “Section--.”


assertion.

Pepsi first points out that for some six months before
Henry’s termination Guzzarde had explored the possibility of
eliminating various positions (including Henry’s) at the
Facility. Henry also admits that Gibson and Guzzarde discussed
various cost-saving measures before and after the costly May 2002
Teamsters strike at the Facility. Only the Facility, among
Pepsi’s four Chicago-area distribution facilities, employed a
conventional dispatcher--at the other three, managers performed
conventional dispatch duties (P. St. 922, 23). And it is
undisputed that after Henry’s termination she was not
replaced--her duties were rather absorbed by existing Pepsi
employees. All of those facts tend to support Pepsi’s assertion
that at least in prima facie terms Henry was not entitled to the
conventional dispatch position upon her return from FMLA leave,
because it proffered a threshold showing of a legitimate economic
reason for eliminating that position unrelated to that leave.

After an employer has thus presented evidence to show the
employee would not have been entitled to the position in any
event, the employee must overcome that assertion, “as she carries
the burden of demonstrating her right to the entitlement” (Kohls,
259 F.3d at 804). Henry musters two arguments in an attempt to
do so. But neither establishes her entitlement to the

conventional dispatch position as a matter of law.

12


claims (Diaz v. Ft, Wayne Foundry Corp., 131 F.3d 711, 713 (7th

Cir. 1997)). Having established her entitlement to FMLA leave,
Henry observes correctly that she is entitled to reinstatement to
the extent the FMLA guarantees it.

But the FMLA-guaranteed right to reinstatement is not

absolute (Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804

(7th Cir. 2001)). Section 2614 (a) (3) (B) specifies:

Nothing in this section shall be construed to entitle
any restored employee to--

* * *

(B) any right, benefit, or position of
employment other than any right, benefit, or
position to which the employee would have been
entitled had the employee not taken the leave.
Thus an employer does not infringe any FMLA-guaranteed rights by
firing an employee who would have been terminated regardless of
whether she took FMLA leave.

Hence the relevant question in denial-of-reinstatement cases
centers on “why the employee was not reinstated” (Kohls, 259 F.3d
at 805). Where as here an employee establishes by a
preponderance that she is entitled to reinstatement under the
FMLA, “(t]he employer may then present evidence to show that the

employee would not have been entitled to her position even if she

had not taken leave” (Kohls, 259 F.3d at 804). Pepsi argues that

Henry’s termination was a cost-saving measure unrelated to her

FMLA leave, and it points to a number of facts in support of that

11


under the FMLA. But that argument ignores both FMLA regulations
and well-established caselaw to the contrary.

To be eligible for leave under Section 2612(a) (1) (D) an
employee must have a “serious health condition” that prevents her

from performing her job (Stoops v. One Call Communications, Inc.,

141 F.3d 309, 312 (7th Cir. 1998)). Pepsi does not dispute that
Henry had such a condition--it argues instead that Henry had an
obligation to notify it that she was taking leave under the FMLA.
Not so: It is not an employee’s duty to designate her requested
leave as FMLA-qualified, nor need she even mention the statute
(29 C.F.R. §825.303(b)°). Indeed, “the employee can be
completely ignorant of the benefits conferred by the Act: it is
sufficient notice if the employee provides the employer with
enough information to put the employer on notice that FMLA-
qualifying leave is needed” (Stoops, 141 F.3d at 312). Dr.
Crevier’s note, received by Pepsi on August 3, undoubtedly put

Pepsi on such notice (H. Ex. 1)®:

5 Purther citations to the regulations in 29 C.F.R. will

take the form “Reg. §--.”

6 pepsi objects to the copy of Dr. Crevier’s note submitted
by Henry on the ground that it “lacks foundation and is hearsay
and, therefore, is inadmissible evidence” (P. Resp. 914). That
hearsay objection is nonsense--the document is offered to show
the existence of notice to Pepsi, not for the truth of its
contents. As for foundation, that objection is equally baseless:
Pepsi attaches a copy of the same note as its own Ex. 13 in
support of its LR 56.1 statement of additional facts, and it
admits that it received the note on August 3.

8


significant financial strain on the Facility’s operations,
Pepsi’s Regional Manager Jeff Guzzarde (“Guzzarde”) and Human
Resources Manager Rene Gibson (“Gibson”) discussed the
implementation of cost-saving measures at the Facility (id.).
Although since February Guzzarde had also considered eliminating
positions in various Facility departments, including Conventional
Sales (P. St. 9161), no position was formally eliminated at the
Facility before August (P. St. 962).

On August 1 Henry began a two-week leave of absence due to
stress and anxiety (H. St. 914). She gave Pepsi a note from her
physician Dr. William Crevier confirming her need for leave (H.
St. 914; P. Resp. 914). Upon learning that Henry had taken
leave, and understanding that her condition could qualify her for
FMLA leave, Gibson sent Henry an August 9 letter (H. Ex. 2)
together with Pepsi’s standard form (H. Ex. 3) entitled “Employer
Response to Employee Request for Family or Medical Leave” (H. St.
919). Gibson’s letter reads::

This letter is to advise you that Family Medical Leave Act

(FMLA) runs concurrently with Short Term Disability (STD).

Therefore, enclosed you will find the appropriate FMLA

documents [sic] please have your physician complete them and

return to my attention.
Pepsi required employees requesting FMLA leave to submit both a
medical certification and the standard form (P. St. 945), which
reads (H. Ex. 3):

You will be required to furnish medical certification of a
serious health condition. You must furnish certification by


submitted, and this Court has issued, a final pretrial order, and
because this Court has contemporaneously resolved the parties’
motions in limine on which briefing has just been completed, this
case will be set for trial when all parties have indicated their

dates of unavailability during the next several months.

Milton I. Shadur
Senior United States District Judge

Date: June 21, 2005

15


jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is
a summary of the relevant facts, viewed of course in the light
most favorable to nonmovant Pepsi.
Facts

Henry was hired as a dispatcher in the Conventional Sales
Department at Pepsi’s 35th Street Distribution Facility
(“Facility”) in Chicago, Illinois in September 1999 (P. St. 98).
Within a few months of being hired, Henry also took on “payroll
functions” in addition to her dispatch responsibilities (H. St.
49). Taken together, Henry’s job duties included taking
attendance, correcting payroll discrepancies, sending hand-held
printers out for repair, acting as a liaison between other
employees and Pepsi’s human resources department in matters of
leave and benefits, sending injured employees for drug testing
and assigning work to drivers, helpers and merchandisers (P. St.
q17). That congeries of duties was apparently shared among
different positions at Pepsi’s other three Chicago-area
distribution facilities, for none of those facilities employed a
conventional sales dispatcher (P. St. 923).

In May 20024 the Facility experienced a Teamsters labor

union strike (P. St. 9160). Because that strike placed a

4 Because all other relevant events also occurred during

2002, other date references will omit the year designation.

3


failing to reinstate her employment after she returned from an
FMLA-entitled leave. Both parties have submitted statements of
material fact as called for by this District Court’s LR 56.1.?
Because Henry has not shown that she is entitled to relief as a
matter of law, her motion is denied.
Rule 56 Standards

Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor

(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.

2002)). But to avoid summary judgment a nonmovant “must produce
more than a scintilla of evidence to support his position” that a

genuine issue of material fact exists (Pugh v. City of Attica,

259 F.3d 619, 625 (7th Cir. 2001)) and “must set forth specific
facts that demonstrate a genuine issue of triable fact” (id.).

Ultimately summary judgment is warranted only if a reasonable

[LR 56.1 requires parties to submit evidentiary statements,
and responses to such statements, to highlight which facts are
disputed and which are agreed upon. This opinion cites to
Henry’s LR 56,1 statement as “H. St. QI--,” to Pepsi’s as “P. St.
g--” and to their respective responses as “H. Resp. {--” and “P.
Resp. 9--.” Where either party’s LR 56.1 statement is undisputed
by the opponent, the opinion includes only a citation to the
original statement. Memoranda »1id documents submitted by the
parties are also identified by those same “H.” and “PL”
designations.


First Henry observes that the timing of Pepsi’s actions and
its own admissions demonstrate that her payroll functions were
reassigned to Faulkner as a direct result of her leave. She
argues that Pepsi thus cannot show it would have taken that

‘action, which ultimately resulted in the elimination of her
position, had she not taken FMLA leave. But while it is
undisputed that Henry’s leave prompted the temporary reassignment
of her payroll functions, the decisions to make that reassignment
permanent and then to eliminate Henry’s part-time conventional
dispatch position were--according to Pepsi, whose assertion must
be credited in the present Rule 56 context--made because the
temporary reassignment enabled Gibson and Guzzarde to realize
that the conventional dispatch position was unnecessary.

Kohls addressed an analogous situation in which an employer
did not discover deficiencies in an employee’s work until after
the employee took leave. Confronted with the argument that the
timing of the employer’s actions demonstrated that the employee’s

termination would not have occurred absent the leave, Kohls, 259

F.3d at 806 held “[t]he fact that the leave permitted the
employer to discover the problems cannot logically be a bar to
the employer’s ability to fire the deficient employee.” So too,
if Pepsi’s version of events is credited, the fact that Henry’s
FMLA leave allowed Pepsi to discover that her duties were easily

absorbed by other employees should not be a bar to what would be

13