reasons was or were in fact pretextual (id.).

Hunt does not really contest Burke’s establishment of her
prima facie case (H. Mem. 9-11). Instead Hunt argues (1) that it
has provided a legitimate nondiscriminatory reason for Burke's
termination and (2) that Burke has failed to provide evidence
even suggesting that the reason was pretextual (id.).

It has already been explained that Hunt has provided
extensive evidence that the elimination of Burke’s position and
her consequent termination were ascribable to a client’s decision
to restructure for cost-saving reasons and had nothing to do with
Burke’s FMLA leave. Unsurprisingly in light of that
uncontroverted (and compelling) showing, Burke’s responsive
memorandum offers no direct argument that Hunt’s explanation is
pretextual. What she tenders instead are extensive quotations
from King, 166 F.3d at 894 and a citation to Merli v. Bill
Communc’ns, Inc., No. 01 Civ. 0359 (LMM), 2002 U.S. Dist. LEXIS
4530, at *7, *19 (S.D. N.Y. Mar. 18), presumably as examples of
cases in which plaintiffs were able to avoid summary judgment by
offering evidence indicating possible pretext.

But those references cannot do the job, for those cases have
no relevance where as here there is a total evidentiary void on
the pretext issue. With no arguable factual issue as to the
pretextuality of Hunt’s stated reason for Burke’s termination,

and with no other remotely colorable reason to preclude summary

14


and a later affidavit, such cases as Ineichen v. Ameritech, 410

F.3d 956, 963 (7** Cir. 2005)). But even apart from that, the
representation in the affidavit is inadmissible on hearsay
grounds: it merely reports what two Hunt employees--only one of
whom, Mark Emerson (“Emerson”), she was apparently able to
name--purportedly told her (B. Aff. (9111-12).

To be sure, Evid. Rule 801 (d) (2) (D) prescribes the basis for
nonhearsay (and hence admissible) treatment of some statements
made by agents of a party opponent. But those criteria include
the requirement that the statements at issue concern “a matter
within the scope” of the declarant’s employment (id.). Here the
only evidence Burke has offered on that score is her vague
claim--wholly lacking in foundation--that Emerson “purportedly
had some authority over this matter” (B. Aff. 912). But in that
respect Emerson's asserted promise to “give [Burke’s application]
to the right person” (id.) confirms that he himself did not have
authority over hiring for that position. And with nothing to
show that Emerson had personal knowledge of a purported vacancy,
any statement that he might have made on the subject would itself
be based on someones else’s statement -— hence hearsay and
therefore inadmissible. Finally, what has been said here as to
Emerson obviously applies a fortiori to the anonymous second
employee to whom Burke claims to have spoken.

In the end Burke’s factual filings not only fail to meet the


2003) and cases cited there teach that when a party opposing
summary judgment fails to address a claim in his, her or its
responsive memorandum, that claim is deemed to have been
abandoned. Here Burke’s memorandum is totally silent as to the
several substantive grounds advanced by Hunt to torpedo her state
law retaliatory discharge claim. Hence that claim has been
abandoned, and Hunt’s summary judgment motion is granted as to
that claim.

EMLA Claims

Enacted to “allow employees to take periods of leave from
their jobs for various health and family related reasons,” FMLA
bestows a number of entitlements on covered employees (Phelan v.
City of Chicago, 347 F.3d 679, 682-83 (7th Cir. 2003)). For
example, FMLA allows qualifying workers to take up to 12 weeks of
unpaid leave and guarantees them--with important limitations-~
reinstatement to the same or an equivalent employment position on
their return to work (Sections 2612(a), 2614(a)). In addition
the statute creates two distinct categories of protection for

those entitlements (King v. Preferred Tech. Group, 166 F.3d 887,

891 (7th Cir. 1999)): Employers may not “interfere with” FMLA
rights, either (1) by substantively denying those rights outright
or (2) by retaliating or otherwise discriminating against
employees who exercise those rights (id.). Burke claims that

Hunt violated her FMLA rights by engaging in both varieties of

10


facility”--but also the number of Hunt employees assigned to an
account and the capacities in which they serve (id. 9796-8).

Burke began working for Hunt in August 1999 as an
“administrative assistant,” performing billing, invoicing,
payroll and other general administrative duties “as needed” (id.
q99-10). During the term of her employment (which ended on
March 7, 2004) Burke worked on a number of accounts, including
Home Depot, Wal-Mart and finally Weyerhaeuser, moving among
locations as the clients’ needs dictated (id. 7197111-18). On at
least two occasions before she took her final position with the
Weyerhaeuser account, her departure from a position was triggered
by the client’s decision to eliminate that position (id. 9914,
17). Although there are generally only 7 to 10 administrative
assistant positions in all of Hunt’s Chicago area operations (id.
q6), on each of those two occasions there fortunately happened to
be a position open on another account, so that Burke was able to
transfer to a new client (id. 979715, 18).

Burke’s final transfer occurred in March 2003, when her
position on a Wal-Mart account was eliminated by the client and
she was able to move to an equivalent opening on the Weyerhaeuser
account (H. St. 917-18, 23). Before Burke’s arrival the
Weyerhaeuser account had been supported by two Hunt employees:
Account Manager John Copenhaver (“Copenhaver”) and ex-

Weyerhaeuser employee Bob Grube (“Grube”) (id. 9919-20), the


particular requirements of LR 56.1, but also--at least as to the
few potentially relevant assertions that she advances--fail to
meet basic evidentiary requirements. Because of their
substantive deficiency rather than on procedural noncompliance
grounds, this Court has rejected Burke’s evidentiary submissions
and has accepted Hunt’s statement of facts as uncontradicted.
Thus the following Background section is based solely on Hunt’s
statement of facts.°
Background

Hunt is a “national multi-model containerized transport
company” that holds trucking accounts with various clients
nationwide (H. St. 992, 5). Larger clients are serviced by
Hunt’s “dedicated accounts” division (id. 96). Staffing and
other operational details of such accounts are prescribed by
individual contracts between Hunt and its clients (id. 9916-8).
Depending on a client’s “needs and desires,” the contractual
specifics can vary: not only the location of Hunt’s

employees--sometimes they are based “on-site at the client’s

3. In a sense the just-completed analysis merely knocks down

a straw man, for there is no need to quibble over whether Burke’s
undefined usage of “shortly after” in her affidavit actually
contradicts her deposition testimony, so as to call for outright
rejection of the affidavit. As the later discussion in the text
reflects, the statute and its supporting Regulation equate the
employee’s on-leave status to that of an employee who was working
during the same time frame--and there is no dispute as to the
nonexistence of an equivalent open position at the time of
Burke’s termination.


had an administrative assistant supporting it.

While those changes were in the works, Burke--who had become
pregnant in the spring of 2003--went into premature labor on
December 15, 2003 (H. St. 431). Although she did not give birth
that day, Burke was put on bed rest and immediately applied for
FMLA leave (id.). Hunt approved her request, and Burke remained
on leave--taking the full 12 weeks to which FMLA entitied
her--until March 7, 2004 (id. 9132). On December 31, 2003 Hunt
told Burke that her position had been eliminated (due to the
renegotiation of the Weyerhaeuser contract) and that it would try
to find her an alternative administrative assistant position in
the Chicago area (id. 116, 33). Even after the position was
eliminated, Hunt continued to pay Burke 50% of her salary
throughout the remainder of her leave (id. 934). Unfortunately
no such position became available over the next few months (id.
q935, 39-41, 43), and on March 7, 2004--the end of Burke’s
leave--Hunt terminated her (id. 136).

On April 14, 2004 Burke filed this suit. After discovery
had been closed Hunt moved for summary judgment, prompting this
memorandum opinion and order.*

Qne Threshold Nonissue

Palmer v. Marion County, 327 F.3d 588, $97-99 (7 Cir.

“ In the midst of discovery, in her own deposition Burke

confirmed that she had voluntarily dismissed her state law claim
of intentional infliction of emotional distress (B. Dep. 128).

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIN BURKE, )
)
Plaintiff,
)
v. ) No. 04 C 2678

)
J.B. HUNT TRANSPORT SERVICES, INC.,}
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Erin Burke (“Burke”) initially brought a four count
Complaint against J.B. Hunt Transport, Inc. (“Hunt”). Counts IT
and II still charge Hunt with violations of the Family Medical
Leave Act of 1993 (“FMLA,” 29 U.S.C. §§2601 to 2654),' while
Counts III and IV had asserted state law claims of intentional
infliction of emotional distress and retaliatory discharge.
After the completion of discovery, during the course of which
Burke voluntarily dismissed her Count III claim, Hunt brought a
Fed. R. Civ. P. (‘Rule’) 56 motion for summary judgment on the
three remaining claims. For the reasons set out in this
memorandum opinion and order, Hunt’s motion is granted as to all
remaining claims and this action is dismissed.

Summary Judgment Standards

Familiar Rule 56 principles impose on movant Hunt the burden

of establishing the lack of a genuine issue of material fact

1 All further references to FMLA provisions will take the

form “Section --,” omitting the prefatory “29 U.S.C.”


elimination of her position.® Because Burke would have been
terminated--obviously with no right of reinstatement to her
nonexistent prior job and, equally obviously, with no such right
as to any nonexistent equivalent alternative job--even if she had
not been on FMLA leave, Hunt did not violate FMLA by failing to
have reinstated her once she had been terminated (see, €.9-,

Ilhardt_v. Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir. 1997),

applying Reg. §825.216(a) (1)).®

Count II: Retaliation

Burke’s remaining claim charges Hunt with a retaliatory
termination because she took FMLA leave, thereby violating

Section 2615(a)(2). As Burke correctly acknowledges, such claims

5 Although not all Circuits agree (see, ©.9-, Smith v.
Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 962-64 (10th
Cir. 2002), our Court of Appeals places the ultimate burden
squarely on the employee to present evidence that he or she would
have received a given benefit if not on FMLA leave(see, €.g-,
Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th Cir.
2000)}. It need scarcely be said that this Court must decline
Burke’s invitation to ignore such binding precedent (B. Mem.
7)--but even if the burden had been shifted to Hunt, it has
plainly shown that there is no genuine factual dispute on the
issue.

6 If anything, Hunt appears to have gone above and beyond

its FMLA duties in its treatment of Burke. Under Reg.
§825.216(a) (1}, when an employee is legitimately laid off and her
employment is terminated during FMLA leave, the employer has no
obligation to continue that leave beyond the termination date.
Nevertheless, although her position was eliminated two weeks into
her leave, Hunt allowed Burke her full 12 weeks, paying her 50%
of her salary the entire time (remember that FMLA assures a right
to take leave, but not leave with pay) and affording her an
extended window during which an alternative job might open up.

12


prohibited action.

Count I: Denial of FMLA Rights

In Count I Burke complains of Hunt’s failure to reinstate
her, either to her old position or to one of “equivalent
employment benefits, pay, and other terms and conditions of

employment, “

on her return from FMLA leave (Section 2614(a)(1)).
While the FMLA does generally guarantee such reinstatement
(Phelan, 347 F.3d at 683), Hunt has correctly responded that
there is an exception to that “guaranty” and that its own actions
gualify for that exception.

FMLA itself (Section 2614(a)(3)) and the relevant federal
regulations (29 C.F.R. (“Reg.”) §825.216(a)) make clear that the
FMLA extends to employees no greater employment rights than they
would have had if they had been working during the FMLA leave
period. And it is undisputed that Burke’s termination would have
taken place even if she had been working rather than taking
leave: Her job was eliminated due to Weyerhaeuser’s decision to
restructure its contract with Hunt, a restructuring that removed
Burke’s position for efficiency reasons.

No evidence even suggests that the reasons for

Weyerhaeuser’s decision were anything but legitimate or, indeed,

that Burke’s taking FMLA leave had any influence at all on the

11


latter of whom had originally been primarily responsible for the
“load planning and routing” of Hunt trucks (id. q20). But in
early 2003 Weyerhaeuser requested that Grube instead drive a
truck full time--a move made because Weyerhaeuser thought it
would be “more efficient and cost-effective”--leaving Copenhaver
to pick up Grube’s planning and routing responsibilities (id.
G21). Because Weyerhaeuser and Hunt agreed that the account
needed an administrative assistant to help lighten Copenhaver’s
load, Burke (then newly laid off from the Wal-Mart account) was
given the position (id. §22-23). Weyerhaeuser paid her salary as
part of the contract it negotiated with Hunt (id. 924).

In September 2003, soon after Burke’s move to the
Weyerhaeuser account, Weyerhaeuser approached Hunt to discuss yet
another restructuring of its account, again “in an effort to be
more efficient and save money” (H. St. 925). Under the
renegotiation of the Weyerhaeuser-Hunt contract that followed,
effective December 31, 2003 Weyeraeuser took the “load planning
and routing” functions of the account “in-house” by giving those
functions back to Grube and hiring him directly as its employee
(id. 9926-27). Because Copenhaver’s load was lightened by that
restructuring, he reassumed his old administrative tasks, and the
administrative assistant position held by Burke was eliminated
(id. 9928-30). Even as of the considerably later time of filing

of Hunt’s Rule 56 motion, Weyerhaeuser’s account had never again


find administrative assistants new jobs when their old ones were
eliminated and (2) that “shortly after” Burke was terminated an
administrative assistant opening became available but was not
offered to Burke (B. Aff. T710-12)--do not meet the Rule 56(e)
test of admissibility in any case.

For example, Burke offers no evidentiary support for her
conclusory characterization of a Hunt “policy and practice” as to
laid-off administrative assistants (B. Aff. 410). Such a naked
unsubstantiated assertion--apparently based solely on the fact
that her own past layoffs had fortuitously occurred when
alternative positions happened to be open (id. 97912-7)--does not
qualify under the Federal Rules of Evidence (“Evid. Rules”) (see

Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7'" Cir. 1994)).

Similarly, Burke’s claim that there was an administrative
assistant position open “shortly after” she was terminated also
flunks the admissibility test, both because it is at odds with
her own earlier deposition testimony and, more critically,
because it is hearsay. Burke testified in her deposition that
she had no reason to believe that Hunt had any administrative
assistant openings either during her FMLA leave or in the month
after her termination (B. Dep. 126). At best that puts an
extraordinary strain on her later affidavit’s language asserting
that such a position was open “shortly after [she was] fired”

(see, as to the effect of tension between deposition testimony


judgment,’ this Court grants Hunt’s motion for summary judgment
as to Burke’s retaliation claim too.
Conclusion

For the reasons stated in this opinion, this Court holds
that this case is totally lacking in any genuine issue of
material fact, so that Hunt is entitled to a judgment as a matter
of law as to each of Burke’s three remaining claims--her
abandoned state law retaliatory discharge claim and her two FMLA-
related claims, one for the denial of statutory rights and the
other for retaliation. Hunt’s motion for summary judgment is

therefore granted on all counts, and this action is dismissed.

Milton I. Shadur
Senior United States District Judge

Date: January 30, 2006

° Burke’s Mem. 7-11 has also advanced a more general--and

equally unpersuasive--defense of her retaliation claim. That
discussion--incongruously inserted at the end of what purports to
be Burke’s discussion of her denial claim--begins by offering an
eclectic survey of extra-jurisdictional caselaw addressing
retaliatory discharge claims in primarily non-FMLA contexts. It
then goes on to contend at Mem. 10--presumably drawing on those
cases~-~that because (1) it was Hunt’s “practice” to find new
positions for administrative assistants whose old positions had
been eliminated and (2) there was a “suitable alternative job
opening that [Hunt] could have reinstated her into,” Burke has
established a genuine issue of fact to stave off summary
judgment. Even if those cases could actually support such a
claim--scarcely a clear proposition--Burke is once again undone
by her evidentiary failures. As already shown, she has brought
no evidence that Hunt had any such practice or that there was an
available alternative job opening into which she could have been
placed.

15


of LR 56.1’s function, our Court of Appeals has consistently made
it clear that District Courts are entitled to strict adherence to
LR 56.1 and may penalize violations by disregarding a party’s
noncompliant factual statements or by simply adopting the
opposition’s statements (see, e.g., Ammons, 368 F.3d at 817-18;

Brengettcy v. Horton, 423 F.3d 674, 681 (7'" Cir. 2005)).

While Hunt has properly filed its own initial statement,’
Burke has inexplicably failed to file the required response to
that statement. Instead Burke’s only evidentiary submission has
been a 12-paragraph affidavit attached to her responsive
memorandum--not at all the specific “paragraph-by-paragraph”

response mandated by LR 56.1(b) (3) (A) (see FIC v. Bay Area Bus.

Council, Inc., 423 F.3d 627, 633 (7 Cir. 2005)).

This Court will not automatically adopt the strict (though
caselaw-authorized) approach of rejecting that offering because
of its noncompliance with LR 56.1, treating it instead as an
attempted Rule 56(e) submission. But even if viewed through that
more generous lens, most of its statements merely echo Hunt’s own
statements (compare B. Aff. qd1-9 with H. St. @11, 9-18), and
those few assertions that actually offer anything of potential

import--stating (1) that it was Hunt’s “policy and practice” to

2. This opinion will cite to that statement as “H. St. I--.”

As for Burke's deposition and affidavit, they are respectively
cited as “B. Dep. --” and “B. Aff. d--.” Finally, the same SH.”
and “B.” references will apply to the parties’ legal memoranda
{each cited “Mem.”).


(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986}). For
that purpose this Court must "consider the evidentiary record in
the light most favorable to the nonmoving party...and draw all

reasonable inferences in his favor” (Lesch v. Crown Cork & Seal

Co., 282 F.3d 467, 471 (7th Cir. 2002)). That said, to avoid
summary judgment a nonmovant still “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)). In the end, summary judgment is
warranted only if a reasonable jury could not return a verdict

for the nonmovant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)).
Evidentiary Issues

In an effort to highlight the existence or nonexistence of
material factual disputes, this District Court’s LR 56.1 requires
both (1) that the movant file a “statement of material facts”
organized by numbered paragraphs, each with specific citation to
the evidentiary record (LR 56.1(a)(3)), and (2) that the
nonmovant file a paragraph-by-paragraph response to that
statement, also with specific record citations (LR
56.1(b) (3) (A)). Although the nonmovant may of course assert
“additional facts” as well, that must be done in a separate

statement (LR 56.1(b) (3) (B); Ammons v. Aramark Unif. Servs.,

Inc., 368 F.3d 809, 817 (7'" Cir. 2004)). Given the importance


are analyzed under the same framework used for evaluation of
retaliation claims under other employment statutes, such as Title

VII (Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.

2004)). To that end Burke has invoked the familiar “purden—
shifting” approach as adapted by our Court of Appeals from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to the

retaliation arena (see Stone v. City of Indianapolis Pub. Utils.

Div., 281 F.3d 640, 642 (7th Cir. 2002)). That approach first
requires an employee to establish a multi-element prima facie

case (Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.

2003)).’ That having been done, the burden of production shifts
to the employer to offer up a “legitimate non-invidious reason”
for its adverse employment action (id.). Then the burden of
production shifts back to the employee (who always bears the

burden of persuasion) to show® the employer’s proffered reason or

” In that regard Burke has bitten off more than she needs

to chew. While her Mem. 2 accurately quotes King, 166 F.3d at
892 as requiring a showing of a “causal connection between the
employee’s protected activity and the employer’s adverse
employment action,” post-King caselaw (see, e.g., Stone, 281 F.3d
at 643-44) repeatedly teaches that a plaintiff proceeding under
the McDonnell Douglas burden-shifting method need not establish
causation as part of her prima facie case.

* Although the text speaks about what an employee must
“establish” or “persuade” or “show,” those terms merely echo the
terminology in the caselaw and are not the standards applied
here. This Court has instead applied the appropriate Rule 56
standard, imposing on Burke the lesser burden of identifying a
genuine issue of material fact as to the essential elements of
her case.

13