In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2509

VIRGINIA HUNT,

Plaintiff-Appellant,

v.

DAVITA, INC.,

Defendant-Appellee.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 10-cv-00602—G. Patrick Murphy, Judge.

ARGUED JANUARY 13, 2012—DECIDED MAY 4, 2012

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Virginia Hunt had worked

for defendant DaVita, Inc. for nineteen years when she

had a heart attack requiring bypass surgery and went on

medical leave. While on leave, she also received treatment for carpal tunnel syndrome. After six months of

leave, DaVita terminated her employment pursuant to

its established leave policy. DaVita told Hunt that she

was eligible for re-hire to her position once she was
2 No. 11-2509

medically cleared to work again. Hunt then filed a lawsuit in state court alleging that she was fired in retaliation for her intention to file a workers’ compensation

claim related to her carpal tunnel syndrome. DaVita

removed the lawsuit to the United States District Court,

which granted summary judgment for DaVita on the

retaliation claims. We affirm. Hunt has not offered any

evidence that the relevant decision-maker even knew

of her potential workers’ compensation claim or was

influenced by anyone who did know, so Hunt cannot

show an act in retaliation.

Hunt first raises a jurisdictional issue, arguing that

the district court should have remanded the case to

state court for failure to satisfy the amount-in-controversy requirement for federal diversity jurisdiction

under 28 U.S.C. § 1332. After the removal, Hunt disavowed and offered to return any damages that

might be awarded in excess of $75,000. The district

court did not err when it found, consistent with LM Ins.

Corp. v. Spaulding Enterprises Inc., 533 F.3d 542, 547 (7th

Cir. 2008), that Hunt had not shown it was “legally

certain” that the amount in controversy would not exceed

$75,000. Hunt sought punitive damages in her complaint,

and even a modest punitive-to-compensatory damages

ratio of two or three to one could have led to an award in

excess of $75,000. In addition, as the district court correctly noted, Hunt’s post-removal disclaimer of damages

exceeding $75,000 could not defeat federal jurisdiction

after a proper removal based on the complaint. See

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.

283, 292 (1938) (post-removal amendment to complaint
No. 11-2509 3

or stipulation limiting damages did not require remand);

Back Doctors Ltd. v. Metropolitan Property and Casualty

Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011) (post-removal

disclaimer limiting damages did not permit remand);

Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424,

429 (7th Cir. 1997) (post-removal stipulation to limit

damages did not defeat diversity jurisdiction); In re

Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (granting

writ of mandamus to rescind remand order that had

been issued based on post-removal stipulation to limit

damages). The district court had subject matter jurisdiction here.

Turning to the merits, the relevant facts are straightforward and undisputed, and the district court explained

them carefully. Hunt began her leave on August 17,

2009, and shortly after that, she acknowledged receipt of

a notice concerning DaVita’s leave policies. She was

given three months of leave under DaVita’s Family Medical Leave Act policy, and then another three months

of leave under DaVita’s separate Non-Work-Related

Medical Leave of Absence policy. After the total of six

months had passed, Hunt was still not cleared by her

doctor to return to work and did not return. Pursuant to

an established company policy, DaVita notified her that

her employment was terminated effective February 28,

2010. Hunt’s doctor cleared her to return to work later,

on May 5, 2010. During this entire time a temporary

worker filled in for Hunt at DaVita, but the worker

was not permanently assigned to Hunt’s position until

August 21, 2010 — a full year after Hunt first went on

leave.
4 No. 11-2509

While Hunt was on leave recovering from her heart

surgery, she also sought treatment for carpal

tunnel syndrome. She filed a workers’ compensation

claim based on that condition, but not until March 19,

2010 — several weeks after DaVita had terminated her.

Hunt testified that she had previously told her

supervisor, Beth Thompson, about her belief that the

numbness in her hands was work-related. There is no

more specific evidence in the record suggesting that

Thompson actually knew of Hunt’s intention to file a

claim. Most important, though, there is no evidence that

Thompson had anything to do with Hunt’s termination.

The termination was effected by Kathy Velasquez, a

senior disability specialist who worked in a different

DaVita office in Denver. Velasquez testified that she

never met or spoke with Hunt, did not consult with

anyone else at DaVita about the termination, and made

the termination decision based entirely on the fact

that Hunt had exhausted all of the leave allowed

under DaVita’s established policies. Hunt did not offer

evidence contradicting this testimony, asserting only

her belief that there was some retaliatory intent. Hunt

also conceded that DaVita applied the same leave

policy, without exception, to terminate more than three

hundred other eligible employees who ran out of leave

between January 1, 2009 and March 3, 2010, regardless

of whether leave was the result of a work-related condition or not.

We review a grant of summary judgment de novo.

Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d 697,

705 (7th Cir. 2011). Hunt is an “at-will” employee under
No. 11-2509 5

Illinois law, so DaVita could have fired her for a good

reason, no reason, or a bad reason, as long as the

reason was not prohibited by law. For an at-will

employee, failure to return to work after medical leave

expires is not a reason prohibited by Illinois law.

Hartlein v. Illinois Power Co., 601 N.E.2d 720, 728 (Ill.

1992) (“Illinois law does not obligate an employer to

retain an at-will employee who is medically unable to

return to his assigned position”). An employer may not,

however, fire an employee to retaliate against her for

her pursuit (or anticipated pursuit) of a workers’ compensation claim. Id.; Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357

(Ill. 1978). To defeat DaVita’s motion for summary judgment, Hunt needed to raise a genuine issue of material

fact as to whether decision-maker Velasquez intended

to retaliate against her for considering such a claim. But

logic dictates that any inference of retaliatory intent

must be based on the alleged retaliator’s knowledge

of the action allegedly retaliated for. E.g., Hiatt v.

Rockwell International Corp., 26 F.3d 761, 769 (7th Cir. 1994)

(“Evidence that those responsible for an employee’s

termination knew that he intended to file, or, as in

this case had filed, a workers’ compensation claim is

essential to a retaliatory discharge action under Illinois

law.”), citing Marin v. American Meat Packing Co., 562

N.E.2d 282, 286 (Ill. App. 1990). Hunt offers speculation

but no actual evidence suggesting that Velasquez or

anyone else involved in the decision even knew of her

intended workers’ compensation claim. Without such

evidence, Hunt’s retaliation claim fails as a matter of law.

To avoid the consequences of Velasquez’s lack of knowledge about any workers’ compensation claim, Hunt
6 No. 11-2509

argues that DaVita’s leave policy is retaliatory on its face.

DaVita’s policy does not distinguish between employees

on leave because of compensable work-related illnesses

and injuries and employees on leave for other medical

reasons. Hunt has not explained how a policy that is

applied neutrally and without exception to hundreds

of employees each year — and in this case without any

knowledge of the circumstances of the leave taken or

whether the leave stemmed from an injury or illness

that might be compensable — can be described as retaliatory. It is well established that neutrally-applied leave

policies of this sort are permissible. See Dotson v. BRP

U.S. Inc., 520 F.3d 703, 707 (7th Cir. 2008) (“an employer

may fire an employee for excess absenteeism, even if

the absenteeism is caused by a compensable injury”),

quoting Hartlein, 601 N.E.2d at 728. This court has approved policies stricter than DaVita’s. See, e.g., Dotson,

520 F.3d at 707-08 (automatic termination after exhaustion of minimum twelve-week FMLA leave).

Because employers are entitled to terminate at-will

employees who do not return to work after their leave

expires, it cannot be unlawful retaliation to terminate

uniformly any employees because they did not return to

work after their leave expired. Hunt cannot make up

for the lack of evidence of individual retaliatory intent

by alleging (again without evidence) that DaVita’s

entire leave policy was adopted to retaliate against employees who take leave. Hunt’s only suggested alternative to DaVita’s current leave policy would be a policy

of indefinite retention, extending leave for as long as

medically necessary. There is no legal basis here to
No. 11-2509 7

compel DaVita to adopt such a policy; in fact, the company’s policy already seems to be more liberal than

required by the Family and Medical Leave Act. Without

evidence “that the termination was motivated by an

unlawful intent to retaliate against the employee for

exercising a statutory right to workers’ compensation

benefits,” Dotson, 520 F.3d at 707, plaintiff Hunt has

failed to raise a genuine issue of material fact. Summary

judgment was properly entered in favor of DaVita.

Two other matters raised by the parties here warrant

brief discussion. First, Hunt argues that the district court

abused its discretion by refusing to strike the deposition testimony of decision-maker Velasquez based on

objectionable conduct by DaVita’s counsel during the

deposition. During the deposition, DaVita’s counsel

conferred privately with the witness about exhibits as

they were presented, allegedly pointing out policy language that plaintiff’s counsel properly asked the witness

herself to identify. Hunt further asserts that substantive discussions of testimony occurred in private conferences during breaks. DaVita’s counsel responded that

he was merely assisting and not suggesting testimony,

and he claims no memory of whether private conferences

occurred.

The conduct reflected in this record, at a minimum

pointing out passages of documents as they are introduced to the witness, was not appropriate or professional. The fact-finding purpose of a deposition requires

testimony from the witness, not from counsel, and without suggestions from counsel. Coaching and private
8 No. 11-2509

Hunt did not file a timely objection to the magistrate 1

judge’s non-dispositive pretrial discovery order as required by

28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(a).

Such a failure to object ordinarily waives the right to object on

appeal. E.g., United States v. Hernandez-Rivas, 348 F.3d 595, 598

(7th Cir. 2003), quoting United States v. Brown, 79 F.3d 1499,

1503 (7th Cir. 1996); Video Views, Inc. v. Studio 21, Ltd., 797

F.2d 538, 539-40 (7th Cir. 1986). This waiver rule is not jurisdictional, however, see Video Views, 797 F.2d at 540, and so is

subject to a limited equitable exception when waiver would

otherwise defeat the “ends of justice,” Brown, 79 F.3d at 1504,

and may itself be waived by the prevailing party. DaVita

waived the waiver here, so we address the issue on its merits.

conferences (on issues other than privilege) that would

be inappropriate during trial testimony are not

excused during a deposition merely because the judge

is not in the room.1

District courts have broad discretion in supervising

discovery, including deciding whether and how to

sanction such misconduct, for they are much closer to

the management of the case and the host of intangible

and equitable factors that may be relevant in exercising

such discretion. E.g., Park v. City of Chicago, 297 F.3d

606, 614 (7th Cir. 2002) (finding no abuse of discretion

in choice not to impose sanction for discovery failure);

Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 670-71

(7th Cir. 1996) (finding no abuse of discretion in choice

to impose sanction for discovery failure). We defer to

district courts’ contemporaneous efforts to police discovery, reviewing only for abuse of discretion, of
No. 11-2509 9

Hunt also complains that the district court allowed DaVita to 2

file a reply brief. Southern District of Illinois Local Rule 7.1(c)(2)

allows for such briefs “in exceptional circumstances.” We

have repeatedly held that district courts are entitled to considerable deference in the interpretation and application of

their local rules. E.g., Stevo v. Frasor, 662 F.3d 880, 886-87

(7th Cir. 2011); Harmon v. OKI Systems, 115 F.3d 477, 481 (7th

Cir. 1997). No abuse of discretion occurred here.

which there is no hint here. The magistrate judge determined that the conduct did not actually impede the

purpose of the deposition. He did not abuse his discretion by refusing to strike the relevant testimony or to

apply other sanctions.2

Second, DaVita suggested in the conclusion of its appellate brief that Hunt’s arguments on appeal are so

frivolous that we should order her to show cause why

she should not be sanctioned. See Greviskes v. Universities Research Ass’n, Inc., 417 F.3d 752, 760-61 (7th Cir.

2005). Since 1994, Federal Rule of Appellate Procedure 38

has authorized such sanctions only after either “a separately filed motion or notice from the court and a reasonable opportunity to respond.” DaVita could have

filed such a motion but did not, choosing instead merely

to ask this court to launch the sanctions process. We

decline to do so. We see no need to take a step that

DaVita itself could have taken, albeit subject to the

caution that a groundless request for Rule 38 sanctions

may itself be sanctionable. See Meeks v. Jewel Cos., 845

F.2d 1421, 1422 (7th Cir. 1988) (denying sanctions

against appellant and declining to award appellate costs
10 No. 11-2509

as modest sanction for frivolous request for sanctions);

see also Foy v. First National Bank of Elkhart, 868 F.2d

251, 258 (7th Cir. 1989) (awarding attorney fees

incurred in defending against a frivolous request for

sanctions). Also, there is certainly an equitable element to sanctions issues. In view of the behavior of

DaVita’s counsel during the Velasquez deposition, we

would not be inclined to exercise our discretion to

impose sanctions on only one side of this lawsuit. In

any event, Hunt’s arguments on appeal were weak but

fell short of frivolous.

The judgment of the district court is AFFIRMED.

5-4-12