Dallefeld v. The Clubs At River City, Inc.

Filing 29

ORDER AND OPINION entered by Chief Judge James E. Shadid on 7/14/2017. For the reasons set forth above, questions of fact exist as to whether the Plaintiff provided the Defendant with notice of FMLA leave, whether his injury was sufficient to meet th e requirements of the FMLA and ADA, how long he was injured, whether he requested an accommodation, and the reason for his termination. As such, these issues are appropriate for the finder of fact to resolve. Accordingly, the Defendant's Motion for Summary Judgment 22 is respectfully denied. SEE FULL WRITTEN ORDER AND OPINION. (JS, ilcd)

E-FILED

Friday, 14 July, 2017 02:58:42 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JASON DALLEFELD,
Plaintiff,
Case No. 1:15-cv-01244-JES-JEH
v.
THE CLUBS AT RIVER CITY, INC.,
Defendant.

ORDER AND OPINION
Now before the Court is the Defendant, The Clubs At River City, Inc.’s, Motion for
Summary Judgment. Doc. 22. The Plaintiff also moves to strike paragraphs of the Supplemental
Declaration of Lisbeth Robinson. Doc. 27. This matter is fully briefed, and for the reasons set
forth below, the Motion for Summary Judgment is DENIED.
Background
The Plaintiff, Jason Dallefeld (“Dallefeld”), worked for the Defendant, The Clubs at
River City, Inc. (“The Clubs”), since November 2012. He became a full time employee in March
2013. Doc. 1, p. 2. Dallefeld was the Director of Membership Sales and his duties included
giving tours, selling memberships, keeping an eye on The Clubs and making sure other
employees showed up for work. Dallefeld reported to Lisbeth “Lizzy” Robinson and Dan
O’Connell at The Clubs. Robinson is the business manager at The Clubs, and handled FMLA
leave for employees. O’Connell is the President of The Clubs. Relevant to the case at hand,
Dallefeld’s employment with The Clubs was terminated in June 2014.

1

Before his employment at The Clubs, the Plaintiff injured his right knee in 2009 at his
previous job.1 Dallefeld first consulted Dr. Blair Rhode for his knee issues in July 2012.
Dallefeld continued to see Dr. Rhode until January 2015. Doc. 25-2, p. 3. Dr. Rhode suggested
surgery. Dr. Rhode testified that Dallefeld could not afford the surgery or the time away from
work to recover from the surgery. Dallefeld informed O’Connell and Robinson about his knee
injury. Dallefeld sometimes walked with a limp at his job.
1. Workers’ Compensation Claims
Dallefeld filed workers’ compensation claims through counsel on March 12, 2014. The
Defendant was notified about these claims for the four injuries he alleged were work-related.
Robinson testified that she was “perplexed” when she received notification of his workers’
compensation claims and O’Connell testified that he was upset that Dallefeld filed these through
counsel.
2. Work Status Reports
Prior to his termination in June 2014, the Plaintiff suffered injuries to his knee while at
work in September 2013, January 2014, February 2014, and March 2014, resulting in a right
lateral meniscus tear. According to Dallefeld, he discussed these incidents with Robinson and
sometimes O’Connell. O’Connell’s file of First Reports of Injury include Dallefeld’s first reports
on injury for September 2013, January 2014, February 2014, and March 2014.2 In September
2013, Dallefeld was injured at work due to slipping on a water collecting mat that was placed on
tiled floor. He injured his knee again at work the following January and February, although he

Dallefeld was injured while working at Five Star Fitness and filed a workers’ compensation claim. Dallefeld’s
workers’ compensation benefits claim was still pending against Five Star Fitness, where he originally injured his
right knee, when he was deposed. Doc. 25-1, p. 8.
2
Defendant does not dispute this, but see 25-4, p. 10. It is unclear whether Dallefeld gave these to either O’Connell
or Robinson, but Robinson had access to the files to turn into the workers’ compensation insurance. Id.
1

2

did not miss work. On March 5, 2014, he injured his right knee again while descending stairs.
For this accident, Robinson retrieved ice for his knee, the knee was swollen, and he had to
elevate it. The Plaintiff reported these injuries as work-related injuries. (See Doc. 26, p. 6; Doc.
25-4, p. 9).
Dallefeld did not miss work after these incidents and remained on full duty until the
March 2014 injury. The worst injury, according to the Plaintiff, was the March 2014 injury.
Although disputed by the Dallefeld, the Defendant maintains that Dallefeld continued to lift
weights at The Clubs after his injuries, even the March 2014 injury. On March 12, Dr. Rhode
initially kept Dallefeld on full duty, but on March 26, placed him off duty. Dallefeld worked
between March 12 and March 26. The parties dispute whether or not Dallefeld requested to be
taken off duty and the reasons why Dr. Rhode took him off full duty. Doc. 25-1, p.13. Dr. Rhode
testified that the March injury aggravated Dallefeld’s symptoms. The Defendant does not dispute
that after this injury, Dallefeld “had a hard time moving around, could not use the bathroom
comfortably and was laid upon the couch.” Doc. 25, p. 5.
Dr. Rhode gave Dallefeld return-to-work-slips or work status reports that provided a
work status of light duty, full duty, or modified duty. Dr. Rhode maintained Dallefeld on full
duty from July 25, 2012 until he was put off duty on March 26, 2014. When Dallefeld was
placed off duty on March 26, the planned return to fully duty was six to eight weeks after
operation. Robinson acknowledges that she was given a copy of the off duty report. According to
Dallefeld, his knee was swollen, he was limping, and he was not able to walk. On April 1, 2014,
Dallefeld left for Florida with his then-girlfriend and others. He disputes how much he drove on
the trip.

3

Robinson asked Dallefeld to come back to work, and according to Dallefeld’s testimony,
The Clubs’ attorney told Dallefeld’s workers’ compensation attorney that The Clubs will follow
his light duty if he could obtain that. Robinson was filling in for him at work. At some point,
Robinson asked him if he could give tours, sit at his desk, and answer the phone. Dallefeld was
put on modified duty by Dr. Rhode on May 21, 2014, after Dallefeld spoke with Robinson about
coming back to work. Dr. Rhode gave him a lifting limit. In explaining to Dr. Rhode that he
could return to work if he had modified duty, Dallefeld told Dr. Rhode that he could sit at his
desk and prop his leg up. According to Dallefeld, he went to Robinson, who handled the
employee requests for FMLA leave, with the new modified duty slip and she seemed happy, but
O’Connell had to approve his return to work. At that time, O’Connell was out of the state.
Robinson and Dallefeld both testified that after O’Connell’s return, O’Connell seemed to avoid
Dallefeld to discuss returning to work. Doc. 25-1, p. 15-16.
A few days after Dallefeld texted O’Connell to ask if he could come back to work, all
three met on June 2, 2014 for a meeting. At the meeting, Robinson and O’Connell were both
present, and O’Connell told Dallefeld to “go have the surgery.”3 O’Connell testified that he
never received the May 2014 work status report that Dallefeld could go on light duty. Doc. 25-4,
p. 11. Although his termination was not discussed at the meeting, O’Connell sent a termination
letter with a June 1, 2014 date.4 Doc. 25-11.
O’Connell testified that neither Dallefeld’s decision to file a workers’ compensation
claim nor his hiring a lawyer to file the claim played a role in the decision to terminated his
employment. Dallefeld was not terminated for disciplinary or performance reasons, and no

For context, Dallefeld testified that O’Connell stated the following: “And he said, Oh, go ahead and have the
surgery. We have it covered. We have a couple employees taking care of it, you know. Everybody is working
together, I guess, to cover it until you get done. Get the surgery, and we’ll take care of it.” Doc. 25-1, p. 19.
4
As aside note, on May 25, 2014, Dallefeld applied for unemployment insurance benefits.
3

4

written disciplinary actions were taken against him during his employment with the Defendant.
When asked about why Dallefeld was let go, O’Connell testified to the following:
His inability to be specific when his knee was going to be done, and we – he’d gone
and had a number of knee operations – knee examinations, and we could never
really get a straight answer what was going on from him.
Doc. 25-4, p. 9; O’Connell Dep at 93, ¶ 12-16.
Dr. Rhode placed Dallefeld off duty on June 4, 2014. In August 2014, after his surgery,
he was placed on modified light duty—with a lifting restriction—with planned full duty set at
four weeks.
3. FMLA Leave
During the relevant time periods, The Clubs offered family and medical leave to its
employees. The parties dispute whether Dallefeld requested leave under the Family and Medical
Leave Act (FMLA) pursuant to The Clubs’ policy. The parties also dispute whether The Clubs
permitted written and oral requests for medical leave. According to The Clubs’ policy:
1. A Request for FLMA [sic] Leave of Absence form must be completed by the
employee requesting leave and submitted to the Human Resource office 30 days
before commencement date. If 30 days’ notice is not possible, notice of a
request for FMLA leave must be given as soon as possible.
2. When the leave is due to any employee or family member’s serious health
condition, the employee must provide Human Resources with a Certification of
Serious Health Condition form completed by the healthcare provider.
3. While on leave, employees may be asked to obtain re-certification of the
medical condition and the continuing need for FMLA leave.
4. When the leave is for planned medical treatment, the employee must attempt to
schedule the treatment so as not to disrupt the company’s operations.
Dallefeld had been in meetings in which the FMLA policy was discussed. Dallefeld
testified that he never received an Employee Handbook when he worked at The Clubs and never
read it. Doc. 25-1, p. 16. He testified that he was present at meetings where it was discussed. He

5

testified that he understood that he was to give them notice but did not know exactly how FMLA
leave worked, and didn’t know there would be forms to sign. Id., p. 17.
Dallefeld remembers talking about FMLA leave with Robinson, but “there was never like
an actual topic of discussion at length. We talked about it, and then she’s like get back to work or
let’s get you on light-duty.” Doc. 25-1, p. 17. When asked if he remembered asking Robinson or
O’Connell about FMLA leave, he answered:
A. No, I can’t tell you yes or no on that. We discussed it. I don’t know if I brought
it up or not because, you know, Lizzy [Robinson] is really by the book. So, I
mean, if it was something that – you know, I couldn’t tell you.
Q. Do you remember dates of any such conversations?
A. No. It wasn’t a concern at that point, you know, it was –
Q. Do you remember discussing how Family and Medical Leave Act works? Was
that what the conversations were about?
A. No. I think it was just kind of an under – I mean, Lizzy was kind of like the HR
lady, so she knew the rules of it. I mean, she would direct me if I needed to do
something that I – you know, other than giving her the paperwork, I mean, if she
needed something, she would let me know.
Id.
Robinson testified that the FMLA leave requests should be in writing, but the individual
can request it any way they want. Doc. 25-3, p. 6-7. Specifically, when asked how an employee
requests leave, Robinson testified that: “It should be written, but they can request it however they
care to request it, and I would complete the paperwork for them and get the process started.” Id.
O’Connell testified that Dallefeld would have had to ask Robinson about FMLA leave
because she had the paperwork. Doc. 25-3, p. 11. Robinson also testified that Dallefeld would
have been eligible for FMLA leave when he brought her the March 2014 off-duty slip. Robinson
Dep. at 113; Doc. 25-3, p. 14. The Defendant does not dispute that Plaintiff was released to
modified duty in May 2014; however, the Defendant contends that this is immaterial, Dallefeld

6

did not request FMLA leave, Dallefeld had no legal right to return to light duty during FMLA
leave, and Dallefeld was shortly thereafter taken off work by his doctor. Doc. 25, p. 7.
4. Accommodation
The parties also dispute whether Dallefeld requested a reasonable accommodation under
the ADA. Dallefeld claims that he was incapacitated from March 26, 2014 through May 21,
2014, which is more than three consecutive calendar days; the Defendant disputes this. The
Defendant does not dispute that the Plaintiff’s right knee injury was a physical impairment and
physical disability during Dr. Rhode’s treatment. Doc. 26, p. 9. Text messages sent from
Dallefeld to O’Connell show that Dallefeld attempted to talk to him about returning to modified
duty. Doc. 25-7. The Defendant does not dispute that Dallefeld was able to perform his job
without limitation until Dr. Rhode took him off work on March 26, 2014 and does not dispute
that the Plaintiff was released to modified duty in May 2014. (Doc. 26, p. 7).
5. Procedural History
On June 15, 2015, the Plaintiff filed a Complaint, bringing claims under the Family and
Medical Leave Act (FMLA); Title I of the Americans with Disabilities Act (ADA) 42 U.S.C. §
12111; and Illinois common law retaliatory discharge, 820 ILCS § 305/1. (Doc. 1). Specifically,
the Plaintiff alleges that the Defendant interfered with his rights under the FMLA and the
Defendant retaliated against the Plaintiff for trying to exercise his FMLA rights; the Plaintiff
qualified as an individual with a physical disability within meaning of the ADA, and the
Defendant unlawfully refused him a reasonable accommodation and discharged him because of
his disability in violation of the ADA; and finally, the Defendant discharged the Plaintiff in
retaliation for exercising his rights under the Illinois Workers’ Compensation Act.

7

On March 14, 2017, the Defendant filed the instant Motion for Summary Judgment. The
Defendant argues that Dallefeld cannot establish a violation of the FMLA, cannot establish his
ADA claims, and cannot establish his claim of common law retaliatory discharge. The Plaintiff
opposes the Motion, and maintains that there are genuine issues of material act in this case
relating to his request for leave and a reasonable accommodation, as well as factual questions
regarding the reason for his termination. This order follows.5
Standard of Review
A motion for summary judgment will be granted where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). A material fact is one that might affect the outcome of the suit. Insolia v. Philip Morris,
Inc., 216 F.3d 596, 598-99 (7th Cir. 2000). The moving party may meet its burden of showing
an absence of material facts by demonstrating “that there is an absence of evidence to support the
non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving
party meets its burden, the non-moving party then has the burden of presenting specific facts to
show there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
On summary judgment, the inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at
588. Any disputed issues of fact are resolved against the moving party. GE v. Joiner, 552 U.S.
136, 143 (1997). The moving party has the responsibility of informing the Court of portions of
the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp., 477 U.S.

5

The Court reminds parties to review Local Rule 7.1(D) governing Motions for Summary Judgment prior to
submitting their briefs. In particular, facts should be numbered and citations should indicate exact locations of facts
and quotations in the record.

8

at 323. Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the
pleadings and produce evidence of a genuine issue for trial. Id. at 324. Where a proposed
statement of fact is supported by the record and not adequately rebutted, a court will accept that
statement as true for purposes of summary judgment; an adequate rebuttal requires a citation to
specific support in the record. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th
Cir. 1998). This Court must then determine whether there is a need for trial—whether, in other
words, there are any genuine issues that properly can be resolved only by a finder of fact because
they may be reasonably resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
Analysis
1. FMLA
The FMLA entitles eligible employees to twelve work-weeks of unpaid leave during any
twelve month period for serious health conditions. 29 U.S.C. § 2612(a)(l). Under the statute,
employers are prohibited from interference with, restraint of, or denial of the exercise or attempt
to exercise an employee's right to take leave, and the statute gives employees a cause of action if
such interference occurs. 29 U.S.C. §§ 2615(a)(l) & 2617. The FMLA also provides a remedy in
the event that an employee is discriminated against for having exercised his rights under the Act.
29 U.S.C. § 2615(a)(l) & (2).
To maintain this cause of action, a plaintiff must show: (1) he was eligible for protection
under the FMLA; (2) he was covered by the FMLA; (3) he was entitled to leave under the
FMLA; (4) he provided sufficient notice of his intent to take leave; and (5) the employer denied
him leave to which he was entitled. Ridings v. Riverside Medical Center, 537 F.3d 755, 761 (7th
Cir. 2008). Where an employee alleges that her employer deprived her of the FMLA's

9

substantive guarantees, “the employee must demonstrate by a preponderance of the evidence
only entitlement to the disputed leave . . . the intent of the employer is immaterial.” King v.
Preferred Technology Group, 166 F.3d 887, 891 (7th Cir. 1999).
a. Violation of FMLA
In Robinson’s deposition, she concedes that Dallefeld was eligible for FMLA and The
Clubs was covered by the FMLA. Next, the Plaintiff must show that he was entitled to leave
under the FMLA. An employee is entitled to FMLA leave if he suffers from “a serious health
condition that makes the employee unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D). A serious health condition may be one that involves
“continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). In order to meet this
definition, the health condition must include a period of incapacity of more than three
consecutive, full calendar days and any subsequent treatment or period of incapacity relating to
the condition. 29 C.F.R. § 825.115(a).
There is evidence in the record that the Plaintiff was treated by Dr. Rhode after his injury
during March 26, 2014 through May 21, 2014. The Plaintiff maintains that the March knee injury
“took [him] out” during this time and he could not move around with his swollen knee. The
Defendant disputes this because Dallefeld took a trip to Florida in April, and the Defendant
argues he drove some of the trip. Also, the Defendant contends that Dallefeld continued to lift
weights at The Clubs during this time period. Interestingly, the Defendant’s Reply states: “it is
far from clear that Dallefeld could not have done his job after March 26. (MSJ, Section D. pp. 45).” Doc. 26, p. 3. However, driving and lifting his arms does not definitively show that the
Plaintiff could complete all of his job responsibilities, such as giving tours. Thus, there is a
factual dispute as to Dallefeld was entitled to FMLA.

10

Next, an employee must provide sufficient notice of his intent to take FMLA leave. Pagel
v. TIN Inc., 695 F.3d 622, 628 (7th Cir. 2012). The FMLA’s notice requirements “are not
onerous” but rather require that the employee “provides information sufficient to show that he
likely has an FMLA-qualifying condition.” Burnett v. LFW Inc., 472 F.3d 471, 478-79 (7th Cir.
2006) (emphasis in original). Emphasizing that “the employee can be completely ignorant of the
benefits conferred by the Act,” the Court stated that “[a]n employee need not expressly mention
the FMLA in his leave request or otherwise invoke any of its provisions.” Id., quoting Stoops v.
One Call Commc’ns., 141 F.3d 309, 312 (7th Cir. 1998). Thus, notice inquiry is “fact-rich” and
“perhaps best resolved by the trier of fact.” Pagel, 695 F.3d at 628 (citations omitted).
Dallefeld argues that he provided information to The Clubs sufficient to show that he
likely has an FMLA-qualifying condition. It is undisputed that Robinson received the off duty
report from Dr. Rhode. Dallefeld testified that he remembered talking about FMLA leave with
Robinson, but “there was never like an actual topic of discussion at length.” Doc. 25-1, p. 17.
When asked if he remembered asking Robinson or O’Connell about FMLA leave, he answered:
“No, I can’t tell you yes or no on that. We discussed it. I don’t know if I brought it up or not
because, you know, Lizzy [Robinson] is really by the book. So, I mean, if it was something that
– you know, I couldn’t tell you.” Id.
The Defendant maintains that Dallefeld did not provide sufficient notice of his intent to
take leave or provide The Clubs with 30 days advance notice pursuant to 29 C.F.R. § 825.302(a)
and the company Employee Handbook. The Clubs’ policy stated that the FMLA leave form
“must be completed by the employee requested leave and submitted to the Human Resource
office 30 days before commencement date. If 30 days’ notice is not possible, notice of a request
for FMLA leave must be given as soon as possible.” Regarding notice, Robinson testified that:

11

“The general principle is that you give 30 days notice, but, again, it may or may not always be
available.” Doc. 25-3, p. 8. She stated that the notice requirement depends on the medical
situation.
The Defendant also argues that since he had been trained on the FMLA, he should have
known he had to request leave. Further, The Clubs argue that he had no right to be reinstated to
light duty. According to Robinson, when asked if she had a medical file for Dallefeld, she
answered: “The only thing I had regarding medical was the slip he gave me stating he would be
off work, so at that point, yes.” Doc. 25-3, p. 5. The Defendant also argues that Dallefeld’s
absence was open-ended. Doc. 26, p. 4.
It is unclear whether The Clubs would accept a verbal request for FMLA leave.
Concerning FMLA requests, Robinson stated the following: “It should be written, but they can
request it however they care to request it, and I would complete the paperwork for them and get
the process started.” Doc. 25-3, p. 6-7. The following exchange also took place:
Q. Okay. Once an employee requests leave, either verbally or written, how long
does it usually take for you to get back to them as whether they’re eligible for
leave or not?
A. I wouldn’t say there was a usual. I would say I would process the paperwork
within a day or so.
Doc. 25-3, p. 7. Robinson did not clarify that verbal requests would not be accepted.
Robinson stated that only one employee requested FMLA leave at The Clubs. Doc. 25-3,
p. 8. According to Robinson, that employee “sent her department head – her supervisor, I believe
it was, an e-mail, which was then forwarded to me.” Id. Defendant also concedes that a current
employee, Ott, verbally requested time off, although the Defendant distinguishes her paid time
off from FMLA leave. Robinson discussed other employees who had taken leave, including one

12

who had a doctor’s note and requested time off for a back injury but did not take FMLA leave.
Doc. 25-3, p. 9.
The Clubs knew Dallefeld would be taking some time off from work. Dallefeld told
Robinson that he was going to have surgery, because he explained to her that he was getting
surgery and his workers’ compensation lawyer filed claims with The Clubs in order to move the
workers’ compensation process along. Doc. 25-3, p. 15. Robinson also testified that Dallefeld
gave her a copy the March work status report, taking him off duty, by delivering it to her at her
house. Doc. 25-3, p. 16. Dallefeld told her that his surgery was “imminent.” Doc. 25-3, p. 17.
However, Dallefeld left for Florida the day after being placed off duty, and did not schedule a
surgery. Nor did he have surgery before May 21, 2014, when he sought to return.
In her testimony, Robinson states that she did not discuss FMLA leave with Dallefeld:
Q. And when you received this, the March Work Status Report, you knew that
Jason was requesting time off of work then, correct?
A. I knew that he was going to be off work, correct.
Q. Did you discuss FMLA with Jason at that time?
A. No.
Q. Was Jason given any FMLA paperwork?
A. Jason never requested FMLA paperwork.
Q. And you never told Jason that he could not be off duty after he gave you the
March 2014 Work Status Report, did you?
A. I never told him that he couldn’t be off?
Q. Right.
A. I never told him that.
Doc. 25-3, p. 17.
On summary judgment, the inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the Plaintiff in this case. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). While Dallefeld presents minimal evidence
13

that he even gave thought to FMLA leave, when viewing the evidence in a light most favorable
to the Plaintiff, a sufficient amount of disputed fact exists regarding notice to survive summary
judgment. A reasonable trier of fact could find that Dallefeld gave sufficient notice to the
Defendant that he would take leave from work when he provided the Defendant his doctor’s
work status report taking him off duty. Since Robinson was in charge of FMLA leave, and she
received the note, a reasonable jury could find that she should have started the FMLA leave
process. See Burnett v. LFW Inc., 472 F.3d 471, 478-79 (7th Cir. 2006) (the employee does not
need to explicitly request FMLA leave or know he has FMLA rights to qualify). As Dallefeld
testified, “I mean, she would direct me if I needed to do something that I – you know, other than
giving her the paperwork, I mean, if she needed something, she would let me know.” Doc. 25-1,
p. 17.
Dallefeld did not complete The Clubs’ FMLA leave form. Dallefeld does not remember
discussing taking FMLA leave, although he knew The Clubs’ policies from meetings; if he was
not certain, he could have asked Robinson. The Clubs may very well be found to be within its
rights to enforce its own internal FMLA leave procedures. The employer may require employees
to comply with internal notice obligations:
(e) Waiver of notice. An employer may waive employees' FMLA notice obligations
or the employer's own internal rules on leave notice requirements. If an employer
does not waive the employee's obligations under its internal leave rules, the
employer may take appropriate action under its internal rules and procedures for
failure to follow its usual and customary notification rules, absent unusual
circumstances, as long as the actions are taken in a manner that does not
discriminate against employees taking FMLA leave and the rules are not
inconsistent with § 825.303(a).
29 C.F.R. § 825.304. See also, Brown v. Auto. Components Holdings, LLC, 622 F.3d 685 (7th
Cir. 2010). It is also true that “FMLA regulations specifically provide than an employer may
require employees to comply with the employer’s usual and customary notice and procedural
14

requirements for requesting leave, absent unusual circumstances.” Brown v. Automotive
Components Holdings, LLC, 622 F.3d 685, 690 (7th Cir. 2010), quoting § 825.302(d) (internal
quotations omitted). However, here, there circumstances could be found unusual. Robinson was
aware that Dallefeld would be taking time off work for his knee issue. Therefore, she was not “in
the dark” about his medical condition or his plans to return. Gilliam v. United Parcel Serv., Inc.,
233 F.3d 969, 971 (7th Cir. 2000). Nor was Dallefeld vague or mention only that he was
contemplating taking leave. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 220 (7th Cir.
2015). Viewing the facts in a light favorable to the Plaintiff, Robinson’s testimony that
employees may “request it however they care to request it” creates a question of whether this
notice requirement was waived, particularly when she knew he was taken off duty for his knee
issue. Overall, the parties’ conflicting evidence creates a genuine issue of material fact regarding
notice.
Finally, Dallefeld argues that The Clubs denied him FMLA benefits and that he therefore
meets the last element. Because the parties dispute whether or not the Defendant received
Dallefeld’s May 21, 2014 work status report allowing him to return to work, and because the
Defendant fails to articulate a reason for Dallefeld’s termination, the Defendant is not entitled to
summary judgment. There is a question of whether the Defendant denied his FMLA leave when
he was terminated while he was off duty.
b. Retaliation claim
Employers may not use “FMLA leave as a negative factor in employment actions, such
as hiring, promotions or disciplinary actions . . . .” 29 C.F.R. § 825.220(c). According to the
Defendant, Dallefeld cannot show a causal connection between his off work slip and his eventual
termination, and timing is not enough to show causation.

15

In the past, courts determined whether a plaintiff could succeed in a discrimination or
retaliation claim under either the direct or indirect method of proof. Recently, in Ortiz v. Werner
Enterprises, Inc., the Seventh Circuit determined that “evidence must be considered as a whole,
rather than asking whether any particular piece of evidence proves the case by itself—or whether
just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Id. Accordingly, the Court will
look to the evidence in this case as a whole.
The Defendant argues that Dallefeld can only show that he suffered an adverse
employment action, but he did not engage in statutorily protected activity where no FMLA rights
were triggered. The Defendant also argues that his job was unique so he cannot establish that he
was treated less favorable than a similarly situated employee. However, as previously stated,
there is a dispute as to whether he triggered his FMLA rights. Second, whether his job is
comparable to employees who took leave is a question of fact.
The Defendant argues Dallefeld cannot show a causal connection. Also, according to the
Motion for Summary Judgment, The Clubs suspected that he obtained an off work slip in order
to take a vacation in Florida. However, the timing of the termination is also consistent with
Dallefeld’s allegations. For instance, the Defendant accommodated Dallefeld for a few weeks
and had other individuals fill in for him. When allegedly asked to return to modified duty at a
meeting, he was subsequently terminated. Additionally, the termination letter predated the
meeting, although his termination was not discussed at the meeting. Also, the Defendant was
otherwise satisfied with his work.
The Court determines that there are significant questions of fact underlying the
circumstances of the Plaintiff’s termination that must be determined by the fact finder. For
example, there is an issue of whether the Defendant fired Dallefeld to prevent him from

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exercising his right to reinstatement. See Goelzer v. Sheboygan County, Wis., 604 F.3d 987, 993
(7th Cir. 2010). Accordingly, the Defendant is not entitled to summary judgment on the FMLA
claim.

2. ADA
a. Disability
The ADA prohibits discrimination “against a qualified individual on the basis of
disability in regard to . . . discharge . . . and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112. To defeat a motion for summary judgment on an ADA claim,
the plaintiff must identify a genuine issue of material fact as to whether: (1) the plaintiff is
disabled within the meaning of the ADA; (2) he is able to perform the essential functions of the
job either with or without reasonable accommodation, and (3) he suffered an adverse
employment action because of his disability. Gogos v. AMS Mechanical Systems, Inc., 737 F.3d
1170, 1172 (7th Cir. 2013); Kampier v. Emeritus Corp., 472 F.3d 930. 937 (7th Cir. 2007);
Rooney v. Koch Air, LLC, 410 F.3d 376, 380-81 (7th Cir. 2005); Majors v. General Electric
Company, 714 F.3d 527, 533 (7th Cir. 2013). Under the ADA, disability is defined as: (1) a
physical or mental impairment that substantially limits one or more of the major life activities of
such individual; (2) a record of such an impairment; or (3) being regarded as having such an
impairment. 42 U.S.C. § 12102(2).
In the Motion for Summary Judgment, the Defendant argues that it is questionable
whether the Plaintiff has a disability: “Initially, it is questionable whether Dallefeld was qualified
individual with a disability because of the lifting restriction and inability to give tours, as well as
the fact that he missed months of work because Rhode continued to give him off-work slips.”
Doc. 22, p. 12. The Plaintiff responds that he has set forth facts that show he was disabled under
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the ADA. For example, Dr. Rhode opined that his right knee, lateral meniscus tear was a
physical impairment and disability. The Plaintiff argues that he had trouble walking, bending,
lifting, and standing; these are major life activities pursuant to the requirements of 29 C.F.R. §
1630.2. The Defendant disputes that his injury had this effect because he vacationed in Florida
and lifted weights at The Clubs after his March 2014 injury. (Doc. 26, p. 9, ¶ 46).
First, the Plaintiff has presented facts that could lead to a finding that he was disabled
under the ADA. The Parties do not dispute that the Defendant was aware of his knee injury, as
both Robinson and O’Connell testified that they knew of the knee injury and doctor
appointments during his employment. According to Dallefeld and Dr. Rhode, his knee injury
significantly limited his ability to stand and walk at work. Moreover, the Plaintiff has a
documented medical record of his knee issue, and the Defendant also concedes that during Dr.
Rhode’s treatment, Dallefeld’s right knee injury was a physical impairment and physical
disability. Doc. 26, p. 9, ¶¶ 44-45.
Second, Dallefeld has presented facts that he is able to perform the essential functions of
the job either with or without reasonable accommodation. § 12111. His main duty was to sell and
renew memberships. He was able to sit at his desk, use a computer, and take phone calls. The
only duty he could not fulfill was to give tours around The Clubs. Robinson testified that other
people at The Clubs are able to give tours if Jason was not able to. Robinson testified that
Dallefeld would have been able to perform his duties on the light work modified duty as
described in the May 2014 work status report by Dr. Rhode. Doc. 25-3, p. 18. The Defendant
does not dispute that Dallefeld was able to perform his job without limitation until Dr. Rhode
took him off work on March 26, 2014.

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Finally, Dallefeld has presented facts that support the last element of an ADA claim, that
he suffered an adverse employment action because of his disability. As discussed above,
O’Connell testified that Dallefeld was let go because:
His inability to be specific when his knee was going to be done, and we –he’d gone
and had a number of knee operations- knee examinations, and we could never really
get a straight answer what was going on from him.
Doc. 25-4, p. 9; O’Connell Dep. at 93, ¶ 12-16. The Defendant’s reason for the termination is
unclear. A reasonable fact finder could find that that The Clubs were entering a busy season,
Dallefeld was uncertain when he would return, and his duties needed to be reassigned. However,
Dallefeld has presented facts that could also lead a reasonable fact finder to determine that
Dallefeld’s employment was terminated because of his disability. He was going to be off of work
for a few weeks if he had surgery in the future, he had filed workers’ compensation claims with
The Clubs, and asked for light duty so that he would not have to stand. He was fired soon after
being taken off work and attempting to return with light duty. Thus, a genuine dispute of material
facts exists as to whether Dallefeld suffered an adverse employment action because of his
disability.
b. Accommodation
The ADA also provides that an employer discriminates by "not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability." 42 U.S.C. § 12112(b)(5)(A). A failure to accommodate claim arises only if
the employee first satisfies the requirement of demonstrating that she suffers from a disability
within the meaning of the statute. Szmaj v. American Telephone & Telegraph Co., 291 F.3d 955,
956 (7th Cir. 2002) (holding that the ADA does not impose a duty of accommodation and that the
duty of accommodation arises only if the employee is first determined to have a disability within

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the meaning of the Act). The Seventh Circuit has defined the prima facie showing required of an
ADA plaintiff for failure to accommodate as follows: (1) she was disabled; (2) the [employer]
was aware of her disability; and (3) she was a qualified individual who, with or without
reasonable accommodation, could perform the essential functions of the employment position.
McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 566 (7th Cir. 2000),
citing Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 789 (7th Cir. 1999).
Failure to accommodate a known disability can constitute discrimination under the ADA,
unless doing so would impose an undue hardship on the employer. 42 U.S.C. § 12112(a),
(b)(5)(A). Once an employer becomes aware of an employee's disability, it must make good faith
efforts to reach a reasonable accommodation. Beck v. University of Wisconsin Board of Regents,
75 F.3d 1130, 1135 (7th Cir. 1996); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th
Cir. 1998). That being said, employers are not required to provide the precise accommodation
requested by an employee, particularly where the employee's request is not adequately
substantiated by medical documentation; the employer is only required to provide an
accommodation that is reasonable in terms of costs and benefits. Mays v. Principi, 301 F.3d 866,
871-72 (7th Cir. 2002); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998)
(noting that an employee is not entitled to the best or employee-preferred accommodations, only
an accommodation that is reasonable).
If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for its employment decision. Buie
v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). If this is done, the burden then shifts
back to the plaintiff to show by a preponderance of the evidence that the proffered reason was
merely a pretext for intentional discrimination or retaliation. Id. Pretext can be shown by

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evidence suggesting that the proffered reason was factually baseless, was not the actual
motivation, or was insufficient to motivate the employer's action. Grube v. Lau Industries, Inc.,
257 F.3d 723, 729 (7th Cir. 2001).
Dallefeld alleges that The Clubs denied him a reasonable accommodation. In addition to
the evidence that he could return on modified duty, Dallefeld offers evidence that similarly
situated employees were treated differently. For example, he points out that Luke Burton, the
Defendant’s current Manager on Duty and Membership sales employee, works on modified duty
with a weight restriction. Doc. 25-3, p. 8, 11. The Defendant argues that this is immaterial and
Burton is not comparable because he was not the Director of Membership Sales.
According to the Defendant, it is undisputed that Dallefeld never asked for an
accommodation, but rather, unlimited time off. The Defendant quotes the portion of Dallefeld’s
affidavit where he states that he never asked for anything other than coming back to light duty.
Q. For any of the injuries you had at The Clubs at River City, did you ask for
anything special to change your job or anything like that other than coming
back to light-duty that you’ve talked about?
A. No. Just my position was pretty easy. I mean, labor intensive it wasn’t. So I
mean it was a pretty light-back job. So I’ve been in labor positions before and
it’s hard work, so this was nothing to me.
Doc. 25-1, p. 23-24. The Defendant argues that even if the off work could be construed as a
request for reasonable accommodation, it was an open-ended request for time off for a surgery
that was not yet scheduled. The Defendant argues that this is not a reasonable accommodation.
Instead, The Clubs argue they have put forth a legitimate non-discriminatory reason for
his termination; that his duties needed to be reassigned to two existing employees as they entered
into a busy season. The Plaintiff disputes this because he claims that January is the busiest
season. However, O’Connell testified that January is one of the busiest seasons, not that it was

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the only busy season. Doc. 25-4, p. 7. Moreover, the time of the year is not material to the ADA
analysis.
Dallefeld has presented evidence that he requested an accommodation. In the May 21,
2014 Work Status form completed by Dr. Rhode, Dallefeld was released to light work modified
duty; that is, he could not lift or carry more than 20lbs, and he was limited to frequent lifting of
10lbs or less. Doc. 25-10, p. 9. Dr. Rhode also testified that Dallefeld could have performed his
job duties if given an accommodation where he did not have to walk around the club and give
tours. However, the Defendant contends that while this is undisputed, “Dallefeld did not request
an accommodation until allegedly returning with a light duty slip. O’Connell and Robinson had
covered Dallefeld’s position and expected Dallefeld’s surgery to be imminent.” Doc. 26, p. 10.
Again, Dallefeld testified that he could perform the essential functions of his job, such as
sitting at his desk, answering the phone, and using his computer. He testified that he discussed
this with Robinson. Robinson testified that other people at The Clubs are able to give tours if
Jason was not able to, and she thought that Dallefeld would have been able to perform his duties
on the light work modified duty. Doc. 25-3, p. 18. After meeting with O’Connell and Robinson,
he was told to go have surgery, and he received a termination letter not long after that. The date
of the termination letter was the day before the meeting in which he told O’Connell and
Robinson that he could return to light work modified duty. However, Robinson testified that she
did not recall whether Dallefeld verbally requested to come back to work on light-duty. Doc. 253, p. 19.
The Court determines that there is a dispute as to what Robinson knew about the May
2014 release allowing Dallefeld to work. The fact finder may very well determine that this work
status from Dr. Rhode constituted a request for an accommodation, and that this was a

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reasonable accommodation. When asked about the termination at her deposition, Robinson
testified that “[O’Connell] assumed he was coming in with a release, but he did not, so
[Dallefeld] basically stated that he could come back to work but his surgery was going to be
happening again any day.” Doc. 25-3, p. 18. Robinson testified that O’Connell told Dallefeld to
bring the paper—which the Court assumes means the modified duty slip—but that Dallefeld did
not do so. Doc. 25-3, p. 18. It is disputed whether or not The Clubs even saw this form.
Accordingly, the Defendant is not entitled to summary judgment on the ADA claim.
3. Retaliatory Discharge
Lastly, the Clubs also argue that Dallefeld does not have a claim for common law
retaliatory discharge. In Illinois, retaliatory discharge claims have been allowed when an
employee files a Workers Compensation claim. Michael v. Precision Alliance Group LLC, 21
N.E.3d 1183, 1188 (Ill. 2014). A prima facie case requires a showing that: “(1) the employer
discharged the employee, (2) the discharge was in retaliation for the employee’s activities
(causation), and (3) the discharge violates a clear mandate of public policy.” Id.
According to the Illinois Supreme Court, “once a plaintiff establishes a prima facie case
against the defendant, the defendant has the burden of rebutting the prima facie case with
evidence of a legitimate, nonretaliatory reason for discharging the plaintiff.” Clemons, 184 Ill.
2d at 338 (1998). Furthermore, “[i]f the defendant meets this burden, the plaintiff must then
prove that the nonretaliatory reason asserted by the employer is pretextual.” Id. “The issue of an
employer's true motive in terminating an employee is a question of fact, not normally subject to
summary judgment.” Zuccolo v. Hannah Marine Corp., 387 Ill. App. 3d 561, 568, 900 N.E.2d
353, 359 (2008).

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At issue is whether there is causation between the Plaintiff’s exercise of his workers’
compensation rights and his discharge. The Clubs submitted Dallefeld’s claims to their workers’
compensation insurance carrier. There is no evidence, argues the Defendant, that would allow a
reasonable jury to conclude that his exercise of filing workers’ compensation rights were the
cause of his termination. The Defendant argues that the claims were turned in late and implies
that Dallefeld may have done this to prevent his lawful termination from employment.
However, Dallefeld has presented evidence that he could return to work with restrictions
after being injured at work, but the Defendant told him to go have surgery. The Plaintiff argues
that a reasonable jury could find that the Plaintiff was discharged because he filed the workers’
compensation claims. Robinson stated that she was “perplexed” and O’Connell stated that he
was upset that Dallefeld filed the claims through counsel. Dallefeld claims that he gave The
Clubs his work status report where he could return to work, but this was obviously denied when
he was terminated. The Plaintiff contends that he was let go three months after he filed workers’
compensation claims. This evidence, taken together, is enough for the retaliatory discharge claim
to survive summary judgement. As a reasonable fact-finder could conclude that Dallefeld has
created a genuine issue of material fact on this issue and made a credible showing that the
Defendant terminated his employment because he exercised his workers’ compensation rights.
The Defendant is not entitled to judgment as a matter of law on the retaliatory discharge claim.
4. Motion to Strike
The Plaintiff also moves to strike paragraphs of the Supplemental Declaration of Lisbeth
Robinson. Doc. 27. Because the Motion for Summary Judgment is denied, the Court need not
address the arguments presented by parties in the Motion to Strike. The statements contained in

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the Supplemental Declaration do not change the Court’s analysis. The Court would note that it
did not consider statements which contradicted earlier testimony.
Conclusion
For the reasons set forth above, questions of fact exist as to whether the Plaintiff provided
the Defendant with notice of FMLA leave, whether his injury was sufficient to meet the
requirements of the FMLA and ADA, how long he was injured, whether he requested an
accommodation, and the reason for his termination. As such, these issues are appropriate for the
finder of fact to resolve.

Accordingly, the Defendant’s Motion for Summary Judgment [22] is respectfully denied.

14
July
Signed on this _______ day of ______________, 2017.

s/ James E. Shadid
____________________________
James E. Shadid
Chief United States District Judge

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