Townsend v. St. John's Hospital of the Hospital Sisters of the Third Order of St Francis
Filing
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OPINION (See Written Opinion): The Defendant's Motion for Summary Judgment [d/e 30 ] is ALLOWED IN PART and DENIED IN PART. The Motion is ALLOWED as to Count 1 and DENIED as to Count 2. The final pretrial conference remains scheduled for October 24, 2012. Entered by Judge Richard Mills on 9/21/2012. (VM, ilcd)
E-FILED
Monday, 24 September, 2012 10:07:39 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LORI TOWNSEND,
Plaintiff,
v.
ST. JOHN’S HOSPITAL OF THE
HOSPITAL SISTERS OF THE
THIRD ORDER OF ST. FRANCIS,
an Illinois not-for-profit corporation,
Defendant.
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NO. 09-3194
OPINION
RICHARD MILLS, U.S. District Judge:
Pending before the Court is the Defendant’s Motion for Summary
Judgment.
I. INTRODUCTION
Plaintiff Lori Townsend filed a Complaint, wherein she asserted that
Defendant St. John’s Hospital of the Hospital Sisters of the Third Order of
St. Francis (“the Hospital” or “St. John’s”) violated her rights under the
Family and Medical Leave Act (“FMLA” or “the Act”), 29 U.S.C. § 2615
et al. In Count 1, Townsend alleges the conduct of St. John’s interfered
with her rights under the FMLA, in violation of § 2615(a)(1). In Count II,
Townsend asserts St. John’s discriminated against her in retaliation for
using her family and medical leave (“FML”) benefits, in violation of §
2615(a)(2).1
The Hospital seeks the entry of summary judgment as to both counts.
It claims Townsend’s FML benefits were exhausted by August 20, 2007, a
date on which she was medically unable to return to work. Thus, the
Hospital alleges it did not interfere with the use of her benefits. Even if the
benefits were not exhausted, Townsend was unable to perform the essential
functions of her job on September 3, 2007. As to Count II, the Hospital
asserts that Townsend does not have sufficient evidence of a retaliatory
animus to withstand the entry of summary judgment.
Townsend claims that there are genuine factual disputes as to both
counts, thus precluding the entry of summary judgment.
II. FACTUAL BACKGROUND
St. John’s is an Illinois not-for-profit corporation which provides
The Plaintiff’s original Complaint had three counts. However,
Count III was dismissed in an Order entered on February 11, 2010.
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healthcare services at a facility located in Springfield, Illinois. Townsend
was a registered nurse who was employed by St. John’s to work as a case
manager in the Hospital’s case management unit. She is a citizen of the
United States and an Illinois resident. The Court has jurisdiction over the
subject matter pursuant to 28 U.S.C. §§ 1331, 1337, and 29 U.S.C. § 2617,
and venue is proper in this district.
A. Job description and functions
As a case manager for the Hospital, Townsend examined medical
records located in certain medical treatment units of the Hospital and
conferred with physicians, health insurers, and staff of the Hospital with
respect to those medical records. Townsend developed the discharge plan
in collaboration with the patient, physician, payor and interdisciplinary
team and assigned accountability for aspects of the plan of care.
The Plaintiff regularly worked five days a week, Monday through
Friday, from 7:30 a.m. to 4:00 p.m. She was primarily assigned to the fifth
floor cardiac unit, where she was required to cover all three nursing stations
on the floor, located approximately 100 feet apart. Townsend reported to
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Larry Deal, Case Management Coordinator, who reported to Debbie
Woodford, Director of Outcomes Management.
The Hospital contends that the physical demands of Townsend’s case
manager position required that she be capable of stooping, bending,
stretching and lifting, able to tolerate variable amounts of standing, walking
and/or sedentary activity and possess manual dexterity to handle and
manipulate equipment and appliances.
Townsend disputes that the
position required some of these as physical essential functions.
At the beginning of her shift, Townsend usually went to her office on
the fifth floor to retrieve her laptop and any books or notes she needed for
the day. She carried her laptop and books in a rolling suitcase. She would
then plug in her laptop in the dictation room on the fifth floor, walk out to
the nurses station to retrieve a chart, which was usually two or three inches
thick, walk back to the dictation room and put the reviews in the laptop
based on what was listed in the chart. The Plaintiff states that she did not
carry a laptop for the last six months of her employment. Townsend
reviewed 25 to 35 patient charts daily, and was thus required to repeat this
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action up to 70 times a day. Townsend notes that the case manager usually
worked within a few feet of the revolving chart rack. According to the
Hospital, charts were not always on the rack and sometimes had to be
located in different places.
The Hospital asserts that Townsend’s supervisors testified that case
managers also had direct involvement with patients, talked to patients
about their discharge needs, worked with the social worker to assist with
home need preparation, and conferred with patients and families at the
time of discharge.
Moreover, case managers were held to the same
standards as nurses that are in patient rooms taking care of people, insofar
as they should not be wearing open toed shoes. Townsend disputes some
of these aspects of the case manager job description.
The Hospital further contends that case managers needed to be
mobile because they had to go in and see patients and were required to
travel to the case management office on the second floor about two or three
times a day. Moreover, Townsend admitted that she was required to go to
an office on the second floor of the hospital to retrieve Medicare letters and
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deliver them to patients. Townsend disputes these alleged facts and claims
she was only rarely required to deliver a Medicare letter to a patient.
Except for that purpose, Townsend alleges that she had no other reason to
go to a patient’s room. Case managers on other floors had more patient
interaction.
St. John’s next asserts that Townsend acknowledged the job
requirements as follows: a case manager is required to be able to walk while
carrying or pulling supplies; be in and out of patient’s rooms to interact
with patients and families; and interact with physicians, staff, nurses and
other health care team members, sometimes at a moment’s notice.
Townsend disputes this statement, suggesting that the position is more
sedentary than is reflected in the job description.
B. St. John’s FMLA policy and Townsend’s FMLA leave
The Hospital had an FMLA policy in its Employee Handbook
allowing for up to 12 work weeks of leave for eligible employees. Under the
policy, the 12-week period was calculated on a calendar year basis, rather
than rolling year. Since the Hospital instituted its FMLA leave policy that
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rests with the calendar year, approximately 20 employees have taken leave
during back-to-back years.
When an employee is on FML, it is the
responsibility of her supervisor to track time taken to assure that it does not
exceed 12 weeks.
There was no Hospital policy that stated an employee could not
return to work unless it was with a physician’s full release without
restrictions. Every case was handled individually. In each case, Human
Resources Coordinator Kathy Maxey would look at the physician
restrictions and the employee’s health to determine if the employee could
function within the restrictions. Woodford believed that depending upon
the position, a Hospital employee would be allowed to resume work with
restrictions.
Under Hospital policies, an employee must give evidence of her ability
to return to work through documentation from the physician.
Documentation would include: (1) any restrictions; (2) the type of work to
be released to perform; and (3) whether it is a full or partial release. This
policy permits an employee to resume previous duties with evidence of her
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ability to resume those previous duties.
When the employee is certified by a physician as able to return to
work at a time after the expiration of FML, the employee can return to his
position if it has not been filled. Otherwise, the employee would have a job
search period. The job search period is 60 days. If an employee does not
locate a position within that period, she is terminated. No preference is
given to the employee in competing for a position.
From May 10, 2006, to at least May 3, 2010, Townsend was treated
for depression by her physician, Dr. Sarma, or a physician within his
practice, on an ongoing basis.
In 2006, she took FMLA leave for
depression. Townsend did not take more than 12 weeks for this leave in
2006, and she returned to her case manager position after that leave.
The Plaintiff took another two weeks of leave for depression in early
2007, from February 12, 2007 through February 23, 2007. Her treating
physician, Dr. Sarma, provided Townsend with a return to work letter,
dated February 26, 2007, which stated that Townsend had been “unable to
work from February 12– 23rd" due to her medical condition, but was
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released back to work “without restriction” on February 26, 2007.
Later that same year, on June 9, 2007, Townsend fell from a ladder
at her home and fractured the talus bone in her right ankle. She was
referred to Barry Mulshine, M.D., an ankle specialist.
Townsend
underwent surgery on June 18, 2007, to repair the fracture in her ankle.
After her surgery, the Plaintiff’s right ankle was in a splint similar to
a cast and it was non-weight bearing. Townsend was unable to walk for a
period of time. She used a wheelchair before her physician allowed her to
walk with crutches. Townsend cannot recall when she quit using the
wheelchair, but she used crutches simultaneously and also then wore a boot
with a hard bottom and velcro straps. While wearing the boot, her toes
were covered by socks.
Townsend began taking leave for the ankle injury on June 11, 2007.
At the time, she was an employee in good standing with no disciplinary
issues. On June 13, 2007, St. John’s sent Townsend information on its
FMLA policy, a leave of absence request form and a request for health care
provider certification, which she received. In connection with her leave
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request, Townsend submitted an FMLA Leave Request Health Care
Provider Certification completed by Dr. Mulshine on June 26, 2007, which
stated that Plaintiff’s current health condition has a “probable duration
through September 2007.” It further stated that she should not work until
re-evaluated on July 3, 2007, and thereafter would be seen at 2 to 4 week
intervals. Townsend saw Dr. Mulshine on July 3, 2007, at which time her
ankle was put into a cast. She saw Dr. Mulshine again on July 31, 2007.
On that date, her doctor removed her cast, put her in an immobilizer boot
and told her to remain non-weight bearing at that point. The Plaintiff was
released for sedentary work if transportation was provided to her. At the
time, Townsend was instructed to use some device such as crutches for
walking to avoid putting weight on her ankle.
Townsend made
arrangements with her father for transportation to and from work.
C. St. John’s leave update request
On July 17, 2007, St. John’s Human Resource Coordinator Kathy
Maxey sent a letter to the Plaintiff requesting an update from her physician
regarding her return to work date. At that time, Maxey mistakenly believed
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Townsend’s FMLA expired on August 26, 2007, so she specifically
requested information as to whether Townsend was able to return to work
before that date. When Maxey received the FMLA leave request from the
Plaintiff, it did not include a beginning date for the leave. Maxey referred
to Townsend’s time card report and saw that June 4 and June 5 of 2007
were designated as unpaid time off and mistakenly assumed June 4, 2007,
was the start date of the Plaintiff’s leave, instead of a vacation day. Maxey
wrote June 4 on the FMLA leave request form that was sent to Townsend,
but wasn’t informed by the Plaintiff that the start date was wrong until
August 23, 2007.
The Hospital alleges that on or about July 31, 2007, Dr. Mulshine
responded to its update request and stated that Plaintiff’s return to work
date was still “unknown” but that it would be “after August 26, 2007.” Dr.
Mulshine further stated that Plaintiff was to perform “no work until reevaluated in four weeks.” St. John’s received Dr. Mulshine’s response on
August 1, 2007. The Plaintiff disputes these allegations, citing a “Nurses
Note” dated July 31, 2007, from Dr. Mulshine’s office, which provided in
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pertinent part, “May return to work for sedentary duty only – if
transportation is provided. Otherwise no work until re-evaluated in 4
weeks.” At the time Dr. Mulshine sent in the update on Townsend’s return
to work, Townsend was still on non-weight bearing crutches and a boot.
The Hospital alleges Townsend admitted that she did not feel capable
to return to her position as of July 31, 2007, because she could not perform
all the duties of the case manager position.
Moreover, the medical
restrictions provided by Dr. Mulshine on the July 31, 2007, update were
not going to change before her next appointment at the end of August
2007. Townsend disputes this allegation and claims she was capable of
performing sedentary duty on July 31, 2007. Townsend says she was bored
and wanted to go back to work.
Townsend asserts that following her July 31, 2007 appointment with
Dr. Mulshine, she told Deal she would like to return to work. She claims
that Deal stated that Townsend could not return to work because she was
using crutches and her ankle was in the boot. He also said Townsend could
not return to work with any restrictions. The Hospital disputes these
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allegations, claiming that at her deposition, Townsend did not recall Deal
saying that she could not return to work with any restrictions.2
D. Whether Townsend could return to work without restrictions
(1)
On July 17, 2007, Maxey understood that Townsend’s FML would
end on August 26, 2007. Maxey assumed that was the end of the twelve
weeks. After receiving Dr. Mulshine’s note on August 1, 2007, Maxey
talked with Deal and Woodford. Along with other employees, they made
the decision that Townsend was not allowed to return to work. Maxey is
not aware of anyone from the Hospital asking what the physician meant by
“sedentary.”
Townsend claims that, at the time of her July 31, 2007 doctor
appointment, she was relying upon the information she had received from
the Hospital that she would have a full twelve weeks of FML available to
In her Affidavit which was executed in April 2012, Townsend
claims that Deal told her that she could not return to work with any
restrictions. At her deposition approximately one year earlier, when
asked generally whether she recalled what Deal had said, she
remembered only him saying that there were no sedentary jobs.
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her. Because her leave began on June 11, 2007, and she was informed by
the Hospital that she would be entitled to 12 weeks of leave time, she
calculated the ending date of the leave to be September 2, 2007.
Townsend alleges that if she had not known that her FML would
terminate earlier than September 2, 2007, she would have made a follow-up
appointment with Dr. Mulshine at a time shortly prior to the expiration of
her FML. Because she believed that her leave would not end until early
September 2007, Townsend scheduled an appointment with Dr. Mulshine
for August 28, 2007.
The Hospital asserts that, regardless of what
Townsend now claims, Dr. Mulshine had already stated on July 31, 2007,
“No work until re-evaluated in four weeks.”
St. John’s asserts that, based upon Dr. Mulshine’s unequivocal
statement that Townsend could not return to work until after August 26,
2007, the Hospital went forward in filling her case manager position.
Townsend disputes this allegation, saying there was no unequivocal
statement from Dr. Mulshine that she could not go back to work on July
31, 2007. Moreover, Townsend claims her position was filled before then.
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On August 8, 2007, Maxey drafted a letter to be sent from
Townsend’s supervisor informing her that “[d]ue to the needs of the Case
Management Department, [her] position ha[d] been filled.” On August 10,
2007, Deal and Woodford called Townsend to inform her that the position
had been filled due to the urgent needs of the department, which had been
without a case manager for two months. Townsend states she was told the
case manager position was filled several weeks before August 10, 2007. The
Hospital alleges that documents produced to Townsend confirm that
management decided to hire her replacement after they received the note
from Dr. Mulshine that Townsend would not return to work until after
August 26, 2007.
The letter from Maxey informed Townsend that upon her release to
work, she would have a period of 90 days in which to apply for vacant
positions for which she was qualified. Deal incorrectly indicated that
Townsend had been on FML since June 4, 2007, and her 12 weeks of leave
for calendar year 2007 would be exhausted on August 26, 2007. Deal
further stated that he understood from Townsend’s physician that she
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would not be released to return to work until after August 26, 2007.
On August 10, 2007, Deal believed Townsend’s leave would exceed
twelve weeks. If Townsend was able to come back after the expiration of
the 12-week period, Deal and Woodford understood she could apply for
any position for which she was qualified. She would be considered in good
standing with the Hospital. However, Townsend would not be guaranteed
a position. On August 10, 2007, Townsend spoke by telephone to Deal
and Woodford. During that conversation, she was told that the Hospital
had hired an individual to replace her. At the time, she was in the eighth
week of her FML. Townsend alleges that during the conversation, Deal said
that the new case manager who was hired to fill her position started
orientation on July 23, 2007. St. John’s disputes this assertion as to the
number of weeks of FML that had been used by August 10, 2007, and on
the basis that Townsend’s replacement did not report for orientation until
September 10, 2007.
Townsend’s FML was not over on August 8, 2007, when Deal’s letter
was written. On August 23, 2007, Townsend met with Maxey at the
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Hospital to inform her that St. John’s was using the wrong date as the
beginning of her FMLA leave. The Hospital then calculated her FMLA
leave expiration date as either September 2 or 3, 2007. August 23, 2007,
may have been the first time Woodford was aware Townsend’s FML was
extended into early September 2007.
(2)
Townsend alleges that at the time of her meeting with Maxey, she was
not using crutches. During that meeting, Townsend never indicated to
Maxey that she was not yet bearing weight on her right ankle.
The
Hospital disputes these allegations, stating that Maxey testified she
witnessed Townsend using crutches on August 23, 2007, and an email
Maxey drafted following the meeting documented that she was doing so.
Moreover, Townsend testified at the time of her deposition that she did not
know if she was using crutches on or around August 28, 2007, though she
was fairly certain she was not. In her subsequent Declaration, Townsend
stated that she was not at the time of her meeting with Maxey. Moreover,
she claimed she never indicated that she was not yet bearing weight on her
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right ankle.
On August 28, 2007, Townsend saw Dr. Mulshine again. By then,
she was weight bearing and wearing regular shoes. Townsend was ten
weeks out from surgery and Dr. Mulshine allowed her to officially progress
to weight bearing and immobilizer boot.
Dr. Mulshine noted that
Townsend would be able to tolerate doing her regular job if she used
crutches and told her she still wouldn’t be able to drive while she was
partially weight bearing.3 Dr. Mulshine observed that Townsend had very
good motion across her ankle and there was some bone thinning, which he
said was a good sign that the fracture was healing. Dr. Mulshine or his staff
provided a Nurses Note for Townsend stating that she could return to work
on September 3, 2007, but should be permitted to wear a boot and use
crutches as needed. He told Townsend that she could wean herself out of
the boot and into a regular shoe as she was able to fully bear weight on the
ankle. According to Dr. Mulshine, some people progress to the weight
The Plaintiff clarifies this assertion by stating that Dr. Mulshine
did not instruct her to use her crutches. According to Dr. Mulshine’s
testimony, Townsend reported to him that she could do her regular job if
she used crutches. See Mulshine Tr. 19.
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bearing stage very quickly. He felt comfortable allowing Townsend’s pain
to guide her with respect to the need for crutches and boots. Townsend
was on the faster side compared to most people in attaining weight bearing
status. She did very well in her recovery from the fracture. The Hospital
alleges that Townsend’s relatively quick recovery is immaterial because she
could not return to work at the end of her FMLA entitlement on August 20,
2007, and could not return to work without restrictions by September 3,
2007, as indicated by Dr. Mulshine’s notes from July 31, 2007, and August
28, 2007.
In paperwork Townsend submitted in 2007 to the Illinois Department
of Human Rights (“IDHR”) in connection with her charge against St.
John’s, the Plaintiff stated, “I only needed my boot on 9-3-07 for one
week.” She also provided notes to the IDHR, one of which states “I wore
my removable boot for only 1 more week after being released for my own
emotional support.” At her deposition, Townsend could not recall the date
she stopped using crutches or the date she stopped using the boot, though
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she believed it was a few days before the meeting on August 28, 2007.4
After Townsend saw Dr. Mulshine on August 28, 2007, she took the
return to work slip directly to the Hospital. St. John’s alleges that, on
August 29, 2007, the Plaintiff called Maxey to discuss her physician’s
release to return to work, stating that she was still non-weight bearing on
crutches and wearing a boot. Townsend disputes this allegation, noting
that Maxey had no independent recollection of that fact. Indeed, Maxey
was presented with an exhibit which refreshed her recollection. According
to the exhibit, Maxey did send an email to Nancy Hopkins on that date
wherein she stated that Townsend would be released to return to work the
following week, but that she would be “non-weight bearing on crutches and
wearing a boot.” See Maxey Tr. 65. Despite the email, Townsend denies
telling Maxey that she would be non-weight bearing, using crutches and
wearing a boot. Although Townsend also disputes this assertion on the
The Plaintiff purports to clarify this assertion by stating that she
could not recall only the date she stopped wearing the boot. However,
the cited portion of her deposition (pp. 155-57) supports the Hospital’s
assertion that she also could not recall when she stopped using crutches.
See Townsend Tr. 156:5-8.
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basis that it is contrary to the testimony of Dr. Mulshine, Dr. Mulshine was
not a party to the conversation between Townsend and Maxey.
(3)
The Plaintiff alleges that either Deal or Maxey told her she could not
return to work with restrictions. She asked Dr. Mulshine to send another
note to the Hospital allowing her to return to work without restrictions.
The nurse mistakenly listed the return to work as September 10, 2007. It
should have been recorded as September 3, 2007. The nurse later wrote a
note to correct the date. This note was provided to the Hospital on
November 20, 2007.
As a supervisor at the Hospital, Deal was not aware of any policy that
prohibited an employee from returning to work with restrictions.
Restrictions would be considered on a case by case basis. Townsend alleges
that by late August or early September of 2007, she was able to do
everything she was able to do before her accident without pain.
The Hospital next alleges that, after consulting with Human
Resources and Employee Health, Deal and Woodford determined that
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Plaintiff could not return to work because she could not perform the
essential job functions of wheeling her suitcase and carrying charts while
she was using crutches and because the presence of crutches on patient
floors presented a serious risk to patient and employee safety. Townsend
claims she was not on crutches at that time.
Deal and Woodford both also said working would be a problem if
Townsend was wearing a boot. They believed that boots should not be
worn in patient care areas for infection control issues given the close
proximity to bodily fluids and germs. However, Townsend claims her
wound had healed and her foot was covered which prevented any risk of
infection. St. John’s further alleges that boots were a risk in nursing units
given how busy they are. Townsend objects, claiming that because she
worked on the cardiac floor, she did not work in patient care areas and
rarely had to go to the Case Management Office. Moreover, Townsend
would have returned to work wearing the boot for only one week--during
the week of September 3, 2007.
The Hospital alleges that case managers needed to be mobile because
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they had to visit patients, obtain charts, have access to the case
management office on the second floor, and were working in patient care
areas. Townsend asserts that case managers generally do not have to walk
quickly in order to do their jobs.
By August 28, 2007, the Plaintiff asserts she was able to walk for 30
minutes and stand for unlimited amounts of time without suffering any
pain. Townsend claims that she never requested an accommodation for
returning to work after her appointment that day with Dr. Mulshine. She
did not lead the Hospital to believe she needed an accommodation. St.
John’s disputes this assertion, claiming that Townsend did provide medical
documentation providing that she should use a boot or crutches as needed.
Moreover, no one at the Hospital ever asked Townsend what the day to day
physical demands were of her as case manager. The Hospital notes that it
was aware of the position’s physical demands.
On November 27, 2007, the Hospital’s Director of Human Resources
wrote to Townsend. In his letter, he stated that the Hospital’s personnel
action in replacing her position was based upon a nurse’s note of September
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4, 2007, indicating that Townsend could return to work full duty on
September 10, 2007. St. John’s claims this allegation is immaterial because
it did not receive the nurse’s note until after the expiration of Townsend’s
FMLA entitlement.
E. Open positions and other claims
St. John’s sent Townsend a letter on September 12, 2007, informing
her that she had a period of 90 days in which to apply for other positions
for which she was qualified. Jean Kapp, the Employee Relations Manager,
stated that she understood Townsend was unable to return to work before
the expiration of her FML on September 3, 2007. The Hospital placed her
on inactive status and offered her the opportunity to apply for open
positions for which she was qualified upon her release to work. Although
Townsend claims she applied for many positions, the Hospital states that
the evidence shows she applied for only two. She received one opportunity
to interview. Townsend was being considered for a position when her work
search period ended in December 2007, so St. John’s extended her job
search time frame. She was not hired for the position she was being
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considered for in December 2007.
When she failed to secure a position, the Plaintiff’s employment with
the Hospital was terminated on January 11, 2008.
Townsend identified three individuals working for St. John’s that she
believed to be similarly situated employees. Of those three individuals, two
were not case managers and did not report to the same supervisors as she
did. The Plaintiff alleges that Maxine Brown, a registered nurse, wore a
boot in the cath lab of the Hospital. She also wore braces. Brown was not
a case manager, did not have the same supervisors, worked on a different
floor in a different department, and was allegedly injured prior to 2000.
Another individual, Karen Bender, was identified by the Plaintiff as
using crutches for about three weeks in 2006 or 2007 while working in a
case management position on the sixth floor. However, Townsend did not
know any circumstances around her allegation that Bender used crutches
other than she had “hurt her knee” and was on crutches for about three
weeks. Neither of Townsend’s supervisors, Deal or Woodford, recalled
Bender working as a case manager while using crutches. Deal had no
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recollection of Bender’s injury. Although Woodford recalled Bender’s knee
injury, she did not remember whether Bender used crutches or any other
assistive devices.
The Hospital alleges Bender worked mainly as a floater performing
documentation services rather than significant case manager duties.
Townsend claims that Bender would work on various units in the Hospital
depending upon its need for case manager duties. Moreover, Townsend
was familiar with Bender’s work duties including when she was assigned to
the sixth floor. Patients on the sixth floor generally had longer Hospital
stays than did patients on the floor where Townsend was assigned.
Frequently, case managers on that floor had to deliver Medicare letters to
patients. The Hospital contends that these allegations are immaterial
because Bender’s supervisors, hospital leave staff, and employee health did
not know she performed all of these duties.
III. DISCUSSION
A. Legal standard
Summary judgment is appropriate if the motion is properly supported
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and “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). The
Court construes all inferences in favor of the Plaintiff. See Siliven v. Indiana
Dept. of Child Services, 635 F.3d 921, 925 (7th Cir. 2011). To create a
genuine factual dispute, however, any such inference must be based on
something more than “speculation or conjecture.”
See Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (citation omitted).
Ultimately, there must be enough evidence in favor of the non-movant to
permit a jury to return a verdict in its favor. See id.
B. Interference with FMLA benefits
The FMLA provides, “It shall be unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). To
prevail on an FMLA interference claim, a plaintiff must show that: (1) she
was eligible for the Act’s protections, (2) her employer was covered by the
Act, (3) she was entitled to leave under the Act, (4) she provided sufficient
notice of her intent to take leave, and (5) her employer denied her FMLA
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benefits to which she was entitled. See Burnett v. LFW Inc., 472 F.3d 471,
477 (7th Cir. 2006). The only issue is as to the final element–whether the
Hospital denied Townsend benefits to which she was entitled.
St. John’s contends that Plaintiff’s FMLA leave was exhausted by
August 20, 2007, at which point Townsend was entitled to no additional
FMLA benefits. Townsend claims that it was exhausted in early September
of 2007. Moreover, she alleges the Hospital is barred by the doctrine of
equitable estoppel from asserting that the end date was August 20, 2007.
Townsend further asserts that, even if her FML was exhausted by that date,
there is a genuine issue of material fact as to whether she was capable of
resuming her duties at the Hospital by August 20, 2007.
The Plaintiff cites Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579
(7th Cir. 2000), in contending that the Hospital is equitably estopped from
arguing that Townsend’s FML was exhausted by August 20, 2007. See id.
at 582. The court in Dormeyer stated:
Like other equitable doctrines, the doctrine of estoppel is
invoked in a variety of statutory contexts without reference to
particular statutory language. True, if the statute creates or
excludes a right to plead estoppel, the creative power of the
28
administering court or agency is suspended. But there is
nothing in the Family Leave and Medical Act that relates to
misleading eligibility notices or absences of notice; so far as
notice is concerned, the statute merely requires the employer to
post a general summary of the Act in the workplace. 26 U.S.C.
§ 2619. We do not read this provision to exclude the
application of the doctrine of an estoppel in an appropriate
case. And so an employer who by his silence misled an
employee concerning the employee’s entitlement to family leave
might, if the employee reasonably relied and was harmed as a
result, be estopped to plead the defense of ineligibility to the
employee’s claim of entitlement to family leave.
Id. In Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008), the
Seventh Circuit referred to and did not disapprove of its discussion of
equitable estoppel in Dormeyer, though Peters also was not an appropriate
case to determine if a defendant is barred from asserting a defense like the
one raised by St. John’s in this case. See id. at 598-99.
Townsend further notes that a number of circuits have recognized the
applicability of equitable estoppel to bar an employer from asserting a
defense akin to the one now raised by the Hospital, when the employer’s
conduct in some respect prejudiced the rights of the employee. See Kosakow
v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 722-26 (2d Cir.
2001); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-95 (8th Cir.
29
2002); Murphy v. FedEx National Ltl, Inc., 618 F.3d 893, 899-901 (8th Cir.
2010); and Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352, 35859 (5th Cir. 2006).
The Hospital claims that an employer’s failure to initially designate
time off as FMLA-qualifying does not necessarily mean that the employee
is entitled to additional time. See Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 89-90 (2002). Moreover, an employee must establish prejudice in
order to obtain relief for a FMLA violation. See id., see also Franzen v. Ellis
Corp., 543 F.3d 420, 426 (7th Cir. 2008).
St. John’s alleges that, even assuming equitable estoppel is recognized
within the Seventh Circuit, Townsend cannot establish prejudice for the
Hospital’s failure to notify her that her FMLA leave expired on August 20,
2007, because she was not able to perform the requirements of her job by
that date.5
It is also questionable whether Townsend could show that she
reasonably relied on the Hospital’s failure to designate her time off in
February 2007 as FMLA-qualifying. Because Townsend would also have
been aware that she was on FMLA leave for two weeks approximately six
months prior to August 20, 2007, any reliance on the Hospital’s
oversight might not be reasonable.
5
30
When the evidence is viewed in a light most favorable to Townsend,
there is information in the record tending to show that Dr. Mulshine
released her to sedentary work July 31, 2007, if Townsend could arrange for
transportation, which she was able to do. The problem is that although the
Plaintiff alleges now that her job was “sedentary,” that assertion is contrary
to the job description of the case manager position, the accuracy of which
Townsend did not dispute. Moreover, Townsend’s answers to questions at
her deposition demonstrate that her job was not sedentary in nature. Thus,
although the record establishes that Townsend was released for sedentary
work before August 20, 2007, her job was not a sedentary position. To the
extent that Townsend argues she would have scheduled a doctor
appointment in order to obtain an earlier release if she knew that her FML
expired on August 20, 2007, that assertion is speculative at best based on
the July 31, 2007 form provided by Dr. Mulshine.
On the same July 31, 2007 form that provided Townsend may
perform sedentary duty, Dr. Mulshine indicated that her return to work
date was “unknown” but would be after August 26, 2007.
31
Although
Townsend now claims that she no longer needed crutches by that date and
testified in 2011 that she did not know but was fairly certain that she was
no longer using crutches at that time, Maxey testified that she observed
Townsend on crutches on August 23, 2007. A contemporaneous email
from Maxey documented this observation. On August 28, 2007, Townsend
also told Dr. Mulshine that she could tolerate doing her job by using
crutches.
Townsend’s 2012 affidavit stating that she was not using
crutches by August 23, 2007 appears to be self-serving and simply is not
credible. It thus does not create a factual dispute on the issue. Although
a witness may by affidavit “clarify or expand upon” deposition testimony
that is ambiguous or incomplete, see Shepherd v. Slater Steels Corp., 168 F.3d
998, 1007 (7th Cir. 1999), the Court is unable to conclude that Plaintiff’s
memory is accurate regarding whether she was using crutches one year after
her deposition and almost five years after the meeting with Maxey.
The Plaintiff was re-evaluated on August 28, 2007. Dr. Mulshine
released Townsend to return to work on September 3, 2007. Based on
these undisputed facts, the Plaintiff is unable to establish prejudice due to
32
the Hospital’s failure to notify her that her FML expired on August 20,
2007, because she could not perform her job duties by that date. Upon
viewing the facts in a light most favorable to Townsend, the Court
concludes that her interference claim fails because she cannot show that St.
John’s denied benefits to which she was entitled.
Because she was no longer actually entitled to FMLA benefits,
summary judgment is warranted in favor of the Hospital on Townsend’s
interference with benefits claim as alleged in Count 1.
C. Retaliation claim
(1)
An employee alleging FMLA retaliation may proceed under the direct
or indirect methods of proof that are often seen in employment
discrimination litigation. See Scruggs v. Carrier Corp., 688 F.3d 821, 826
(7th Cir. 2012). Pursuant to the direct method, she “must present evidence
of (1) a statutorily protected activity; (2) a materially adverse action taken
by the employer; and (3) a causal connection between the two.”
Id.
(citation omitted). “A plaintiff can prevail under the direct method by
33
showing an admission of discrimination or by constructing a convincing
mosaic of circumstantial evidence that allows a jury to infer intentional
discrimination by the decisionmaker.” Id. at 827 (internal quotation marks
and citation omitted). The “convincing mosaic of circumstantial evidence”
may include factors such as suspicious timing, ambiguous statements from
which a retaliatory intent can be drawn, evidence of similarly situated
employees being treated differently, or evidence that the employer provided
a pretextual reason for the termination. See Jajeh v. County of Cook, 678 F.3d
560, 570 (7th Cir. 2012).
An employee proceeding under the indirect method of retaliation
must produce evidence that although the employee was performing her job
satisfactorily, she was treated differently from similarly situated employees
who did not request FMLA leave. See Smith v. Hope School, 560 F.3d 694,
702 (7th Cir. 2009). Townsend states that she is proceeding under both
the direct and indirect method.
Initially, St. John’s cites a few district court cases which have held that
a plaintiff’s FMLA retaliation claim necessarily fails if her interference claim
34
is rejected. Those cases are unpersuasive, in that they require a plaintiff to
meet a higher threshold than Scruggs or any other Seventh Circuit case
discussing the evidence an FMLA plaintiff must present. Moreover, the
Seventh Circuit has recently addressed the merits of a plaintiff’s retaliation
claim after first rejecting his interference claim. See Scruggs, 688 F.3d 82627; see also Nicholson v. Pulte Homes Corp.,
F.3d
, 2012 WL 3217620, at
*7-8 (Aug. 9, 2012). Accordingly, the Court declines to hold that its ruling
with respect to Townsend’s interference claim precludes her retaliation
claim.
(2)
Townsend alleges that pursuant to the direct method, there is
circumstantial evidence of a retaliatory motive. Townsend utilized a benefit
available to her under the Act when she took her FML. She was eventually
terminated when her FML expired. At the time of her injury, Townsend
was a fully satisfactory employee in good standing with the Hospital.
Townsend’s position was filled before the expiration of her FML.
Townsend was informed of that fact on August 10, 2007 and, although it
35
is not clear exactly when the hiring decision was made, a document
produced in discovery suggests that the date of decision was August 8,
2007. The record establishes that Townsend’s successor was notified of the
decision on August 17, 2007, and told that she would begin on September
10, 2007.
The Plaintiff further alleges that when Maxey, the Hospital’s FML
coordinator, realized she had made a mistake in calculating Townsend’s
available FML time and that her leave would not expire until September of
2007, she expressed the hope that Townsend’s physician would not release
her to work by that date. Maxey testified that the reason she felt that way
was because she felt bad about getting the date wrong. Townsend suggests
that the reason Maxey expressed that hope is that her case manager
position had already been filled.
Next, the Plaintiff asserts that although St. John’s did not have a
blanket policy preventing an employee from returning to work with
physician restrictions, the determination was made on a case-by-case basis.
Townsend claims that Hospital has no sensible explanation for why she
36
could not return to work if she were using crutches when another case
manager, Karen Bender, was the previous year allowed to return to work
while on crutches. It is not entirely clear how much longer Townsend may
have needed crutches upon returning to work, though it appears it would
have been no more than the two weeks that Bender claims to have used
crutches at work.
The Plaintiff next asserts that when she informed Deal on June 11,
2007, of her injury, Deal told her that he could make sedentary work
available when she was able to return to work. However, Deal would not
permit her to return when she was medically cleared six weeks later to do
sedentary work. The Hospital claims that although Townsend so testified
in her “self-serving affidavit,” the assertion is immaterial based on
Townsend’s perception of how long she would be away from work versus
how long she actually was away from work. Moreover, it is immaterial
because the Hospital was under no obligation to find her sedentary work.
Townsend asserts that for these reasons, there is at least a genuine
issue of material fact as to whether there is a connection between her FML
37
and the Hospital’s unwillingness to return her to her position. Moreover,
there is a factual question as to whether the Hospital reasonably believed
that Townsend was incapable of performing a case manager’s duties.
Townsend claims there is sufficient evidence of a retaliatory motive under
the direct method.
(3)
When certain inferences are construed in the Plaintiff’s favor, the
Court concludes that factual disputes preclude the entry of summary
judgment on her retaliation claim when it is considered under the direct
method. There are factual questions regarding whether there is a causal
connection between Townsend’s statutorily protected activity in taking
FMLA and her termination. Although Townsend has not pointed to any
direct evidence of retaliation, the record contains enough circumstantial
evidence for the Court to conclude that summary judgment is not
warranted.
Factors such as suspicious timing and ambiguous statements can be
useful in establishing a “convincing mosaic” of circumstantial evidence. See
38
Jajeh, 678 F.3d at 570. It appears that a decision was made on August 8,
2007, to fill Townsend’s position. At the time, Maxey and Deal believed
Townsend’s FML was scheduled to end on August 26, 2007. The record
indicates St. John’s decided to replace Townsend no later than one week
after learning from Dr. Mulshine that Townsend would not be released to
work until after August 26, 2007.
After Townsend’s successor was hired, the Hospital was told that
Townsend’s FML was extended to September 2, 2007. Maxey’s email to
Deal about the mistaken date could be interpreted at least a couple of
different ways. The relevant portion states:
I don’t know if [Townsend’s physician] will give her
a full release to return to her job as it involves a lot
of walking. Hopefully, he will extend her leave for
another week which will get us past the 12-week
mark. It seems doubtful to me that she will be
ready to jump back into her regular routine but I
could be wrong.
Maxey Tr. 33-34.
The statement could be interpreted in a manner
consistent with how Maxey testified–she felt responsible about getting the
date wrong, was sorry, and hoped it would not be significant. At the same
39
time, Maxey was now aware it appeared that Townsend was entitled to her
job until September 2, 2007. She also knew that Townsend’s successor had
been hired. Thus, a plausible interpretation is that Maxey was expressing
hope that Dr. Mulshine would extend the date so that the Hospital would
not face what may have seemed like a major dilemma. If Townsend had
been released, there would have been two individuals for one position.
Although St. John’s was mistaken about when Townsend’s FML
ended, the Court concludes that it is what the Hospital believed at that
time that is significant in determining if it had a retaliatory motive. When
the evidence is viewed in a light most favorable to the Plaintiff, a jury could
conclude that the Hospital wanted Townsend’s FML to expire before Dr.
Mulshine released her to work.
Another factor to consider is whether similarly situated employees
were treated differently. The Hospital contends that Karen Bender is not
similarly situated to Townsend because Bender while using crutches worked
on a different floor as a floating case manager, which it claims involved
work that was mostly sedentary. Deal and Woodford were not involved in
40
any decision and had no knowledge that Bender used crutches for two
weeks in late 2006. In her affidavit, Bender states that she did not take any
leave for her knee injury. Bender did not recall speaking to Deal and
Woodford about using crutches while working and did not remember seeing
them while using crutches. Moreover, Bender did not consult with or seek
permission from Employee Health or Maxey regarding her use of crutches
in 2006.
The Hospital further contends that Bender and Townsend were not
similarly situated because they did not have the same supervisors.
However, they need not have “identical employment files.” See Good v.
University of Chicago Medical Center, 673 F.3d 670, 675 (7th Cir. 2012). “So
long as the distinctions between the plaintiff and the proposed comparators
are not so significant that they render the comparison effectively useless,
the similarly situated requirement is satisfied.” Id. (internal quotation
marks and citation omitted). Although employees typically must deal with
the same supervisor in order to be similarly situated, the “inquiry is a
flexible one that considers all relevant factors, the number of which depends
41
on the context of the case.” See Serednyj v. Beverly Healthcare, LLC, 656 F.3d
540, 551 (7th Cir. 2011) (internal quotation marks and citation omitted).
Although it is somewhat curious that Bender was not prohibited from
using crutches while working, this factor is not particularly probative
because she and Townsend did not have the same supervisors and
apparently had different job duties. When considered along with the
previously discussed suspicious timing and the ambiguous statement,
however, the Court concludes that Townsend has presented sufficient
evidence under the direct method to create a factual dispute as to whether
there is a causal connection between her protected activity and her
termination.
IV. CONCLUSION
Based on the foregoing, the Court concludes that St. John’s is entitled
to summary judgment on Townsend’s claim alleging interference with her
rights under the FMLA.
However, the existence of factual disputes
precludes the entry of summary judgment in the Hospital’s favor as to
Townsend’s FMLA retaliation claim.
42
Ergo, the Defendant’s Motion for Summary Judgment [d/e 30] is
ALLOWED IN PART and DENIED IN PART.
The Motion is ALLOWED as to Count 1 and DENIED as to Count
2.
The final pretrial conference remains scheduled for October 24, 2012.
ENTER: September 21, 2012
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
43
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