Coleman v. SOI Department of Mental Health et al

Filing 147

Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/24/2013: defendants' motion for summary judgment [dkt. 115] is granted with respect to Coleman's claims for race discrimination in violation of Title VII, § 1983, and § 1981; interference with rights under the FMLA as to Jankowski and Gulli, retaliation in violation of the FMLA against all defendants; and deprivation of due process in violation of the Fourteenth Amendment. Defendants' motion for summary judgm ent is denied with regard to Colemans FMLA interference claim against the IDHS and Hammond. The case will be called for a status hearing on October 15, 2013 at 8:30 a.m. The parties are directed to engage in a sincere effort to settle this case and to report on their progress at the status hearing.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

STACEY A. COLEMAN,
Plaintiff,
vs.
ILLINOIS DEPARTMENT OF HUMAN
SERVICES, f/k/a ILLINOIS DEPARTMENT
OF MENTAL HEALTH, MICHAEL
JANKOWSKI, CHRISTINE HAMMOND,
and JERI GULLI,
Defendants.

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No. 09 C 3596
Judge Joan H. Lefkow

OPINION AND ORDER
Plaintiff, Stacey A. Coleman alleges race discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983,
interference with her rights and retaliation under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601 et seq., and violation of her procedural due process rights under the
Fourteenth Amendment of the United States Constitution against the Illinois Department of
Human Services (“IDHS”), Michael Jankowski, Christine Hammond, and Jeri Gulli (collectively
referred to as “defendants”).1 Presently before the court is defendants’ motion for summary
judgment [dkt. 115]. For the reasons that follow, defendants’ motion is granted in part and
denied in part.

1

The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and venue is appropriate
under 28 U.S.C. § 1391. Coleman exhausted her administrative remedies and timely filed this lawsuit
within 90 days of receiving a notice of right to sue. See Conner v. Ill. Dep’t of Natural Res., 413 F.3d
675, 680 (7th Cir. 2005).

LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings
and assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee’s notes. The
party seeking summary judgment bears the initial burden of proving that there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use
the evidentiary tools listed above to designate specific material facts showing that there is a
genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.
2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at
598–99. Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all
facts in a light most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986).

2

BACKGROUND2
Coleman began working at IDHS’s Howe Development Center (“Howe”) in
Tinley Park, Illinois as a support services worker in the dietary department. IDHS development
centers, such as Howe, were residential programs serving people with severe medical and/or
behavioral needs. Most of Coleman’s time was spent in the tray line, which was a position that
most employees at Howe did not enjoy. Coleman believed that approximately eighty percent of
the employees at Howe were African-American while twenty percent were Caucasian.
Hammond was the director of nutrition services. As the director of nutrition services, she
oversaw the main kitchen and clinical services at Howe. Her duties also included supervising
employees, including Coleman. Jankowski was the dietary manager at Howe. Hammond was
Jankowski’s supervisor, and Jankowski was Coleman’s supervisor. Between 2006 and 2010,
Gulli was the director of human resources at Howe. The human resources department processed
leaves of absence, discipline, termination, and employee benefits, among other programs. Gulli
was never Coleman’s supervisor and could not recall if she had ever met Coleman.

2

The facts in the background section are taken from the parties’ Northern District of Illinois
Local Rule 56.1 statements of fact and construed in the light most favorable to Coleman. Statements of
fact unsupported by admissible evidence will not be considered. Additionally, failure to comply with
Local Rule 56.1 in responding to a party’s statement of facts results in admission of those facts. See
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated
by the local rules results in an admission.”); McGuire v. United Postal Serv., 152 F.3d 673, 675 (7th Cir.
1998) (“An answer that does not deny the allegations in the numbered paragraphs with citations to
supporting evidence in the record constitutes an admission.”). In accordance with its regular practice, the
court has considered the parties’ specific objections and responses and has included in this background
section only those portions of the Local Rule 56.1 statements and responses that are appropriately
presented, supported, and relevant to the resolution of this motion.

3

I.

IDHS’s Affirmative Attendance Policy
A.

Affirmative Attendance/Time Off Requests

The IDHS had an attendance policy which defined unauthorized absences as those for
which the time off was not approved.3 Employees were allowed five excused absences each
year. The policy also required that employees report to work on time each day. Additionally,
employee requests for benefit time needed to be supported with a time-off form signed by the
employee. The employee needed to submit the request for time off to his or her supervisor, who
consulted with the human resources department to determine whether the employee provided
sufficient justification for the request. An employee who missed work due to a medical illness
and received an unexcused absence could have the absence letter treated as excused by providing
the proper medical certification. In an emergency, an employee could call in and submit a
formal request for time off after returning to work.
B.

One-Hour Call-In

An employee who planned to miss work on a certain day was required to call in to notify
their supervisor at least one hour before their shift started. The only exception was in cases of
extenuating circumstances, such as incapacitation, which prevented an employee from meeting
the one-hour call-in requirement. There were no restrictions on how early an employee could
call in before his or her shift. Regardless of when the call arrived, either an operator at the
switchboard or a manager in the kitchen would take the call and record it in the logbook. If an
employee called in less than an hour before the start of his or her shift, the employee was

3

The IDHS and Coleman’s union agreed to the terms specified in the affirmative attendance

policy.

4

required to present proof for why he or she did not call in a timely matter. If the employee failed
to present such proof, he or she would receive an unauthorized absence.
Eleven unauthorized absences with a call-in, six unauthorized absences with no call, or a
combination of excessive unexcused absences with call-ins or no calls in a twenty-four month
period, resulted in termination. Gulli and Hammond, in their roles as department supervisors,
had the authority and discretion to waive the one hour call-in requirement. Hammond had the
final authority to alter an unexcused absence resulting from a late call-in.
C.

Bereavement

The IDHS attendance policy permitted an employee to use sick time for bereavement. In
requesting time off for bereavement, an employee had to complete a time-off request form in
advance and submit it for approval.
II.

IDHS’s FMLA Leave Policy
The IDHS’s FMLA leave policy permitted an employee to request time off to care for an

immediate family member with a serious health condition or to take time off because of their
own serious health condition. FMLA leave was not to be considered in disciplining employees
for unauthorized absences under the IDHS’s attendance policy.
In order to have an absence covered by the FMLA, an employee needed to submit an
FMLA application to the human resources department. Included with the application was a
health care provider certification that the applicant’s physician needed to complete, which
detailed the nature of the applicant’s illness. The amount of time it took the human resources
department to review an application was dependent on the volume of paperwork being processed
at the time. If approved, the human resources department notified the applicant’s supervisor,

5

whose signature was required for final approval. After an employee was approved for FMLA
leave, the employee could use that leave to take specific days off by completing a request-fortime-off form and presenting it to his or her supervisor.
If an employee required FMLA time prior to completing the paperwork, he or she was
required to use accumulated benefit time. If the employee had already used available benefit
time, the employee was required to use one of the five excused absences that were allowed each
year. Absent extenuating circumstances, the approval date of an employee’s FMLA leave was
the date the employee requested the blank FMLA documents from the human resources
department. The employee had 15 days to return that paperwork to the human resources
department. If the employee failed to do so, the approval date for the employee’s FMLA leave
was the date the employee returned the completed documents to the human resources
department. The IDHS FMLA policy instructed an employee who failed to submit this
paperwork within 15 days to “contact the Bureau of Labor Relations office immediately.” Pl.
L.R. 56.1 Ex. 1, Dkt. 124–1, Page ID #756.
When foreseeable, an employee seeking to use FMLA was required to provide their
supervisor with 30 days notice. When not foreseeable, however, an employee was required to
provide notice as soon as practicable, or within one work day before learning of the need to take
FMLA covered time off. Additionally, in an unforeseeable circumstance, the employee could
provide “timely notice,” meaning notice within two working days of returning to work that the
time off was for an FMLA-qualifying reason.
The IDHS’s FMLA policy also required that the IDHS notify an employee within two
days of approving time off as FMLA-covered. If that notice was given verbally, the policy

6

required that it be confirmed in writing 10 days later. The policy forbade retroactive designation
of time off as FMLA-covered leave except when the IDHS knew the reason for the time off but
was unable to confirm that it was FMLA-qualifying or where the medical certification had not
yet been provided. In such a case, IDHS made a preliminary determination and then notified the
employee; if the medical certification later confirmed the absence was for an illness deemed to
be FMLA-qualified, the preliminary designation became final.
Hammond did not have decisionmaking authority regarding whether to approve an
application for FMLA leave, nor could she assign the date that the leave was approved.
Hammond could, however, approve the requested dates as FMLA leave after the proper
paperwork had been processed by the human resources department. Jankowski’s only role in the
FMLA approval process was to direct employees to the human resources department if
employees requested FMLA leave from him.
III.

Coleman’s Attendance Issues
A.

Coleman’s Time-Off in 2006 to Care for Her Daughter

In 2006, Coleman’s daughter, who suffered from chronic asthma, was hospitalized after
suffering a severe asthma attack and coming down with pneumonia. After her daughter was
released from the hospital, Coleman had to administer special medication to her periodically
throughout the day, which caused her to be absent from or late to work on a number of
occasions.
In early 2006, Hammond and Jankowski suspended Coleman’s employment because of
excessive tardiness. Coleman explained that her daughter’s medical condition caused her to be
late for work; neither Hammond nor Jankowski informed Coleman that she could take FMLA

7

leave at that time. Coleman’s union representative told her that she should request FMLA leave
and, on April 6, 2006, Coleman submitted a request for FMLA leave to care for her daughter.
Coleman’s request was ultimately approved as of April 5, 2006, and she was granted intermittent
FMLA leave to care for her daughter’s chronic condition. The FMLA leave to care for her
daughter expired on January 1, 2007.
B.

Coleman’s Time-Off in 2006 to Care for Her Mother

That same year, Coleman missed work because her mother was hospitalized and needed
at-home care. Coleman’s mother was a double amputee who suffered from paranoid
schizophrenia and congestive heart failure; she required 24-hour care. On August 4, 2006,
Coleman called in at 6:05 a.m. to request the day off as FMLA-covered to care for her mother.4
The next day, Coleman submitted a time off request. Hammond told Coleman that she had
approved the request for time off. The IDHS’s records, however, indicate that Coleman received
an unexcused absence for that day.
On September 9, 2006, Coleman’s mother was admitted to the hospital for congestive
heart failure and remained in the hospital until September 15, 2006. Coleman had to be present
at the hospital to make medical decisions. On September 12, 2006, Coleman notified the human
resources department, and Gulli sent Coleman IDHS’s standard FMLA policy form indicating
that she may be eligible for FMLA leave, instructing Coleman to submit a health care provider
certification. Pl. L.R. 56.1 Ex. 15, Dkt. 125–13.
On November 13, 2006, Coleman submitted the FMLA request to provide intermittent
care for her mother, which was approved that day. Coleman’s FMLA leave in connection with

4

Coleman’s shift began at 6:00 a.m. for the dates that she called-in late.

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caring for her mother expired on April 1, 2007. On November 18 and 19, 2006, Coleman called
in to request FMLA leave to care for her mother. Her written request for time off, however,
reflects that she asked for accumulated holiday time for November 18 and FMLA leave for
November 19. The November 18 absence was treated as unexcused, but the request for
November 19 was excused. Pl. L.R. 56.1 Ex. 17, Dkt. 125–15.
C.

Coleman’s Time-Off in 2006 and 2007 to Treat Her Migraines

In the fall of 2006, Coleman began suffering from debilitating migraines and was
diagnosed with Tennial Migraine Headaches, also known as peri-menopausal migraines.
Coleman took medication to treat her condition, and the medication made her drowsy. As a
result, Coleman sometimes slept through her alarm and was late for work. Coleman informed
Hammond about her medical condition and that her medication caused her to oversleep.
On February 5, 2007, Coleman saw a doctor for a severe migraine and missed work. The
migraine continued into the next day causing Coleman to miss work again. Both days, Coleman
called in to request FMLA leave.5 On February 9, 2007, Coleman returned to work and told
Hammond that she wanted to take FMLA leave for her absences on February 5 and February 6.
Coleman provided Hammond with her doctor’s preliminary diagnosis and return to work note,
and again explained to Hammond that she was on medication that caused her to oversleep.
Hammond treated Coleman’s absence on February 5 as an excused absence.
According to Coleman, in the February 9, 2007 conversation, Hammond told Coleman
that she would need to use her remaining benefit time until her FMLA application was approved.
Coleman told Hammond that her doctor ordered further medical tests over the next two months.

5

Coleman’s affidavit does not indicate with whom she spoke when calling in these days.

9

Hammond told Coleman to submit her FMLA application once she received a final diagnosis.
Hammond stated that she would backdate the February 6, 2007 absence as FMLA-covered once
Coleman’s FMLA paperwork had been approved by the human resources department.
Hammond did not tell Coleman that she needed to have FMLA paperwork submitted by a certain
date.
On February 9, 2007, Coleman learned that her grandmother had passed away. On
February 10, 2007, Coleman called in an hour before her shift started to request an excused
absence as a bereavement day, but she received an unexcused absence for this day. Then,
between February 24 through February 27, 2007, Coleman called in late to request FMLA leave
to care for her mother. When Coleman returned to work, she provided Hammond with a time-off
request and asked that her absences those days be treated as covered by the FMLA. Hammond
initially approved all four days as covered by the FMLA but later recategorized Coleman’s
request to only reflect her absence on February 25, 2007 as covered by the FMLA.
On March 12, 2007, Coleman called in late, requesting two hours of personal time
because of a migraine. She called an hour later asking for the entire day off. The following day,
Coleman requested that her absence from the prior day be treated as FMLA-covered. On
March 13, 2007, Hammond told Coleman that her request would be backdated as FMLAcovered once her FMLA application was approved.
On March 27 and 28, 2007, Coleman suffered from a severe migraine. On March 27,
2007, Coleman called in late and requested FMLA leave. The next day, Coleman timely called
in and requested two hours of personal time with the hope that she would come into work later
that day. An hour-and-a-half later, Coleman called back and requested the entire day off because

10

her migraine worsened. On March 29, 2007, Coleman provided Hammond with a return to work
certificate from her doctor and submitted a time-off request asking that her absences from the
two prior days be treated as FMLA-covered. Hammond explained that Coleman needed to first
submit the necessary paperwork to the human resources department before she could treat those
absences as covered by the FMLA. Hammond told Coleman that she would count the absences
from March 27 and 28, 2007 as excused, and that Hammond would backdate the excused
absences as FMLA-covered once Coleman’s FMLA application was approved by the human
resources department.
On April 2, 2007, Coleman suffered another migraine and called in late to request an
excused absence until her FMLA leave was approved. Hammond treated Coleman’s absence as
an unexcused absence because she violated the one-hour call-in policy. The same day,
Hammond recategorized Coleman’s excused absence from March 27 as an unexcused absence,
noting that Coleman only had approval to take FMLA leave to care for her mother. The same
day, Hammond issued Coleman a pre-disciplinary hearing notice based on excessive absences.
The hearing was scheduled for April 5, 2007; it was rescheduled at Coleman’s request, however,
and eventually set for April 20, 2007. In the interim, on April 10, 2007, Coleman picked up an
FMLA application from the human resources department and delivered it to her doctor’s office.
Coleman’s doctor was on vacation at the time.
IV.

Coleman’s Termination
At the hearing on April 20, 2007, two union officials represented Coleman. Hammond

and Jankowski attended, but Gulli did not. Coleman and her representatives pointed out that
Coleman called in late for the dates in question because her migraine medication made her

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oversleep. Additionally, they noted that Hammond never told Coleman that she would
recategorize the absences from February and March 2007 as unexcused. Rather, Coleman
believed that those absences would be covered once she completed her FMLA paperwork.
Coleman explained that the delay in submitting her FMLA paperwork to the human resources
department was due to her doctor’s vacation and that she had not previously submitted that
paperwork because she was waiting for a final diagnosis from her doctor. As a result of the
hearing, the February 27, 2007 unexcused absence (the day Coleman missed to care for her
mother) was changed to an excused absence.6 The IDHS noted that Coleman timely called in
requesting FMLA leave for that day and that she had previously requested and been granted
FMLA leave to care for her mother.
Hammond and Jankowski told Coleman at the hearing to submit her FMLA paperwork to
request intermittent leave for her migraines and they would contact management to determine
whether her absences would be approved as FMLA-covered. On April 23, 2007, Coleman
picked up the FMLA packet from her doctor, and on April 24, 2007, Coleman submitted her
completed FMLA packet to the human resources office and provided a copy to Hammond.
After the hearing, Hammond and Jankowski recommended that Coleman be terminated
for excessive unexcused absences. Namely, they relied on Coleman’s accumulating sixteen
unexcused absences over a twenty-four month period. Included within those sixteen unexcused
absences were the eight unexcused absences between February and April 2007—the dates that
Coleman believed were counted as covered by the FMLA. Following the hearing, Coleman

6

Coleman did not raise the issue of race discrimination at the April 20, 2007 hearing; however,
she discussed the topic with management, and her union representatives raised the issue at a predisciplinary hearing unrelated to the April 20, 2007 hearing.

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received three additional unexcused absences on April 23, April 26, and May 15, 2007.
Hammond and Jankowski submitted a disciplinary action form to human resources department
listing Coleman’s unexcused absences from 2007 in addition to call-in logs and notes from the
pre-disciplinary meeting. The human resources department created a disciplinary packet and
forwarded it to the Human Services Central Office in Springfield, Illinois. From there, the
packet was sent to IDHS’s labor relations department, which reviewed the paperwork and then
sent it to the Illinois Department of Central Management Services (“CMS”).
CMS had the authority to approve or deny the recommended disciplinary action. On
May 15, 2007, Hammond sent Gulli an email indicating that she anticipated that Coleman would
be terminated. On May 21, 2007, the IDHS suspended Coleman for an abuse of time violation.
On May 23, 2007, Hammond and Jankowski informed Coleman that she was being suspended
pending discharge and instructed her to leave the premises. On June 13, 2007, Gulli approved
Coleman’s FMLA leave beginning on April 10, 2007 (the date that Coleman retrieved the FMLA
forms from the human resources department). One week later, on June 19, 2007, CMS approved
Hammond’s and Jankowski’s recommendation to terminate Coleman’s employment with an
effective date of June 20, 2007.
V.

Coleman’s Disciplinary History and Evaluations
Coleman received annual evaluations from her supervisors. Coleman’s evaluations

consistently stated that she needed to improve her use of time. Specifically, in July and August
2005, Coleman was tardy nineteen times, and in 2006, Coleman was tardy on twenty-three

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occasions.7 Coleman received a one-day suspension for an unauthorized absence on August 4,
2006; a three-day suspension for refusing to work mandatory overtime on August 20, 2006; a
five-day suspension for unauthorized absence from the worksite on October 28, 2006 and
November 2, 2006; a five-day suspension for unauthorized absences on November 18, 2006 and
December 2, 2006; and a five-day suspension for conduct unbecoming a state employee as a
result of Coleman’s allegedly using a racial epithet against Donald Franklin, an AfricanAmerican trayline supervisor.
Franklin was also the impetus for Coleman’s five-day suspension for being absent from
the worksite on October 28, 2006 and November 2, 2006. Franklin reported Coleman for these
absences. Coleman states that she was present those days. Coleman explained that she went to
her car to retrieve her medicine when she was marked down as absent. Coleman also states that
she called in requesting FMLA leave on November 18, 2006 and was present at work on
December 2, 2006. Moreover, Coleman denied using a racial slur against Franklin. Hammond
and Jankowski, however, discredited Coleman’s explanation. Coleman filed a grievance in
connection with her suspension for calling Franklin a racial epithet and her suspension was later
reduced to two days.
In connection with her numerous violations of the IDHS attendance policy, from
December 2, 2005 to February 2, 2006, Coleman was placed on a period of probation called

7

With regard to the 2006 violations for excessive tardiness, Coleman states that she was late for
work those days because she was caring for her daughter and her mother. Thirteen of those instances of
tardiness occurred before Coleman received FMLA leave to care for her daughter and all twenty-three of
the instances of tardiness occurred before Coleman received FMLA leave to care for her mother. See Def.
L.R. 56.1 Ex. G, Dkt. 117–6, Page ID 643.

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“proof status,” and on November 9, 2006 and February 9, 2007, Coleman was referred to the
employee assistance program.
Coleman had received position evaluations from 1998 to 2002, and between 2004 and
2005. Coleman’s evaluations from 2004 and 2005 stated that, “Stacey has continued to perform
her duties well and on occasion has taken TA assignments”; exceeded expectations in certain
areas; and “her work was done with correctness and completed with overall quality.” Pl. L.R.
56.1 ¶ 38.
VI.

Other Employees at Howe
A.

Phyllis Kline

Phyllis Kline, Caucasian, worked at Howe as a support services worker under Hammond
and Jankowski’s supervision. Kline took FMLA leave five times in four years and refused
mandatory overtime in 2006; however, she was not terminated or reprimanded. In September
2007, Kline refused to work overtime due to a pending surgery. Instead of disciplining her,
Hammond instructed Kline to obtain a medical certification and her request for FMLA leave
would be backdated; Kline suffered no repercussions for failing to work overtime on this
occasion.
B.

Gail Filomena

Gail Filomena, Caucasian, worked at Howe as a support services worker under
Hammond and Jankowski’s supervision. Filomena took FMLA leave four times in three years.
She took one period of intermittent FMLA leave to care for husband and three other times to
care for herself. Filomena submitted her paperwork to the human resources department prior to
taking approved leave. In 2007, Filomena contracted bronchitis and requested FMLA leave.

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Her request was approved immediately and Filomena was not reprimanded for refusing to work
overtime.8

8

Coleman does not indicate whether the human resources department approved Filomena’s
FMLA request before she refused to work overtime or whether she was even disciplined.

16

C.

Bill Brundies

Bill Brundies, also Caucasian, worked at Howe under Hammond and Jankowski’s
supervision. He called in late to attend his grandfather’s funeral and Hammond and Jankowski
permitted him to take a week off from work. Brundies, however, did not receive an unexcused
absence.9
D.

Kerry Fullerton

Kerry Fullerton, Caucasian, worked as a support service worker at Howe under
Hammond’s supervision. In 2009, Fullerton had accumulated seventeen absences, nine of which
were unexcused. As a result of her excessive absenteeism, in March 2009, Hammond issued
Fullerton a notice of pre-disciplinary hearing. In response to the notice, Fullerton resigned on
April 13, 2009.
D.

Janice Huff

Janice Huff, African-American, worked at Howe as a support services worker in the
dietary department and reported to Hammond and Jankowski. In February 2007, Huff
underwent foot surgery and was granted FMLA leave for the surgery and post-surgical recovery.
Pursuant to her doctor’s orders, Huff could not work more than eight hours a day. Hammond,
however, had Huff work overtime. When Huff informed Hammond about her condition,
Hammond and Jankowski suspended her for four days based on refusal to work overtime.
Jankowski told Huff that her FMLA leave had expired; however, Huff called Gulli, who
informed her that she still had FMLA leave days. Huff called her union representative who

9

Coleman does not indicate when Brundies’s grandfather passed away.

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contacted Hammond and provided her with Huff’s medical documentation; Hammond thereafter
withdrew Huff’s suspension.
E.

Donald Franklin

Donald Franklin, African-American, worked at Howe as a trayline supervisor. In the fall
of 2006, Coleman complained that Franklin had been harassing her, which exacerbated her
migraines. Coleman repeatedly asked Hammond and Jankowski to reassign her to avoid
Franklin. Coleman explained to Hammond and Jankowski of the negative effects that Franklin
had on her migraines; however, they ignored her requests.
ANALYSIS
I.

Motion to Strike Janice Huff’s Declaration
Defendants have moved to strike Huff’s declaration arguing that Coleman failed to

produce it during discovery despite their requests for documents supporting Coleman’s claims.
Coleman argues that she disclosed Huff as a witness in her Federal Rule of Civil Procedure
26(a)(1) initial and supplemental disclosures. In addition, Coleman states that she provided
Huff’s affidavit to defendants’ counsel via email and during a pre-settlement conference
exchange of position papers. Neither side, however, can locate the email that Coleman’s counsel
sent to defendants’ counsel (who subsequently withdrew from the case) enclosing Huff’s
affidavit; nor could defense counsel locate the declaration in the files of his former colleague.
Rule 26(a) provides that “a party must . . . provide to the other parties . . . the name . . . of
each individual likely to have discoverable information—along with the subjects of that
information.” Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26(e) further imposes a duty to supplement
Rule 26(a) disclosures. Fed. R. Civ. P. 26(e). Rule 37 precludes a party who fails to properly

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identify a witness from relying on that witness’ testimony in support of a dispositive motion.
See Fed. R. Civ. P. 37(c)(1). Although defendants dispute that they received Huff’s declaration,
they were undoubtedly aware of her as a potential witness. In addition, that Coleman disclosed
the declaration during settlement negotiations undercuts defendants’ argument regarding surprise
and prejudice. Because defendants were aware of Huff as a potential witness and her declaration
more than six months prior to the defendants filing the present motion, the court declines
defendants’ motion to strike the declaration from Coleman’s response.
II.

Race Discrimination10
Coleman alleges that defendants discriminated against her based on race in violation of

Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983 by disciplining her for requesting to take
FMLA leave.11 Coleman proceeds under the indirect method of proof as espoused by the
Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). Under this approach, to demonstrate a prima facie case of
discrimination Coleman must show that (1) she is a member of a protected class; (2) she was
meeting the IDHS’s legitimate expectations; (3) she suffered an adverse employment action; and
(4) similarly situated employees outside of her protected class were treated more favorably.

10

Although she did not allege a hostile work environment claim in her complaint, Coleman
insinuates that she was subjected to a hostile work environment. Defendants moved for summary
judgment on this issue and Coleman did not respond. Because Coleman failed to develop any argument
in response to defendants’ motion for summary judgment regarding a hostile work environment claim,
she is deemed to have abandoned any hostile work environment claim. See Palmer v. Marion Cnty.,
327 F.3d 588, 597–98 (7th Cir. 2003); De v. City of Chicago, 912 F. Supp. 2d 709, 734–35 (N.D. Ill. Dec.
14, 2012),
11

The method of proving discrimination is the same under Title VII, 42 U.S.C. § 1981, and
42 U.S.C. § 1983. See McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009); Williams v. Seniff,
342 F.3d 774, 788 n.13 (7th Cir. 2003).

19

Naficy v. Ill. Dep’t. of Human Servs., 697 F.3d 504, 511 (7th Cir. 2012). If Coleman establishes
a prima facie case, defendants must present evidence showing a legitimate, nondiscriminatory
reason for terminating her employment. Id. Coleman must then present evidence showing that
defendants’ stated reason is pretextual. Id. at 511–12. The parties do not dispute the first and
third prongs of the test as Coleman is African-American whose employment defendants’
terminated.12 The parties do, however, dispute the second and fourth prongs.
A.

Legitimate Employment Expectations

Defendants argue that Coleman’s violation of the IDHS’s attendance policy compounded
with numerous other instances of disciplinary infractions warranted her termination. Coleman,
however, contends that defendants should have excused the majority of her unexcused absences
as covered by the FMLA. Defendants’ reliance on the attendance policy, argues Coleman, was
cover for their real reason for terminating her employment, which she contends was motivated
by racial animus. In cases like this, where evidence regarding an employer’s legitimate
expectations becomes inextricably intertwined with the pretext analysis, the court may consider
the second prong of the prima facie test when examining whether the employer’s stated reason
for taking an adverse action was pretextual. See Duncan v. Fleetwood Motor Homes of Ind.,
Inc., 518 F.3d 486, 491 (7th Cir. 2008) (“[Where] an employer has cited performance issues as
the justification for its adverse action, the performance element of the prima facie case cannot be
separated from the question whether the employer proffered a nonpretextual explanation for its
challenged conduct.”); Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477–78 (7th Cir. 2010)

12

Coleman does not argue that any prior suspensions she received were adverse actions. Thus,
the court only considers her termination as the adverse action giving rise to her discrimination claims.

20

(“In some cases, though, the issue of satisfactory performance and the question of pretext
overlap. When the employer asserts as the nondiscriminatory reason for termination that the
employee was not meeting legitimate job expectations, the credibility of the employer’s assertion
is an issue for both the second element of the plaintiff’s prima facie case and the pretext
analysis.”). Accordingly, whether Coleman was meeting defendants’ legitimate employment
expectations will be discussed in section II.C in the pretext analysis.
B.

Similarly Situated Employees

The similarly situated employee inquiry, which calls for a “flexible, common sense”
approach, asks whether there are “enough common features between the individuals to allow
[for] a meaningful comparison.” Argyropoulos v. City of Alton, 539 F.3d 724, 735 (7th Cir.
2008) (internal quotation marks omitted). While “[s]imilarly situated employees must be
directly comparable to the plaintiff in all material respects, which includes showing that the
coworkers engaged in comparable rule or policy violations,” Naik, 627 F.3d at 600 (internal
quotation marks omitted), they need not be “identical in every conceivable way.” Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). In order to show that an employee was similarly
situated, Coleman must demonstrate that the employee “(1) dealt with the same supervisor, (2)
[was] subject to the same standards, and (3) engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish [his or her] conduct or the
employer’s treatment of [him or her].” Id. at 847 (internal quotation marks omitted). When
analyzing this final prong of the similarly situated employee test, courts look to whether coworkers “engaged in comparable rule or policy violations and received more lenient discipline.”
Id. at 850 (internal quotation marks omitted).

21

Coleman identifies Caucasian coworkers at Howe who reported to Hammond and
Jankowski: Kline, Filomena, Fullerton, and Brundies. Defendants argue that Coleman cannot
establish the third prong of the comparator test, namely, that any of her proposed comparators
engaged in conduct of comparable seriousness. Defendants also note that, unlike Coleman,
Kline, Filomena, and Brundies did not violate the one-hour call-in policy.
First, Coleman argues that Fullerton accumulated seventeen absences, nine of which were
unexcused, which should have resulted in her termination under IDHS policy. Defendants,
however, note that Fullerton was issued a pre-disciplinary meeting notice after she failed to
return from a non-service related disability leave. Fullerton sent a letter resigning and never
returned to work at Howe. Fullerton is thus not an appropriate comparator.
Coleman’s evidence regarding Kline, Filomena, and Brundies is stronger. With regard to
Kline, on one occasion, Kline told Hammond that she was having surgery and was going to take
FMLA leave. Hammond permitted Kline to obtain a medical certification and treated Kline’s
time off as FMLA-covered even though she had not yet formally made the request for leave.
Second, Coleman, relying on Huff’s affidavit, states that Filomena took FMLA leave after
contracting bronchitis and refused to work overtime. She does not indicate, however, whether
Filomena had already been approved to take FMLA leave when refusing to work overtime.
Coleman, in any event, was suspended for three days for refusing to work overtime. Coleman
also states that Brundies called in late to attend his grandfather’s funeral but did not receive an
unexecused absence. Coleman received an unexcused absence for missing work on the day of
her grandmother’s funeral despite having requested it as a bereavement day.

22

Although not identical in all respects, Kline, Filomena, and Brundies held similar
positions to Coleman, reported to Hammond, and had their leave requests approved immediately
or retroactively while Coleman did not. When Coleman missed work and requested to take
FMLA or bereavement leave, Hammond was obstinate and treated those absences as unexcused.
Coleman has thus identified similarly situated employees necessary to satisfy the third prong of
the comparator test. See Coleman, 667 F.3d at 851 (“Where a proposed comparator violated the
same rule as the plaintiff in an equivalent or more serious manner, court should not demand strict
factual parallels.”). Accordingly, although her evidence is thin, Coleman satisfied her prima
facie case.
C.

Pretext

Defendants provided a legitimate nondiscriminatory reason for Coleman’s
termination—her attendance violations combined with other disciplinary infractions—shifting
the burden back to Coleman to demonstrate that this stated reason was pretext and that the real
reason behind her termination was based on discriminatory animus. See Pilditch v. Bd. of Educ.
of the City of Chicago, 3 F.3d 1113, 1117 (7th Cir. 1993) (“But this burden is also quite light; the
employer need not persuade the court that he was actually motivated by the reason he gives and
the mere articulation of the reason rebuts the prima facie case and puts the onus back on the
plaintiff to prove pretext.”).
To show pretext, Coleman must demonstrate that the decisionmaker’s reasons for her
termination were dishonest and motivated by discriminatory animus. See Brown v. Ill. Dep’t of
Nat. Resources, 499 F.3d 675, 683 (7th Cir. 2007). “A plaintiff shows that a reason is pretextual
‘directly by persuading the court that a discriminatory reason more likely motivated the

23

defendants or indirectly by showing that the defendants’ proffered explanation is unworthy of
credence.’” Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005) (brackets omitted) (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981)). In determining whether an employer’s explanation is honest, courts look to the
reasonableness of the explanation. See Duncan, 518 F.3d at 492; Stewart v. Henderson,
207 F.3d 374, 378 (7th Cir. 2000) (“The focus of a pretext inquiry is whether the employer’s
stated reason was honest, not whether it was accurate, wise or well-considered.”). A plaintiff
can present indirect evidence challenging the reasonableness of an explanation by showing that
the proffered reasons “are without basis in fact, did not actually motivate the challenged action,
or were insufficient to motivate the discharge.” See Freeman v. Madison Metro. Sch. Dist.,
231 F.3d 374, 379 (7th Cir. 2000).
Defendants argue that Coleman’s termination was warranted because she failed to
comply with IDHS’s attendance policy. Specifically, within the twenty-four months prior to her
termination, Coleman accumulated 16 unexcused absences, with eight of those unexcused
absences coming between February and April 2007. Coleman argues that defendants’
application of this policy was discriminatory because Hammond and Jankowski — the
decisionmakers — presumed that African-American employees abused FMLA leave. Because
of this belief, argues Coleman, Hammond treated Coleman’s absences as unexcused rather than
allowing her to substantiate that the FMLA excused the absence. To support her pretext
argument, Coleman argues that (1) Caucasian employees did not receive similar discipline for
being absent from work; (2) her unexcused absences were covered by the FMLA; and (3) her
prior disciplinary record was unfounded.

24

First, Coleman argues that Hammond and Jankowski disciplined African-American
employees more harshly. Namely, Coleman notes that Kline refused to work overtime because
of a pending surgery but was allowed to use FMLA leave even though Kline had not yet
formally made the request for FMLA leave. In addition, Huff noted that after her own medical
ailments required that she used FMLA leave, Hammond and Jankowski suspended her for four
days for refusing to work overtime (although she was later able to have the suspension
withdrawn by providing the appropriate paperwork). Furthermore, Coleman believed that
Caucasian employees, such as Filomena, had their FMLA paperwork processed faster and were
not disciplined for taking FMLA leave. Coleman also points to her unexcused absence when she
attended her grandmother’s funeral, compared to Brundies’s excused absence. E.g., Coleman,
667 F.3d at 841 (“In McDonnell Douglas itself, the Supreme Court noted that comparator
evidence would be “[e]specially relevant” at the pretext stage.” (quoting McDonnell Douglas,
411 U.S. at 804)).
That Huff had difficulty taking FMLA leave while Caucasian employees did not supports
Coleman’s theory that race played a role in Hammond’s decision regarding when to excuse
absences. See, e.g., Coleman, 667 F.3d at 857 (“[E]vidence of selective enforcement of a rule
calls into question the veracity of the employer’s explanation.” (internal quotation marks
omitted)). Huff’s situation was different from Coleman’s. Huff had prior-approved FMLA
leave because of her surgery and requested to use that leave because she could not work
overtime. Huff was initially disciplined based on Jankowski’s belief that her FMLA time in
connection with the surgery had expired, a mistake that IDHS later rectified. Coleman, however,

25

had not submitted her paperwork requesting FMLA leave to the human resources department
when accumulating eight unexcused absences between February and April 2007.
Moreover, Caucasian employees received discipline for calling in late, leaving early, and
refusing mandatory overtime, although no Caucasian employee was terminated for these
infractions. Pl. Resp. to Defs. L.R. 56.1 ¶ 46. Indeed, Hammond disciplined Fullerton for
excessive unexcused absences, and Fullerton resigned as a result. See, e.g., Naik v. Boehringer
Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010) (“[T]he evidence shows that every
employee that [the defendant] found to have falsified call logs was either terminated or allowed
to resign. There is no evidence that any employee who violated the [defendant’s] policy
remained on the job.”). Apart from Fullerton, Coleman points to no Caucasian employee who
over a two-month period of time, continuously called in late requesting unapproved FMLA
leave. E.g., Bean v. Wis. Bell, Inc., 366 F.3d 451, 453 (7th Cir. 2004) (“The misconduct of the
two whites was not so egregious that the fact that they weren’t suspended permits an inference
that [the plaintiff] was suspended because she is black.”). Coleman also argues that Filomena
took FMLA leave and refused to work overtime without being disciplined and notes that
Hammond allowed Kline to back-date an FMLA request and permitted Brundies to use a
bereavement day to care for his grandfather. These were isolated instances, however. The
majority of Coleman’s discipline stemmed from her calling in less than an hour before her shift
while requesting FMLA leave for time off to treat her migraines even though she had not yet

26

obtained approval from the human resources department to take FMLA leave to treat her
migraines.13
Furthermore, Coleman’s argument that Hammond and Jankowski allowed Caucasian
employees to bypass required steps of the IDHS’s FMLA policy while disciplining AfricanAmerican employees for taking FMLA leave is belied by the evidence. First, Hammond and
Jankowski had no role in deciding whether to approve FMLA leave; rather, the human resources
department had the authority to approve or deny FMLA leave requests. Second, the human
resources department approved Coleman’s FMLA leave requests in 2006 to care for her mother
and her daughter. Third, after Coleman submitted her FMLA paperwork in 2007, the human
resources department approved her request to take FMLA leave to treat her migraines. Fourth,
between February and April 2007, Hammond told Coleman that she needed to submit her
paperwork to the human resources department to obtain FMLA leave, which Coleman failed to
do until April 10, 2007. Last, during the April 20, 2007 pre-disciplinary hearing, Hammond and
Jankowski recategorized Coleman’s absence from February 27, 2007 as covered by the FMLA
because Coleman missed work that day to care for her mother. The IDHS granted Coleman
FMLA leave every time that she requested it. Coleman’s reliance on unsubstantiated innuendo

13

Coleman included Kline and Filomena’s personnel files as exhibits. The files include
handwritten notes from Kline and Filomena where Kline requested to take leaves of absences in 2005,
2007, and 2009, and Filomena requested leaves of absences in 2007 and 2008 for medical reasons. The
files, however, do not provide any information regarding whether Kline or Filomena had already been
approved for FMLA leave before they missed time from work or whether they were disciplined for failing
to abide by IDHS’s attendance and FMLA policies. To show pretext, Coleman must do more than
include her co-employees personnel files and indicate that they were able to take FMLA leave. Rather,
she must present facts indicating that defendants’ decision to terminate her evidenced discriminatory
animus. See Greer v. Bd. of Educ. of City of Chi., Ill., 267 F.3d 723, 727 (7th Cir. 2001) (“[A] lawsuit is
not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and
neither appellate courts not district courts are obliged in our adversary system to scour the record looking
for factual disputes. . . .”) (internal quotation marks omitted).

27

to suggest that Hammond and Jankowski’s actions were the result of a discriminatory animus
does not create a genuine issue of material fact for trial. See, e.g., Goodman v. Nat’l Sec.
Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) (“We often call summary judgment, the ‘put up
or shut up’ moment in litigation, by which we mean that the non-moving party is required to
marshal and present the court with the evidence she contends will prove her case.” (citation
omitted)).
Second, with regard to her specific absences, Coleman contends that nine of those
unexcused absences charged against her between 2005 and 2007 should not have been counted
because those absences were FMLA covered. Specifically, Coleman states that her absences on
the following dates were covered under the FMLA: March 4 and August 4, 2006; February 6, 24,
26, and March 12, 27, 28 and April 2, 2007. Coleman contends that her absence on February 10,
2007 to attend her grandmother’s funeral should have been treated as a bereavement day. With
regard to her absence on March 4, 2006, it is undisputed that Coleman had not yet requested any
FMLA leave at that time. Next, Coleman argues that she should have been allowed to take
FMLA leave on August 4, 2006 to care for mother; however, she did not receive approval to take
FMLA leave to care for her mother until November 13, 2006.14
Furthermore, with regard to her unexcused absences in 2007, Coleman argues that she
called in for each absence and informed Hammond that she was ill and would use the time off as
FMLA-covered. Hammond verbally instructed Coleman to document the absence as covered by

14

Coleman also disputed receiving an unexcused absence on November 18, 2006 as it was
covered by the FMLA; however, the IDHS’s records do not indicate that Coleman requested that time-off
in connection with her FMLA approved leave. The records do reflect that Coleman requested that her
absence the following day, November 19, 2006, be treated as FMLA covered and Coleman received no
discipline for missing that day.

28

the FMLA and told her that it would be backdated to reflect as such. Still, Coleman did not
complete her FMLA paperwork until after she accumulated multiple unexecused absences.
While Coleman argues that her doctor’s delay in diagnosing her condition contributed to her
delay in completing the paperwork, Coleman still waited more than two months before picking
up the FMLA forms from the human resources department. The number of unexcused absences
Coleman accumulated over a two-month period without obtaining her FMLA paperwork from
the human resources department violated IDHS’s attendance policy. Taking the number of
unexcused absences over a short period of time combined with Coleman’s delay in submitting
her FMLA paperwork provided Hammond with a sufficient basis to recommend termination.
See, e.g., Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006) (“An employer’s
mistaken belief that the plaintiff’s conduct merited termination is not unlawful, so long as the
belief was honestly held.”).
Third, Coleman argues that her prior disciplinary history was based on unfounded
accusations. Coleman notes that Franklin was the impetus for defendants’ decision to discipline
her for being absent from the worksite and for using a racially derogatory slur. Franklin,
according to Coleman, harassed her and part of that harassment included reporting her for
violations that were untrue. When Coleman attempted to explain to Hammond and Jankowski
that Franklin held a grudge against Coleman, they turned a deaf ear. Even if they were wrong in
this instance, Coleman received numerous other suspensions between 2002 and 2006 for
violating IDHS’s attendance policy. For example, in 2006, Coleman was marked tardy twentythree times and the majority of these instances occurred before Coleman requested FMLA leave
to care her daughter. All occurred before Coleman requested FMLA leave to care for her mother.

29

During the same time period, Coleman received some positive evaluations, but her evaluations
also consistently criticized her for poor time management. The majority of Coleman’s time
violations resulted from her failure over an extended period of time to properly call in requesting
time off.
Importantly, Coleman fails to show that race played a role in Hammond’s decision to
discipline Coleman for unexcused absences. Indeed, failure to comply with the IDHS’s
attendance and FMLA policies, was the underlying reason substantiating all of Coleman’s prior
disciplinary violations. See Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir.
1997) (“[A]rguing about the accuracy of the employer’s assessment is a distraction . . . because
the question is not whether the employer’s reasons for a decision are right but whether the
employer’s description of its reasons is honest.” (internal quotation marks omitted)).15 Nor did
Coleman identify a non-African-American employee who accumulated a similar number of
unexcused absences without facing termination. Compare with Stalter v. Wal-Mart Stores, Inc.,
195 F.3d 285, 290–91 (7th Cir. 1999) (fact issue as to pretext existed where the defendant
terminated the plaintiff for allegedly stealing a bag of chips from a co-employee but failed to
terminate a Caucasian employee who lied to her supervisor after missing work when the
employer’s policy called for termination in instances of employee dishonesty). Because
Coleman failed to carry her burden under the indirect method, defendants’ motion for summary
judgment with respect to her Title VII, § 1981, and § 1983 claims must be granted. See Brown v.
Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012) (“Perhaps their supervisors’

15

Whether defendants’ application of these policies violated the FMLA is discussed below in
section III; however, for the pretext inquiry, the focus is on whether defendants had an honest belief that
disciplining Coleman was warranted.

30

criticisms were unfair—clearly the plaintiffs feel that they were—but there is no evidence that
there were unfair because they were motivated by race, as Title VII forbids.”); Jones v. Union
Pacific R. Co., 302 F.3d 735, 742 (7th Cir. 2002) (“To establish pretext, [the plaintiff] must show
that his race was the determining factor in his discharge, or that but for his race he would not
have been discharged.”); compare with Loudermilk v. Best Pallet Co., 636 F.3d 312, 314–15 (7th
Cir. 2010) (fact issue remained regarding pretext where African-American employee told his
supervisor that he believed he was being treated differently from Hispanic workers and
supervisor fired him on the spot).16
III.

FMLA Interference Claim
The FMLA provides eligible employees with the right to take up to twelve weeks of

unpaid leave due to a serious health condition or to care for a family member. See 29 U.S.C.
§ 2612(a)(1). The FMLA also allows an employee to take intermittent leave or work on a
reduced schedule when necessary because of a medical condition. Id. § 2612(b). Intermittent
leave is defined as “leave taken in separate blocks of time due to a single qualifying reason.”
29 C.F.R. § 825.203(a) (2006 rev.).17 It is unlawful for an employer to interfere with an

16

Coleman makes a cursory argument that the mixed-motives analysis precludes summary
judgment on both her race discrimination and FMLA retaliation claims. In order to proceed under such a
theory, Coleman must present direct or circumstantial evidence of discrimination. Grigsby v. LaHood,
628 F.3d 354, 360 (7th Cir. 2010). Defendants could then avoid a finding of liability by establishing that
they would have made the same decision even if Coleman was not African–American. Abioye v.
Sundstrand Corp., 164 F.3d 364, 369 (7th Cir.1998). As found, Coleman failed to substantiate that race
played a decision in defendants’ termination decision. There is also ample evidence that defendants made
the decision to terminate Coleman based on her violation of the attendance policy, and they would have
reached the same decision regardless of Coleman’s race.
17

Congress authorized the Secretary of Labor to promulgate regulations necessary to
implement the FMLA. See 29 U.S.C. § 2654; Burnett v. LFW, Inc., 472 F.3d 471, 477 n.1 (7th Cir.
2006). The court applies the version of the Code of Federal Regulations in effect during the events in

(continued...)
31

employee’s rights under the FMLA by terminating her employment. 29 U.S.C. § 2615(a)(1).
The plaintiff has the burden to prove that her employer interfered with her FMLA rights. See,
e.g., Simpson v. Office of Chief Judge of Circuit Court of Will Cnty., 559 F.3d 706, 712 (7th Cir.
2009).
To prevail on a claim for FMLA interference, a plaintiff must demonstrate that (1) she
was eligible for protection under the FMLA, (2) her employer was covered by the FMLA, (3) she
was entitled to leave under the FMLA, (4) she provided notice of her intent to take FMLA leave,
and (5) her employer denied her the FMLA benefits to which she was entitled. Burnett, 472 F.3d
at 477. The parties do not dispute that Coleman was eligible for protection under the FMLA and
that IDHS was covered by the FMLA. Defendants argue that the statute of limitations bars
Coleman’s FMLA claims, and alternatively that she cannot demonstrate the final three prongs of
the test.
A.

Statute of Limitations

Defendants argue that Coleman’s FMLA claims are governed by a two-year statute of
limitations. See 29 U.S.C. § 2617(c)(1) (providing for a two-year statute of limitations).
Because Coleman filed her initial complaint on June 15, 2009, defendants contend that any acts
or events giving rise to her FMLA interference claim before June 15, 2007 (i.e., Coleman’s entire
case) are barred by the statute of limitations. Coleman, however, argues that a three-year statute
of limitations applies because defendants acted wilfully and, therefore, her claims are timely.
See 29 U.S.C. § 2617(c)(2).
17

(...continued)

question. See Righi v. SMC Corp., 632 F.3d 404, 408–09 (“The Department of Labor has issued detailed
regulations governing the notice requirement. The regulations were most recently amended in 2009; we
apply the version in effect as of July 2006—when these events occurred—to inform our analysis.”).

32

Wilful violations of the FMLA require showing that the employer “knew or showed
reckless disregard for the matter of whether its conduct was prohibited by the [FMLA].” See
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988);
Archie v. Dart, No. 09 C 7857, 2012 WL 1986431, at *5 (N.D. Ill. June 1, 2012). Here,
Coleman notified Hammond that she had a medical issue starting in February 2007. Coleman
contends that she forwent submitting her FMLA paperwork at the time because Hammond
verbally told her that her time off would later be covered by the FMLA. The IDHS’s FMLA
policy, however, did not cover time off requests predating submission of FMLA paperwork to
the human resources department. That Hammond was on notice of Coleman’s request for FMLA
leave and told her that the requests would ultimately be covered under the FMLA, but treated
those requests as unexcused absences suffices to show a reckless disregard on Hammond’s part
when instructing Coleman on what she needed to do in order to take FMLA leave. Coleman can
thus rely on a three-year statute of limitations as she demonstrated that a willful violation
wrongfully denied her benefits under the FMLA. See, e.g., Wilkes v. Potter, No. 05 C 4921,
2006 WL 3087097, at *6 (N.D. Ill. Oct. 27, 2006).
B.

Entitlement to FMLA Leave

An employee is entitled to FMLA leave if (1) she is affected with a “serious health
condition,” and (2) the condition renders her unable to perform the functions of her job. Burnett,
472 F.3d at 477–78 (citing 29 U.S.C. § 2612(a)(1)(D)). A “serious health condition” is “an
illness, injury, impairment, or physical or mental condition that involves . . . inpatient care in a
hospital . . . or . . . continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The
term treatment “includes (but is not limited to) examinations to determine if a serious health

33

condition exists and evaluations of the condition . . . [but] does not include routine physical
examinations . . .” 29 C.F.R. § 825.114(b). An employee must submit a medical certification to
establish the existence of such a condition. See 29 U.S.C. § 2613(a).
Defendants first dispute that Coleman suffered from a FMLA-qualifying medical
condition that precluded her from performing the functions of her position. Coleman states that
she suffered from debilitating migraines, which required numerous visits to her doctor, who
ordered diagnostic tests. Migraines fall under the rubric of health conditions that constitute
serious health conditions under the FMLA. See 29 C.F.R. § 825.11(c) (“Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches
other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are
examples of conditions that do not meet the definition of a serious health condition and do not
qualify for FMLA leave.” (emphasis added)). Coleman also demonstrated that her migraines
precluded her from working certain days, thus demonstrating that her medical condition rendered
her unable to perform her job.
C.

Notice of Intent to Take FMLA Leave

In order to invoke her FMLA rights, an employee “must simply provide enough
information ‘to place the employer on notice of a probable basis for FMLA leave.’” Righi v.
SMC Corp., 632 F.3d at 409 (quoting Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953
(7th Cir. 2004)); see also Burnett, 472 F.3d at 478–79. The employee need not specifically refer
to the FMLA so long as she “alert[ed] [her] employer to the seriousness of the health condition.”
Stevenson v. Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir. 2007). The burden is on the employer
to investigate and conduct further inquiry into whether the employee’s leave is covered under the

34

FMLA. See Burnett, 472 F.3d at 480. Defendants argue that Coleman never conveyed the
severity of her illness before requesting the FMLA paperwork, and additionally failed to comply
with its internal notification policy by timely providing a medical certification.
Defendants first argue that Coleman never conveyed the severity of her illness that
resulted in her absences between February and April 2007. While an employee need not
specifically refer to the FMLA to put an employer on notice, Burnett, 472 F.3d at 478–79, the
employee must do more than call in informing her employer that she is sick. See Phillips v.
Quebecor World RAI, Inc., 450 F.3d 308, 312 (7th Cir. 2006) (“An employee’s reference to
being ‘sick,’ however, does ‘not suggest to the employer that the medical condition might be
serious or that the FMLA otherwise could be applicable.” (internal quotation marks omitted)).
“This is true even if the employee provides her employer with a doctor’s note if the note does not
convey the seriousness of her medical condition.” de la Rama v. Ill. Dep’t of Human Servs., 541
F.3d 681, 687 (7th Cir. 2008). Here, Coleman specifically told Hammond that she was
requesting FMLA leave for all her absences between February and April 2007 due to chronic
migraines. Coleman provided Hammond with notes from her doctor indicating that he was
treating her for migraines and was performing diagnostic tests. Defendants thus were on notice
that Coleman intended to use FMLA leave for those absences placing the onus on them to
determine whether the FMLA was applicable. See Price v. City of Fort Wayne, 117 F.3d 1022,
1026 (7th Cir. 1997) (“After a notice of this sort the employer can inquire further to determine if
the FMLA applies.”).
Defendants further argue that Coleman never provided a certification from her doctor
contemporaneously with her requests that her absences between February and April 2007 be

35

counted as FMLA leave. See 29 C.F.R. § 825.305(c); Phillips, 450 F.3d at 312 (“After an
employee requests leave for a serious health condition, the employer may request certification by
the employee’s health care provider.”). The IDHS’s FMLA policy required that an employee
notify his or her supervisor of an intent to treat unforeseeable absences as FMLA covered within
two days and, thereafter, the employee must request FMLA forms from the human resources
department and submit a medical certification from a physician. See also 29 C.F.R. § 825.303(a)
(“When the approximate timing of the need for leave is not foreseeable, an employee should give
notice to the employer of the need for FMLA leave as soon as practicable under the facts and
circumstances of the particular case. It is expected that an employee will give notice to the
employer within no more than one or two working days of learning of the need for leave, except
in extraordinary circumstances where such notice is not feasible.”). IDHS’s internal policy
required that Coleman submit the certification to the human resources department in connection
with her FMLA packet. See also 29 C.F.R. § 825.302(d) (“An employer may require an
employee to comply with the employer’s usual and customary notice and procedural
requirements for requesting leave.”). The employer must make the request for a medical
certification in writing unless the employee has been provided with the employer’s FMLA policy
in the prior six months; in such a situation, the request for a medical certification can be made
orally. See Ridings v. Riverside Med. Ctr., 537 F.3d 755, 767 (7th Cir. 2008) (citing 29 C.F.R.
§§ 825.305(a), (b)(1)(ii)).
Coleman waited until April 10, 2007 to request FMLA paperwork from the human
resources department, and waited until April 24, 2007 to submit her FMLA paperwork for that
time off. In accord with IDHS’s FMLA policy, the human resources department approved her

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request for FMLA leave to treat her migraines beginning on April 10, 2007 (the date that
Coleman picked up her forms). Coleman was also familiar with the IDHS’s FMLA policy, and
its requirement that the human resources department process approvals, because she had
requested FMLA leave on two prior occasions to care for her mother and daughter.
Coleman, however, states that she told Hammond that she was taking FMLA leave for
each absence in dispute between February and April 2007. Coleman notes that she explained to
Hammond that her doctor was awaiting the results of tests to diagnose her condition. According
to Coleman, between February and March 2007, Hammond instructed her to submit the FMLA
paperwork and said that once human resources approved the request, she would treat Coleman’s
unexcused absences as covered by the FMLA. In making these assurances, Hammond never told
Coleman that there was a deadline by which she had to submit her FMLA paperwork. Nor did
Hammond tell Coleman that failure to timely submit a certification could result in denial of leave
as FMLA covered. See 29 C.F.R. § 825.305(d) (“At the time the employer requests certification,
the employer must also advise an employee of the anticipated consequences of an employee’s
failure to provide adequate certification.”).
Hammond’s statements to Coleman that her absences would be covered once her FMLA
leave was approved were incorrect under IDHS’s FMLA policy because FMLA leave could only
be approved after the employee picked up forms from the human resources department.
Coleman had some familiarity with the IDHS’s FMLA policy based on her prior requests;
however, Hammond’s contradictory instructions lulled Coleman into a false sense of security in
that she believed her absences due to her migraines would eventually be treated as excused and
covered by the FMLA even though she had not submitted her paperwork to the human resources

37

department. Coleman waited to collect these forms under the mistaken belief that her time off
requests would be excused once she had a final diagnosis from her doctor. Although Hammond
did not have the ability to approve time off as FMLA covered, her conversations with Coleman
placed defendants on notice of Coleman’s intent to take FMLA leave in connection with her
migraines. See Burnett, 472 F.3d at 479 n.4 (“Because adequacy of notice is a fact-rich question,
it is perhaps best resolved by the trier of fact, particularly, where, as is the case here, the
employer and employee dispute the quantity and nature of communications regarding the
employee’s illness.”).
D.

Denial of FMLA Benefits

To prevail on the last element of her claim Coleman must show that defendants denied
her FMLA benefits to which she was entitled. See Makowski v. SmithAmundsen LLC, 662 F.3d
818, 825 (7th Cir. 2011). Under the FMLA, termination can constitute a denial of benefits. See
Nicholson v. Pulte Homes Corp., 690 F.3d 819, 827 (7th Cir. 2012); Kaufman v. Federal Exp.
Corp., 426 F.3d 880, 884 (7th Cir. 2005). To rebut a claim that an employee’s termination
denied her FMLA benefits, the employer may present evidence to show that the employee would
have been fired regardless of whether she took leave. See Pagel v. TIN Inc., 695 F.3d 622, 629
(7th Cir. 2012). The employee must then overcome the employer’s evidence to prevail on
summary judgment. Id.
Defendants argue that they terminated Coleman based on her accumulation of unexcused
absences. Coleman argues that she believed her unexcused absences between February and
April 2007 would be covered by the FMLA after she submitted her FMLA paperwork to the
human resources department. Coleman delayed submitting her FMLA paperwork based on

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Hammond’s assurances that her requests would be backdated. This delay resulted in Coleman
accumulating absences deemed to be unexcused. That the human resources department later
approved Coleman’s request to take FMLA leave demonstrates that these absences would have
been excused had Coleman submitted her FMLA paperwork contemporaneously with the
absences.
In addition, had those absences been covered by the FMLA, Coleman would not have
accumulated excessive unexcused absences, which was the reason for her termination.
Accordingly, because Coleman demonstrated that defendants would have lacked grounds to
terminate her employment had she received FMLA leave for her absences between February and
April 2007, Coleman satisfied her burden demonstrating that defendants denied her FMLA
benefits. Accordingly, defendants’ motion for summary judgment with respect to Coleman’s
FMLA interference claim is denied.18
III.

FMLA Retaliation Claim
Coleman also alleges a FMLA retaliation claim. The difference between a retaliation

claim and an interference claim is that the former “requires proof of discriminatory or retaliatory

18

Although the Seventh Circuit has not addressed whether public employees may be
held liable under the FMLA, other judges in this district have found individual liability in this
context. See McGee v. City of Chicago, No. 11 C 2512, 2011 WL 4382484, at *8 (N.D. Ill. Sept.
16, 2011); Plaxico v. Cnty. of Cook, No. 10 C 272, 2010 WL 3171495, at *5 (N.D. Ill. Aug. 11,
2010). But see Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003) (concluding that the
FMLA’s individual liability provision does not extend to public agencies). A person may be
individually liable under the FMLA if he or she had supervisory authority over the plaintiff and was
partly responsible for the alleged violation. See Baier v. Rohr-Mont Motors, Inc., No. 12 C 8234, 2013
WL 2384269, at *5 (N.D. Ill. May 29, 2013) (citing Robinson v. Morgan Stanley, No. 06 C 5158, 2007
WL 2815839, at *13–14 (N.D. Ill. Sept. 24, 2007)). Because Coleman does not argue that Gulli or
Jankowski had any conversations regarding the approval date of her FMLA leave, she cannot maintain
her FMLA interference claim against them in their individual capacities. Accordingly, defendants’
motion for summary judgment regarding Coleman’s FMLA interference claim is granted with regard to
Gulli and Jankowski.

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intent while [the latter] requires only proof that the employer denied the employee his or her
entitlements under the Act.” Kauffman, 426 F.3d at 884. A plaintiff may establish an FMLA
retaliation claim under either the direct or indirect method of proof. See, e.g., Caskey v. ColgatePalmolive Co., 535 F.3d 585, 592–93 (7th Cir. 2008). Coleman attempts to proceed under both
methods.
A.

The Direct Method

Under the direct method, Coleman must establish (1) a statutorily protected activity; (2) a
materially adverse action taken by defendants; and (3) a causal connection between the two.
Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011). The second element is not
in dispute as defendants terminated Coleman’s employment.
Defendants argue that Coleman cannot establish the first element because Coleman failed
to properly give notice of her request for FMLA leave before her termination proceedings on
April 20, 2007 and, therefore, she had not engaged in a statutorily protected activity. As found,
however, between February and April 2007, Coleman repeatedly told Hammond that she was
requesting time off under the FMLA as a result of her migraines. Although Coleman failed to
give written notice to the human resources department before her disciplinary proceeding, her
conversations with Hammond requesting FMLA leave were sufficient to constitute a statutorily
protected activity.
Under the third prong of the direct method, Coleman must establish a causal connection
between her requests for FMLA leave and her resulting termination. Coleman can establish this
causal link either with a direct admission (i.e., a smoking gun admission by defendants that they
terminated her employment because she took FMLA leave) or by means of circumstantial

40

evidence to show unlawful retaliation. See Pagel, 695 F.3d at 631. “[C]ircumstantial evidence
may include suspicious timing, ambiguous statements from which a retaliatory intent can be
drawn, evidence of similar employees being treated differently, or evidence that the employer
offered a pretextual reason for the termination.” Id.19
Coleman has no direct evidence that her decision to request FMLA approval factored into
defendants’ decision to terminate her. Instead, Coleman relies on circumstantial evidence,
namely the suspicious timing of the termination decision and the delay approving her FMLA
paperwork after she submitted it. It is undisputed that Coleman was terminated less than two
months after submitting her FMLA paperwork. Suspicious timing, however, by itself cannot
bridge the gap to show a causal connection. See O’Leary v. Accretive Health, Inc., 657 F.3d
625, 635 (7th Cir. 2011) (“[T]emporal proximity between an employee’s protected activity and
an adverse employment action is rarely sufficient to show that the former caused the latter.”).
Apart from suspicious timing, the pieces of circumstantial evidence upon which Coleman relies
to show retaliation are the same arguments that she makes regarding pretext under the indirect
method. Thus, the court will address those argument in its pretext analysis infra in section III. B.
B.

The Indirect Method

To proceed under the indirect method, Coleman must establish that she (1) engaged in a
statutorily protected activity; (2) met her employer’s legitimate expectations; (3) suffered an
adverse employment action; and (4) was treated less favorably than similarly situated employees
who did not engage in the statutorily protected activity. Simpson, 559 F.3d at 718. If Coleman

19

To substantiate her retaliation claim, Coleman additionally argues that she took pre-approved
FMLA leave from February 24 to 27, 2007 to care for her mother. Coleman’s absences on February 25
and 27, however, were not ultimately counted against Coleman as unexcused.

41

makes this prima facie showing, the burden shifts to defendants to offer a nondiscriminatory
legitimate reason for her termination. Id. If defendants make that showing, the burden shifts
back to Coleman to demonstrate that defendants’ explanation for her termination was pretextual.
Id.
The ultimate issue boils down to whether defendants’ decision to terminate Coleman was
pretextual—namely because Coleman exercised her FMLA rights. The evidence, however, does
not support Coleman’s position that her termination was the result of her invoking leave under
the FMLA. The IDHS’s FMLA policy required Coleman to submit her paperwork to the human
resources department. Coleman delayed in doing so for two months based on Hammond’s
assurances. While Coleman argues that Hammond disciplined her for taking leave, the evidence
shows that Hammond disciplined Coleman because she failed to timely submit the necessary
paperwork to the human resources department, which would allow defendants to verify whether
her medical condition qualified for FMLA coverage.
Moreover, the IDHS approved Coleman’s two prior requests to take FMLA leave to care
for her daughter and her mother. Hammond and Jankowski later recatogorized Coleman’s
February 27, 2007 unexcused absence to care for her mother as covered by the FMLA. That
Hammond and Jankowski granted Coleman leave under the FMLA when it had already been
approved by the human resources department, but denied her requests that had not received such
approval further underscores that they were following IDHS’s internal policies. This distinction
evidences a guided decisionmaking process, which belies Coleman’s argument that the
decisionmaking process was retaliatory. In addition, the IDHS ultimately approved Coleman’s
FMLA request to take leave in connection with her migraines. While that approval ultimately

42

came too late, that defendants approved Coleman’s FMLA request belies her argument that her
termination stemmed from her request for FMLA leave.
Because Coleman cannot establish evidence of a retaliatory motive, her retaliation claim
fails. Accordingly, defendants’ motion for summary judgment on Coleman’s FMLA retaliation
claim is granted. See, e.g., Kauffman, 426 F.3d at 885 (“Viewing the record in the light most
favorable to [the plaintiff], the nonmoving party, [the decisionmakers] wanted to get rid of him
because they thought he was argumentative and a troublemaker, so they pounced on a chance to
fire him. But they did so in spite of his rights under the FMLA, not because he asserted those
rights. In other words, they did not seek to punish him for exercising rights or opposing an
unlawful procedure; they did not even treat him differently than someone not entitled to FMLA
leave.”); Ridings, 537 F.3d at 772 (“[The defendant] was permitted by the FMLA to require [the
plaintiff] to substantiate her continued need for a reduced schedule, and it terminated her in
accordance with the FMLA and its employment policies, after giving her repeated opportunities
to provide the information it had requested. An employer cannot be deemed to retaliate against
an employee by asking her to fulfill her obligations under the FMLA.”).
IV.

Deprivation of Due Process Claim
To establish a claim for violation of procedural due process under the Fourteenth

Amendment, a plaintiff must demonstrate “(1) a deprivation of a protected interest, and (2)
insufficient procedural protections surrounding the deprivation.” Michalowicz v. Vill. of Bedford
Park, 528 F.3d 530, 534 (7th Cir. 2008). Defendants do not dispute that Coleman had a
protected property interest, focusing instead on the second inquiry. “The fundamental
requirement of due process is the opportunity to be heard ‘at a meaningful time and in a

43

meaningful matter.’” Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62
(1965)). “Due process requires that, prior to termination, an employee be given the chance to tell
her side of the story, and that the agency be willing to listen.” Ryan v. Ill. Dep’t of Children &
Family Servs., 185 F.3d 751, 762 (7th Cir. 1999).
Defendants argue that the April 20, 2007 disciplinary hearing provided Coleman with an
opportunity to respond to the charges in the April 2, 2007 pre-disciplinary hearing notice.
Coleman contends that the April 20, 2007 hearing was in effect “a sham” because defendants’
decision to terminate her employment had already been made. Coleman notes that she filed her
FMLA paperwork shortly thereafter, on April 24, 2007, and that Hammond and Jankowski stated
that they would consider her application before taking further action. Still, according to
Coleman, Hammond and Jankowski moved ahead with her termination decision and Gulli
delayed the processing of her FMLA paperwork to ensure that their decision to terminate her
would be approved.
The termination proceeding was delayed twice at Coleman’s behest so that she could
prepare. At the proceeding, Coleman was represented by two union officials, who argued that
her unexcused absences were the result of an illness that was covered by the FMLA. Hammond
and Jankowski also recatogorized Coleman’s absence on February 27, 2007 as excused based on
the fact that she was taking care of her mother that day, an activity for which she had already
been granted FMLA leave. Although Coleman argues that defendants should have waited until
her FMLA request had been processed, that request would only have covered absences after
April 10, 2007, which was the date that Coleman requested paperwork from the human resources

44

department. In other words, Coleman’s subsequent filing of her FMLA paperwork could not
obviate her prior failure to provide contemporaneous notice of her intent to invoke the FMLA.
Coleman’s failure to provide the initial requisite notice, not the human resources department’s
alleged delay in processing that paperwork once received, was the reason that Coleman’s
unexcused absences were not treated as covered by the FMLA.20
While Hammond and Jankowski ultimately made the recommendation to terminate
Coleman before receiving her FMLA paperwork, that decision had to pass through several levels
of review. Coleman argues that the review process was a mere formality because Hammond and
Jankowski’s tainted pre-determined recommendation to terminate her employment was rubber
stamped. Still, Hammond and Jankowski’s decision to recategorize a prior unexcused absence
belies Coleman’s argument that they had a pre-determined agenda to terminate her before
holding the hearing. Indeed, such a decision on their part evidences a willingness to listen and
accept Coleman’s corrections regarding absences that they erroneously concluded were not
FMLA covered. Coleman has thus failed to show that the hearing was a sham such that her due
process rights were violated in that the decision to terminate her had been made before that
meeting. Accordingly, defendants’ motion for summary judgment regarding Coleman’s due
process claim is granted. See Salas v. Wis. Dep’t of Corrections, 493 F.3d 913, 928 (7th Cir.
2007) (“[The plaintiff] was given a chance to explain his side of the story with a union
representative present, the [defendant’s] decision went through multiple levels or review, and

20

The time that it took the human resources department to process Coleman’s FMLA leave
request for her migraines was approximately the same amount of time that it took to process her prior
requests. This fact further undercuts Coleman’s argument that defendants intentionally delayed
processing Coleman’s FMLA paperwork so that they could effectuate her termination.

45

[the plaintiff] has offered no evidence from which a jury reasonably could conclude that the
[defendants] had made up their minds before the hearings occurred.”).
CONCLUSION
For the aforementioned reasons, defendants’ motion for summary judgment [dkt. 115] is
granted with respect to Coleman’s claims for race discrimination in violation of Title VII, §
1983, and § 1981; interference with rights under the FMLA as to Jankowski and Gulli, retaliation
in violation of the FMLA against all defendants; and deprivation of due process in violation of
the Fourteenth Amendment. Defendants’ motion for summary judgment is denied with regard to
Coleman’s FMLA interference claim against the IDHS and Hammond. The case will be called
for a status hearing on October 15, 2013 at 8:30 a.m. The parties are directed to engage in a
sincere effort to settle this case and to report on their progress at the status hearing.
ENTER:
Dated: September 24, 2013

_________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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