Plaxico v. Cook County et al

Filing 100

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 10/12/2011: Mailed notice(mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHESTER PLAXICO,

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Plaintiff,
v.
COUNTY OF COOK, et al.,
Defendants.

No. 10 C 272

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the parties’ cross motions for summary
judgment. For the reasons stated below, Plaintiff’s motion for summary judgment is
denied and Defendants’ motion for summary judgment is granted.

BACKGROUND
Plaintiff Chester Plaxico (Plaxico) alleges that he began working for the Cook
County Sheriff’s Department (Sheriff’s Department) in May of 1986 and that in May
of 2002, he became a Superintendent. Plaxico further alleges that in November
2005, he applied for intermittent leave under the Family Medical Leave Act
(FMLA), 29 U.S.C. § 2601, et seq., indicating that he needed the leave to address
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issues relating to his son’s oppositional defiant disorder, conduct disorder, disruptive
behavior, depression, and symptoms of bipolar disorder. Plaxico’s FMLA request
was allegedly approved and effective as of December 21, 2005. Plaxico and his
wife, who is also an employee of the Sheriff’s Department, allegedly received a
combined total of twelve weeks of intermittent leave for 2006. According to Plaxico,
he properly reapplied for intermittent leave in 2007 and 2008, and his requests were
granted each time.
Plaxico alleges that Defendant Gilberto Romero, Jr. (Romero), who was the
Assistant Executive Director of the Department of Corrections, and Defendant
Salvador Godinez (Godinez), who is currently the Executive Director of the
Department of Corrections, “subjected [Plaxico] to unwarranted discipline . . . in
retaliation for [] exercising his rights under the FMLA.” (Compl. Par. 21). Plaxico
also claims that, with the knowledge, consent, and approval of Romero and
Defendant Cook County Sheriff Thomas Dart (Dart), Godinez demoted Plaxico to
the position of Chief on January 14, 2008, due to Plaxico taking intermittent FMLA
leave.
According to Plaxico, Godinez has allegedly stated, at some unspecified time,
that Plaxico was a “valued employee” and that Plaxico’s demotions resulted from
Plaxico’s “personal ‘issues,’ which required [Plaxico] to take intermittent leave.”

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(Compl. Par 26). Godinez also allegedly told Plaxico that Plaxico could discuss
being promoted again once Plaxico “got his ‘family situation’ resolved.” (Compl.
Par. 27). Plaxico alleges that, in spite of being on intermittent FMLA leave, he has
worked 45-60 hours per week, and that his requests to substitute compensatory time
for FMLA leave have been denied. In addition, Plaxico claims that he reapplied for
intermittent FMLA leave in 2009, and that Defendants approved his leave, but
specifically limited Plaxico to five days of intermittent leave per month, which does
not satisfy the needs of his son.
Plaxico includes in his complaint FMLA interference claims brought against
Defendant County of Cook (County), Dart, in his official and individual capacity,
Godinez, in his individual capacity, Romero, in his individual capacity, and
Defendant Rosemarie Nolan (Nolan), in her individual capacity (Count I). Plaxico
also includes in his complaint FMLA retaliation claims brought against the County,
Dart, in his official and individual capacity, Godinez, in his individual capacity,
Romero, in his individual capacity, and Nolan, in her individual capacity (Count II).
The County and Individual Defendants previously moved to dismiss Plaxico’s
claims. On August 11, 2010, the court granted the County’s motion to dismiss the
claims brought against the County, but the County remains in the instant action as an
indemnitor to Dart in the event that Dart is found to be liable in his official capacity.

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The court also denied Individual Defendants’ motion to dismiss. The parties have
now filed cross-motions for summary judgment.

LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A “genuine
issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a
motion for summary judgment, the court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for
summary judgment, the court should “construe the evidence and all reasonable

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inferences in favor of the party against whom the motion under consideration is
made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27
(7th Cir. 2005).

DISCUSSION
Defendants move for summary judgment on the FMLA interference and
FMLA retaliation claims. Plaxico moves for summary judgment as to liability on the
FMLA interference and FMLA retaliation claims and argues that damages should be
resolved at trial. The FMLA provides that an eligible employee working for a
covered employer is entitled to take up to twelve work weeks of unpaid leave, either
on an intermittent basis or all at once within a twelve-month period, in order to attend
to issues such as taking care of someone in the employee’s immediate family. 29
U.S.C. § 2612(a)-(b). In addition to requirements for providing leave, the FMLA
provides that it is “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided” in the FMLA. 29 U.S.C. §
2615(a)(1). Also, if employees exercise their rights under the FMLA, an employer is
prohibited from retaliating against the employee because of the exercise of his
FMLA rights. 29 U.S.C. § 2615(a).

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I. Interference Claims (Count I)
Plaxico contends that Defendants interfered with his FMLA rights by actions
such as allegedly subjecting him to arbitrary transfers, disciplining and demoting
him, placing conditions on his leave, creating a hostile environment, and failing to
reinstate him to the Superintendent position. For a FMLA interference claim, a
plaintiff must establish that: “(1) he was eligible for the FMLA’s protections, (2) his
employer was covered by the FMLA, (3) he was entitled to leave under the FMLA,
(4) he provided sufficient notice of his intent to take leave, and (5) his employer
denied him FMLA benefits to which he was entitled.” Burnett v. LFW, Inc., 472
F.3d 471, 477 (7th Cir. 2006). Defendants argue that Plaxico has not pointed to
sufficient evidence to show that he was denied FMLA benefits to which he was
entitled.

A. Entitlement to Leave
Defendants contend that the undisputed evidence shows that a significant
portion of the time that Plaxico took for FMLA leave was spent addressing nonmedical family issues that were not covered by the scope of the certification for his
FMLA leave. An employer can require an employee who seeks to take FMLA leave
“to obtain a medical certification from a health care provider that sets forth”

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information such as the medical facts for the leave. 29 C.F.R. § 825.306(a); see also
Vail v. Raybestos Products Co., 533 F.3d 904, 909 (7th Cir. 2008)(stating that “an
employer can defeat an interference claim by showing, among other things, that the
employee did not take leave ‘for the intended purpose’”)(quoting Crouch v.
Whirlpool Corp., 447 F.3d 984, 986 (7th Cir. 2006)). Defendants have pointed to
evidence showing that Plaxico used FMLA leave for purposes not covered in his
FMLA certification. The FMLA certification process is in place to ensure that
employees are taking leave for protected reasons. If Plaxico wanted to try and
expand his certification for additional family issues, it was incumbent on Plaxico to
try and get the type of leave certified as medically necessary. The FMLA
certification did not provide Plaxico with carte blanche to take leave for any reason.
Plaxico brought this case claiming that Defendants failed to abide by the FMLA, but
the undisputed record shows that it was Plaxico who was not following FMLA
requirements. Thus, the undisputed evidence shows that a significant amount of
leave taken under FMLA by Plaxico was outside the scope of his FMLA certification
and he was not entitled to FMLA benefits in regard to such leave.

B. Absence of Any Denial of FMLA Requests
Defendants argue that Plaxico was never prejudiced by the denial of FMLA

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leave. For an FMLA interference claim, there can be “no relief unless the plaintiff
can prove that he was prejudiced by the violation.” Franzen v. Ellis Corp., 543 F.3d
420, 426 (7th Cir. 2008)(citing Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81,
89 (2002)). Plaxico has failed to point to any instance when he requested FMLA
leave and his request was denied and Plaxico admits that his requests were granted.
(R DSF Parl 19-20). Thus, Plaxico has failed to point to sufficient evidence to show
that his FMLA rights were interfered with by Defendants. Plaxico contends that he
would have taken more FMLA leave but contends that he had vague fears that
employees who took FMLA leave were “stigmatiz[ed]” and he sensed that based on
past events that he was being targeted because he had taken FMLA leave. (R DSF
Par. 33, 42). Plaxico claims that he felt there was a “stigma” for those that took
FMLA leave and he testified at his deposition that he began to “feel that [his]
assignments, [his] transfers and other things that were happening to [him] were only
happening because of [his] usage of [his] FMLA time.” (Plax. dep. 30-31); (R DSF
Par. 33). However, at the summary judgment stage Plaxico cannot simply rely on his
general speculation. Nor can he base his claims on his claimed fears and beliefs in
the absence of evidence to support such beliefs. See Delapaz v. Richardson, 634
F.3d 895, 901 (7th Cir. 2011)(noting that the plaintiff “present[ed] nothing more than
his own unsubstantiated speculation as to the reason for his demotion; such

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conjecture alone cannot defeat a summary judgment motion”). Such metaphysical
doubts and speculation are not the type of issues that are genuinely disputed issues
that would defeat Defendants’ motion for summary judgment. Matsushita Elec.
Indus. Co., Ltd., 475 U.S. at 586. Plaxico contends that he did not seek FMLA leave
because he was afraid of the consequences if he took such leave. However, Plaxico
cannot base an action on pure speculation as to what he thought might have
happened if he had requested such leave.

C. Transfers
Plaxico contends that while he was Superintendent, he was subjected to
arbitrary transfers because he took FMLA leave. In February 2006, Plaxico was
transferred from his position as Superintendent of External Operations to Division X.
(R SF Par. 43). Plaxico fails to point to evidence to show that such a transfer
negatively impacted him in any material fashion. Instead, he vaguely asserts that he
thought that the transfer was part of the “totality of the environment at the Cook
County Sheriff’s Office” and part of the “stigmatizing” of employees that took
FMLA leave. (R DSF Par. 43). In September 2007, Plaxico was transferred from
Division X to Division II. (R DSF Par. 44). Defendants contend that the transfer did
not harm Plaxico and actually benefitted Plaxico. Plaxico does not contest the fact

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that the transfer “moved Plaxico from a maximum security, problem-plagued facility
to a low security building with less stress and less activity.” (R DSF Par. 44).
Plaxico attempts to contest the fact that the transfer did not harm him, but again
provides only vague statements about his beliefs and fears, referring to his
“feel[ing]” that he was being stigmatized based on his FMLA leave and what he
refers to as a prior “chain of events.” (R DSF Par. 44). The undisputed record also
shows that Godinez believed that the problems at Division X were due to Plaxico’s
lack of leadership, and that the transfer would give Plaxico a break from regulating
such a high-maintenance population and would also give another Superintendent an
opportunity for such experience. (DSF Par. 45). Finally, Plaxico does not dispute
that neither the February 2006 transfer nor the September 2007 transfer involved a
demotion, reduction in pay, or alteration of job title. (R DSF Par. 46). Plaxico again
reiterates his general fears about stigmatization of employees that took FMLA leave.
Plaxico has failed to point to sufficient evidence to indicate that the February 2006
transfer or the September 2007 transfer related to Plaxico’s exercise of his FMLA
rights.

D. Discipline and Demotions
Plaxico claims that his discipline and two demotions in 2008 constituted

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interference with his FMLA rights. Defendants contend that Plaxico was disciplined
and demoted based upon legitimate reasons relating to his poor work performance
and his drunk driving conviction.

1. Poor Work Performance
Defendants point to evidence showing: (1) that Plaxico failed to perform
assigned tasks (DSF Par. 47), (2) that Plaxico failed to give accurate information
during meetings (DSF Par. 48), (3) that Plaxico made an unauthorized change in his
work hours (DSF Par. 49), (4) that Plaxico was not prepared at meetings and could
not answer basic questions about his division (DSF Par. 50), (5) that Plaxico failed to
maintain a clean facility (DSF Par. 51), (6) that Plaxico failed to complete work after
being repeatedly told to do so (DSF Par. 51), (7) that Plaxico failed to keep up with
the changes at the Department of Corrections (DSF Par. 51), (8) that Plaxico failed to
prevent excessive violence in his unit (DSF Par. 52), (9) that Plaxico disobeyed
orders by his superiors (DSF Par. 53), (10) that Plaxico failed to complete projects he
was ordered to complete (DSF Par. 53), and (11) that Plaxico failed to utilize his staff
properly. (DSF Par. 53). Plaxico attempts to contest some of the alleged poor work
performance, but fails to provide any tangible evidence to genuinely dispute such
poor work performance.

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2. January 2008 Demotion
On January 14, 2008, Plaxico was demoted from Superintendent to Chief.
(DSF Par. 55). Defendants contend that Plaxico was demoted because he did not
perform well in the assignments given to him as a Superintendent. (DSF Parl 55).
Plaxico attempts to contest the basis for the demotion arguing that Godinez indicated
that Plaxico was demoted because Plaxico was focused on his “issues at home,” and
that the department was “going in a different direction.” (R DSF Par. 55). However,
even if the court accepted Plaxico’s version of events, such statements by Godinez
do not indicate unlawful discrimination and are not inconsistent with the evidence
showing that the reason for Plaxico’s demotion related to poor work performance.
While the FMLA gave Plaxico certain rights to leave and protected him from
interference and retaliation, the FMLA did not protect Plaxico from being disciplined
for poor work performance. If Defendants provided Plaxico with all he was entitled
to under the FMLA and Plaxico was still not able to do his job properly because of
issues in his personal life, Defendants did not violate the FMLA by demoting him.
Nor does a statement that Defendants were “going in a different direction,”
necessarily suggest any non-compliance with the FMLA. Also, although Plaxico
contends that his January 2008 demotion was part of some “chain of events” that he

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believed was a stigmatization of employees that used FMLA leave, Plaxico admits
that the demotion was beneficial to him. Plaxico does not dispute that he told
Godinez that the change in position would be beneficial to his family because his
Superintendent duties were making it difficult to find time to deal with his family
issues. (R DSF Par. 57). Thus, Plaxico has not pointed to evidence to show that the
January 2008 demotion was in any way connected to his FMLA leave.

3. September 2008 Demotion
In July 2008, the Sheriff’s Inspector General (Inspector General) completed
his investigation into two charges of misconduct relating to Plaxico’s 2005 DUI
arrest in Mississippi: (1) failure to observe federal, state, and local laws, and (2)
conduct unbecoming that reflected discredit on the office. (DSF Par. 62). The
Inspector General recommended a thirty-day suspension without pay and Plaxico
was ultimately given a five-day suspension without pay. (DSF Par. 62-63). Plaxico
subsequently missed work due to family issues and in September 2008, Plaxico was
demoted from Chief to the rank of Captain by Godinez based on Plaxico’s DUI, and
observations of Plaxico’s poor work performance, attendance, and lack of focus.
(DSF Par. 65). Plaxico argues that Godinez made a reference to Plaxico getting his
“personal issues together.” (R DSF Par. 65). However, even if such a statement was

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made, it does not suggest unlawful discrimination and is not inconsistent with the
reasons given by Godinez for the September 2008 demotion. If, despite the leave
allowed under the FMLA, Plaxico was not able to do his job, Defendants were not
prohibited from demoting Plaxico because of his poor performance or because he
was convicted of driving while under the influence of alcohol. Plaxico has failed to
point to evidence that indicates that the September 2008 demotion related in any way
to his ability to take FMLA leave properly. Plaxico admits that he received a DUI
and has not explained why that would not be a sufficient basis to discipline or
demote him because of conduct unbecoming to his office. Thus, as indicated above,
there is insufficient evidence that indicates any discipline or demotion was related to
his ability to take FMLA leave properly.

E. Conditions on Leave
Plaxico claims that Defendants interfered with his FMLA rights by
conditioning approval of his FMLA leave to five times per month in 2009 and two
times per week in 2010 without the consultation or approval of the healthcare
provider. (P. MSJ 10). Plaxico argues that this conditional approval interfered with
his FMLA rights, but it is undisputed that Plaxico was never denied FMLA leave,
nor did he exhaust all of the FMLA leave available to him. (D SAF Par. 33). It is

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undisputed that Nolan’s approval of Plaxico’s FMLA request for 2009 is consistent
with the frequency and duration information provided in the medical certificate
obtained by Plaxico. (R DSF Par. 28). Plaxico argues that the certification “suggests
a potential” for more leave, but has not shown that the condition placed on his
FMLA leave was in any way inconsistent with the certification. (R DSF Par. 28). If
Plaxico felt that his need for leave exceeded the approved amount, the burden was on
Plaxico to obtain a new certification. 29 C.F.R. § 825.306(8); Stoops v. One Call
Communications, Inc., 141 F.3d 309, 313 (7th Cir. 1998)(stating that the plaintiff
“was the person most able to determine that the initial certification was ‘wrong’ and
was the person with the incentive, certainly the burden, to have it corrected”). Thus,
Plaxico has not pointed to evidence that indicates that the condition placed on his
FMLA leave in any way interfered with his FMLA rights.

F. Substitution of Time
Plaxico argues that Defendants showed a policy of stigmatizing those that take
FMLA leave by requiring him to utilize accrued paid time while on FMLA leave.
However, such a policy is entirely consistent with 29 C.F.R. § 825.207(a), which
provides that an “employer may require the employee to substitute accrued paid
leave for unpaid FMLA leave.” Id. Thus, Plaxico was seeking benefits beyond

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those provided in the FMLA.

G. Notice to Supervisors
Plaxico also argues that Defendants showed a policy of stigmatizing those that
take FMLA leave by requiring him to notify his direct supervisor of leave, including
his FMLA leave. However, such a requirement is consistent with 29 C.F.R. §
825.303(c), which provides that “an employer may require employees to call a
designated number or a specific individual to request leave.” Id. Plaxico has not
pointed to any evidence that suggests such notice requirement inhibited Plaxico in
taking FMLA leave.

H. Rescinding FMLA Leave
Plaxico also argues that Defendants interfered with his FMLA rights by
refusing to allow him to rescind FMLA leave taken by making up work after the fact.
However, no such right is given in the FMLA. Defendants’ policy in this regard is
consistent with 29 CFR § 825.205(a).

I. Work Environment
Plaxico claims that Defendants unlawfully interfered with his rights by

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creating an environment hostile to those who used FMLA leave, thus discouraging
him from fully exercising his FMLA rights. Plaxico alleges that the policies hostile
to FMLA included putting suspected FMLA abusers on a “watch list,” investigating
employees suspected of abusing FMLA leave, and by not allowing employees to
maintain secondary employment. Although Plaxico claims that such actions were
taken against those taking FMLA leave, Plaxico admits that he took FMLA leave and
he was not placed on any FMLA watch list, was not investigated as a potential
FMLA abuser, and did not have secondary employment. (R DSF Par. 31). Plaxico
has failed to point to sufficient evidence indicating that there was a hostile
environment at his workplace that interfered with the exercise of his FMLA rights.

J. Reinstatement
Plaxico claims that Defendants interfered with his FMLA rights by not
reinstating him to his former position of Superintendent following the expiration of
his FMLA leave. (P. MSJ 10). An employee is not entitled to return to his former
position if he would have been subjected to an adverse employment action regardless
of whether he took FMLA leave. See Goelzer v. Sheboygan County, Wis., 604 F.3d
987, 993 (7th Cir. 2010)(stating that “[a]n employee’s right to reinstatement is not
absolute”)(citing Breneisen v. Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008)). In

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order to show that he was entitled to reinstatement, Plaxico would have to show that
he would not have been demoted if he had not taken FMLA leave. As indicated
above, in regard to the demotions, there are undisputed facts establishing that Plaxico
had been failing to meet performance expectations at work. Plaxico has failed to
point to sufficient evidence that indicates that he would have been reinstated if he
had not taken FMLA leave or that the decision not to reinstate Plaxico was in any
way related to his ability to take FMLA leave properly.

K. Plaxico’s Motion for Summary Judgment on Interference Claims
Plaxico argues that the court should grant his motion for summary judgment
on his interference claims. Plaxico contends that it is undisputed that he was entitled
to FMLA protection and that the undisputed record shows that he was discouraged
from exercising his FMLA rights. However, as explained above, the undisputed
record shows that Plaxico used his FMLA leave for reasons not specified in his
FMLA certification and that Defendants’ actions in no way related to Plaxico’s
ability to take FMLA leave properly. Plaxico claims he feared that he would be
punished if he took FMLA leave and argues, for example, Defendants had a policy
creating a “watch list” on employees that took FMLA leave and investigating
employees for FMLA abuses. However, Plaxico took FMLA leave and he has

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pointed to no evidence that shows that he was ever on such a watch list or
investigated for potential FMLA abuse. Plaxico’s unfounded fears are not sufficient
to warrant a finding in his favor as a matter of law. The record in fact shows that had
Defendants investigated Plaxico’s FMLA leave, it would have been discovered that
Plaxico indeed was taking leave for purposes outside of his FMLA certification.
Therefore, based on the above, even when considering all of the evidence in its
totality, Defendants’ motion for summary judgment on the FMLA interference
claims (Count I) is granted. Plaxico’s motion for summary judgment on the FMLA
interference claims is denied.

II. Retaliation Claims (Count II)
Defendants move for summary judgment on the retaliation claims (Count II).
Plaxico contends that he was demoted twice in retaliation for exercising his FMLA
rights. FMLA claims brought under a theory of retaliation “requires proof of
discriminatory or retaliatory intent. . . .” Kauffman v. Fed. Exp. Corp., 426 F.3d 880,
884 (7th Cir. 2005). To defeat a motion for summary judgment on a FMLA
retaliation claim, a plaintiff must proceed under either the direct or indirect method
of proof. Lewis v. Sch. Dist. # 70, 523 F.3d 730, 741 (7th Cir. 2008). In the instant
action, Plaxico seeks to proceed under the direct method of proof in his motion for

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summary judgment. (P. MSJ 13-15). Under the direct method, a plaintiff must
establish: “(1) a statutorily protected activity; (2) a materially adverse action taken by
the employer; and (3) a causal connection between the two.” Ames v. Home Depot
U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011)(internal quotations omitted)(quoting
Caskey v. Colgate–Palmolive Co., 535 F.3d 585, 593 (7th Cir. 2008)).

A. Demotion Decisions
In the instant action, Plaxico has failed to point to evidence showing that Dart
or Nolan had any input whatsoever in Godinez’s decision to demote Plaxico, and
although Romero reported Plaxico’s performance deficiencies to Godinez, it is
undisputed that he did not specifically recommend that Plaxico be demoted. (R
PSAF Par. 27). In the fall of 2008, Plaxico applied for a refund of his deferred
compensation from the deferred compensation administrator, Nationwide Insurance
(Nationwide), and Plaxico asked Godinez to write a letter on Plaxico’s behalf
explaining the reasons for his most recent demotion. Plaxico argues that in the letter
sent by Godinez to Nationwide on November 18, 2008, Godinez did not specify all
of the reasons for Plaxico’s demotions now asserted by Defendants in this case. The
record reflects that Godinez wrote the letter relating to Plaxico’s application for
deferred compensation benefits. The contents of a letter written to a third-party after

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Plaxico had been demoted does not necessarily indicate that Plaxico’s FMLA leave
was the motivating factor for Plaxico’s demotion at the time that Godinez made the
decision to demote him. Godinez testified that he thought it was unnecessary to
divulge all information to a third-party regarding the demotions that might put
Plaxico in a poor light. (Godinez dep. 111-13). Plaxico has not pointed to any
evidence to contradict such a position.

B. Work Performance Prior to Demotions
Plaxico also argues that Godinez had never issued a written reprimand to
Plaxico regarding any performance problems prior to Plaxico’s demotions.
However, the record indicates that prior to his first demotion in January 2008,
Plaxico was issued a written reprimand by another supervisor in September 2007 for
inattention to duty, specifically stating the performance deficiencies that rendered the
reprimand necessary.

C. Timing of Demotions
Plaxico also argues that the timing of Plaxico’s demotions constitutes
circumstantial evidence that his FMLA leave motivated the decision to demote him.
(P. MSJ 14). However, a careful examination of the undisputed facts shows that the

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timing of the demotions does not establish a causal link between the demotions and
his FMLA leave. The record shows that the written reprimands given to Plaxico
contained specific information regarding the instances, including dates and details
describing Plaxico’s performance. In fact, Plaxico had been utilizing FMLA leave
for almost two years while he was a Superintendent. Plaxico does not offer any
evidence as to why Defendants did not demote him during that period of time, if in
fact his demotions were motivated by his FMLA leave. Even viewing the record in
the light most favorable to Plaxico, there is overwhelming, undisputed evidence that
Plaxico’s poor performance was the basis for his demotions.

D. Plaxico’s Motion for Summary Judgment on Retaliation Claims
Plaxico argues that the court should grant his motion for summary judgment
on his retaliation claims. Plaxico contends, for example, that the timing of his
demotions shows that there was retaliation. However, Plaxico is not entitled to
prevail as a matter of law or even go to trial based on the mere fact that some adverse
action was taken against an employee sometime after the employee took FMLA
leave. Taking FMLA leave does not insulate an employee from all future discipline
regardless of whether the employee is performing his job well or obeying workplace
rules. The undisputed record clearly shows nothing more than that Plaxico was

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convicted for a DUI and that his work performance was poor in a variety of ways.
The demotions that ultimately followed coincide directly with Plaxico’s failures at
work and troubles with the law.
Thus, Plaxico has not pointed to sufficient evidence that indicates any causal
connection between actions by Defendants and Plaxico’s FMLA leave. Nor has
Plaxico shown that he could proceed under the indirect method of proof. Plaxico has
not pointed to sufficient evidence that shows that retaliation was taken against him
because of his FMLA leave. Therefore, after considering all of the evidence in its
totality, Defendants’ motion for summary judgment on the FMLA retaliation claims
is granted. Plaxico’s motion for summary judgment on the FMLA retaliation claims
is denied.

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CONCLUSION
Based on the foregoing analysis, the court grants Defendants’ motion for
summary judgment and denies Plaxico’s motion for summary judgment.

_______________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: October 12, 2011

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