Ballard v. Chicago Park District
Filing
69
MEMORANDUM OPINION AND ORDER. For the reasons stated in the Opinion, Defendant's motion for summary judgment 36 is denied. Signed by the Honorable Edmond E. Chang on 9/29/2012:Mailed notice(Chang, Edmond)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BEVERLY BALLARD,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CHICAGO PARK DISTRICT,
Defendant.
No. 10 C 1740
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Beverly Ballard filed this suit under the Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601 et seq., alleging that her former employer, Chicago Park
District, denied Ballard her rights under the FMLA.1 Defendant Park District moves
for summary judgment. R. 36. For the reasons discussed below, the Park District’s
motion for summary judgment is denied.
I.
In evaluating the summary judgment motion, the Court views the facts in the
light most favorable to the non-movant, Ballard. Defendant Chicago Park District is
a local public entity that offers recreational facilities and activities, including
swimming facilities with lifeguards provided through the Department of Beaches and
Pools. R. 38, Def.’s Stmt. of Facts (DSOF) ¶ 1. Plaintiff Beverly Ballard began working
for the Park District in 1983 as a lifeguard and assumed other positions over the years,
1
This court has jurisdiction under 28 U.S.C. § 1331 over this federal-law action,
provided for by 29 U.S.C. § 2617(a)(2), which covers public agency employers such as the
Chicago Park District, 29 U.S.C. § 2611(4)(A)(iii).
including that of Hourly Natatorium Instructor, a position held by Ballard at all times
relevant to this case. Id. ¶ 4. In this position, Ballard accumulated leave time for
personal days and sick time, but not vacation days. Id.
In early 2006, Ballard’s mother, Sarah Ballard, was diagnosed with end-stage
congestive heart failure, and was not expected to live. R. 45, Pl.’s Stmt. of Facts (PSOF)
¶ 1. Sarah Ballard lived with Ballard in Ballard’s home. Id. As a result of her
diagnosis, Sarah Ballard began receiving hospice services from Horizon Hospice &
Palliative Care at Ballard’s home. Id. Initially, a home-care nurse would come to
Ballard’s house five days a week and was on call if Ballard needed help. Id. As time
went on, however, the hospice staff made fewer home visits as Ballard became more
proficient in reading her mother’s blood sugar level, monitoring her heart, and
recognizing the signs of a massive heart attack or stroke. Id.
Although Ballard’s teenaged daughter was also trained to care for Sarah
Ballard, R. 38-1, Def.’s Exh. 1 (Ballard Dep.) at 24:22-26:15, Ballard was her mother’s
primary care giver. PSOF ¶ 2. Her responsibilities included preparing healthy meals;
administering her mother’s insulin shots and medicine; operating a pump to remove
fluids from her mother’s heart; bathing her mother; pushing her in a wheelchair;
administering oxygen when her mother needed it; providing her mother with
transportation; and making sure her mother was comfortable by saying soothing things
to her, rubbing her back and head, and propping her up in bed. Id. ¶ 3.
On December 19, 2007, Ballard learned that she and her mother had been
granted a trip to Las Vegas by the Fairygodmother Foundation, a charitable
2
organization which grants “wishes” to persons with terminal illnesses. R. 38-3, Def.’s
Exh. 3 at Exh. 7-B. The trip was scheduled to take place from January 21, 2008
through January 26, 2008, id. at Exh. 12, and Ballard, as her mother’s primary care
giver, was to accompany her mother on the trip. Id. at Exh. 9.
Ballard alleges that on December 19, 2007, after learning of the Fairygodmother
grant, she approached Park District supervisor Eric Fischer during a break at an
Hourly Instructors’ Meeting to request leave for the trip to Las Vegas. PSOF ¶¶ 17-18.
Fischer was the Assistant Manager of Beaches and Pools, and Ballard’s direct
supervisor at the time. Id. ¶ 4. He had authority to approve time sheets and grant
personal days to hourly Natotorium Instructors, but he did not have authority to
approve FMLA leave requests. DSOF ¶ 2. Ballard claims that she handed Fischer the
Fairygodmother Foundation letter notifying her of the grant, and wrote the dates of the
Las Vegas trip on the back of the letter because Fischer wanted to know what dates
she was requesting in connection with the trip. PSOF ¶ 18. Ballard alleges that she
discussed FMLA leave with Fischer, but that he told her it was too soon (that is, too
far in advance of the requested leave), he had a lot to handle, and that he would get
back to her. Id. ¶ 20. Both Fischer and the Park District deny that this conversation
ever happened, and claim that Fischer did not learn of Ballard’s trip until Fischer
received Ballard’s faxed leave request in January 2008. R. 49, Def.’s Resp. to PSOF
¶¶ 17-20. (At the summary-judgment stage, the Court must credit Ballard’s version.)
Ballard claims that because she did not hear back from Fischer, she tried to
contact him again over the phone on January 14, 2008, but was told by his secretary
3
Erica that he was not available to respond. PSOF ¶ 25. The following day, Ballard
spoke with Erica again, who told her to fax in a leave request form, which Ballard did.
Id. ¶ 26. The Park District admits that it received a faxed leave request from Ballard
on January 15, 2008, and that the form indicated that the request was for FMLA leave.
R. 49, Def.’s Resp. to PSOF ¶ 26. But the Park District claims that the quality of the
fax was so poor that Fischer initially thought it was a request for personal days and
thus denied the request, citing “[n]ot enough benefit time. Location not covered.” DSOF
¶ 25.
After receiving Fischer’s denial, Ballard tried multiple times to reach him by
phone on January 16, 17, and 18 to no avail, though his secretary Erica assured her
that she was relaying her messages to Fischer. PSOF ¶ 28. The Park District denies
that Ballard made any attempts to contact Fischer in the days leading up to her trip.
R. 49, Def.’s Resp. to PSOF ¶ 28. Although Ballard had not received formal approval
of her request for leave to travel with her mother, she believed that her FMLA leave
would be approved based on her conversations with Erica, who had told her that if she
got her paperwork in order, she would be fine. PSOF ¶ 31. Thus, Ballard left for Las
Vegas with her mother on January 21, 2008 in spite of the fact that her January 15
request for leave had been denied. DSOF ¶ 34.
In addition to administering her mother’s medication and looking after her
mother during the trip, PSOF ¶ 33; Ballard Dep. at 208:23-209:4, Ballard spent time
with her mother playing slots, shopping on the Strip, people-watching, and dining at
restaurants. DSOF ¶¶ 42-45. Ballard admits that there were no plans for Sarah
4
Ballard to seek professional medical care, therapy, or treatment for her heart condition
while in Las Vegas, nor did Horizon Hospice provide any services for Sarah Ballard
during the trip. Id. ¶¶ 48, 49.
Ballard returned to work on January 28, 2008, which was a day later than her
scheduled date of return. PSOF ¶ 34. Her delay was caused by a fire that had broken
out in her Las Vegas hotel, which prevented her from making her original flight home.
Id. On March 21, 2008, Ballard was fired for her allegedly unauthorized absences
between January 21 - 27. Id. ¶ 39. She filed this lawsuit, and the Park District now
moves for summary judgment.
II.
Summary judgment must be granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “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). In evaluating summary
judgment motions, courts must view the facts and draw reasonable inferences in the
light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
The Court may not weigh conflicting evidence or make credibility determinations,
Omnicare v. UnitedHealth Group, 629 F.3d 697, 704 (7th Cir. 2011) (citations omitted),
and must consider only competent evidence of a type otherwise admissible at trial.
Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citations omitted). The party
seeking summary judgment has the initial burden of showing there is no genuine
5
dispute and they are entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). If this burden
is met, the adverse party must then “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 255.
III.
Ballard alleges that the Park District willfully and intentionally interfered with
her rights under the FMLA by denying her request for leave to accompany her sick
mother to Las Vegas and then firing her for absences in connection with the trip. R. 1,
Compl. ¶ 24.
The FMLA permits an eligible employee to take up to twelve weeks of leave per
year “[i]n order to care for . . . [a] parent of the employee, if such . . . parent has a
serious health condition.” 29 U.S.C. § 2612(a)(1)(C). The Act further provides that
employers may not “interfere with, restrain, or deny the exercise of or attempt to
exercise, any right provided under [the Act].” Id. § 2615(a)(1).
To prevail on her claim for FMLA interference, Ballard must prove that (1) she
was eligible for FMLA protections; (2) her employer was covered by the FMLA; (3) she
was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent
to take FMLA leave; and (5) her employer denied her FMLA benefits to which she was
entitled. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). There are only two
issues in serious dispute, one a legal question, the other a question over the factual
record: (1) as a matter of law, whether Ballard was entitled to leave under the FMLA
6
to “care for” her mother on the trip; and (2) as a factual matter, whether there is a
genuine issue of fact over whether Ballard provided sufficient notice of her intent to
take FMLA leave. As for the legal issue, the Court addresses whether Ballard was
entitled to FMLA leave under two theories: first, whether she “cared for” her mother
during the trip to Las Vegas; and second, in the alternative, whether the trip itself was
part of her mother’s “ongoing treatment.”
A.
Ballard argues that her trip to Las Vegas was protected under the FMLA
because she “cared for” her mother during the trip. In response, the Park District
argues that the FMLA does not protect that activity because Sarah Ballard had no
plans to seek medical treatment in Las Vegas. In the Park District’s view, the care
must have some connection to the family member’s need for treatment itself. The
pertinent text of the FMLA does not, however, set forth that limitation. Under the
FMLA, an eligible employee is entitled to a certain amount of leave “[i]n order to care
for . . . [a] parent of the employee, if such . . . parent has a serious health condition.”
29 U.S.C. § 2612(a)(1)(C). So the text demands only that the family member (here, the
parent) must have a “serious health condition” and that the employee must use the
leave “to care for” the parent. The statute does not mention the employee’s direct
participation in medical treatment. Nor does the statute mention limiting the care to
when the parent is at a particular location.
Although the FMLA does not further spell out the meaning of the phrase “care
for,” the Department of Labor has issued regulations addressing the meaning of this
7
phrase. See 29 C.F.R. § 825.116 (eff. until Jan. 16, 2009).2 Those regulations state that
the phrase “needed to care for” encompasses both physical and psychological care, and
includes situations where, for example, because of a serious health condition,
the family member is unable to care for his or her own basic medical, hygienic,
or nutritional needs or safety, or is unable to transport himself or herself to the
doctor, etc. The term also includes providing psychological comfort and
reassurance which would be beneficial to . . . a parent with a serious health
condition who is receiving inpatient or home care.
Id. § 825.116(a). So what it means to “care” for a family member does not depend on a
particular location or on participation in medical treatment itself. What’s more, the
regulations recognize, in defining “serious health condition,” that terminally-ill family
members might not be receiving active medical treatment at all: a serious health
condition is a condition that involves “continuing treatment by a health care provider,”3
including a
period of incapacity which is permanent or long-term due to a condition for
which treatment may not be effective. The employee or family member must be
under the continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the
terminal stages of a disease.
2
The regulations were most recently amended in 2009, after the events of this case
occurred. Because regulations cannot be applied retroactively unless Congress has so
authorized the administrative agency and the language of the regulations require it, see Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), this Court applies the version in effect
as of January 2007 (when the trip occurred). See Brown v. Auto Components Holdings, LLC,
622 F.3d 685, 689-90 (7th Cir. 2010) (applying contemporaneous regulations).
3
A condition that involves inpatient care also qualifies as a serious health condition.
29 C.F.R. § 825.114(a)(1) (1995).
8
29 C.F.R. § 825.114(a)(2)(iv) (1995) (emphases added) (available at 60 Fed. Reg. 218001, 2244 (1995)).4. The Labor Department appears to have derived this expansive view
of “care for” and “serious health condition” from the legislative history of the FMLA.
See 60 Fed. Reg. 2180-01, 2194-95 (1995) (“The Department has carefully reviewed the
comments and re-examined the legislative history and the definition of ‘serious health
condition’ in an attempt to assure that it is consistent with Congressional intent, and
that FMLA leave is available in those situations where it is really needed.”) Indeed, the
Senate Report on the FMLA makes the same point about care and terminally-ill family
members, that is, that the “care” need not be part of treatment:
An employee could also take leave to care for a parent . . . of any age who is
unable to care for his or her own basic hygienic or nutritional needs or safety.
Examples include a parent or spouse whose daily living activities are impaired
by such conditions as Alzheimer’s disease, stroke, or clinical depression, or . . .
who is in the final stages of a terminal illness.
S. Rep. No. 103-3, at 24 (1993), 1993 U.S.C.C.A.N. 3, 26.
Based on the statutory and regulatory text, there is no question that Sarah
Ballard suffered from a covered “serious health condition,” and was unable to care for
her own basic medical, hygienic, or nutritional needs or safety. There is also no
question5 that the services Ballard provided her mother at home—preparing healthy
meals; administering her mother’s insulin shots and medicine; removing fluids from
4
The current version of the regulation (which has the same text as the prior version)
is codified at 29 C.F.R. § 825.115(d).
5
To state the point more precisely, Ballard has shown that a reasonable fact-finder could
find the facts necessary to deem Sarah Ballard as someone with a serious health condition and
that Ballard took leave to “care for” her.
9
her mother’s heart; bathing her; pushing her in a wheelchair; administering oxygen to
her mother when needed; and providing her mother with transportation—constituted,
at the very least, physical care within the meaning of the FMLA.6 See PSOF ¶ 3.
It follows, then, that Ballard also “cared for” her mother during their trip to Las
Vegas, because her mother’s basic medical, hygienic, and nutritional needs did not
change while she was there. Ballard did, in fact, continue to administer her mother’s
medication and look after her mother in Las Vegas. PSOF ¶ 33; Ballard Dep. at 208:23209:4. But, as noted above, the Park District contends that Ballard did not “care for”
her mother because there were no plans for Sarah Ballard to seek professional medical
care, therapy, or treatment for her heart condition in Las Vegas, nor did Horizon
Hospice provide any hospice services during the trip. DSOF ¶¶ 48, 49. As discussed
above, there is no statutory or regulatory text stating something to the effect that
“care” must involve some level of participation in the ongoing treatment of the family
member’s condition under the FMLA. To the contrary, the regulations cover terminal
illnesses for which there is no active treatment at all, so the regulations refute an
attempt to link “care” to participation in ongoing medical treatment.
It is true that the Park District can accurately cite to several court cases for the
proposition that “care” includes an “ongoing treatment” connection. The primary case
is the Ninth Circuit’s decision in Marchischeck v. San Mateo County, 199 F.3d 1068
6
Ballard arguably also provided psychological care by making sure her mother was
comfortable by saying soothing things to her, rubbing her back and head, and propping her up
in bed. PSOF ¶ 3.
10
(9th Cir. 1999). There, the court held that an employee’s act of taking her son to the
Philippines to live with relatives, although motivated by concern for her son’s physical
and psychological condition, did not constitute “care” within the meaning of the FMLA
because she had no plans to seek medical or psychological treatment for her son
overseas. Id. at 1076. It is fair to argue, as the Park District does, that Marchischeck
holds that “caring for” a relative must involve treatment from a medical provider when
the employee is taking FMLA leave, including when the family member is traveling
away from home.
Although Marchischeck’s holding has been adopted by other courts, see, e.g.,
Miller v. State of Nebraska Dept. Of Economic Development, 467 Fed. Appx. 536, 540-41
(8th Cir. 2012); Tayag v. Lahyey Clinic Hospital, 632 F.3d 788, 791 n.2 (1st Cir. 2011),
the decision’s analysis does not grapple with the statutory and regulatory text. Indeed,
Marchicscheck simply states that “[t]he relevant administrative rule, 29 C.F.R.
§ 825.116 [now § 825.124(a)], suggests that ‘caring for’ a child with a ‘serious health
condition’ involves some level of participation in ongoing treatment of that condition,”
Marchischeck, 199 F.3d at 1076. As discussed above, nowhere in the regulation is there
any textual support for this limitation. The rule gives two examples of “caring for” a
family member: (1) “where . . . the family member is unable to care for his or her own
basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself
or herself to the doctor”; and (2) “providing psychological comfort and reassurance
which would be beneficial to a child, spouse, or parent with a serious health condition
11
who is receiving inpatient or home care.” 29 C.F.R. § 825.116(a). Nothing in these
examples suggest that “care” must itself be part of ongoing medical treatment.
The Ninth Circuit did provide a more detailed analysis of the “ongoing
treatment” limitation in Gradilla v. Ruskin Mfg., 320 F.3d 951 (9th Cir. 2003),
withdrawn per stipulation of parties by Gradilla v. Ruskin Mfg., 328 F.3d 1107 (9th
Cir. 2003). Although the opinion was withdrawn, the court’s thorough analysis in that
opinion demands examination. There, an employee accompanied his wife, who had a
serious heart condition, to Mexico to attend her father’s funeral. Like Ballard, the
employee was his wife’s primary care giver, and was responsible for administering her
medication and calming her down when her heart would act up—something that often
occurred when she experienced a stressful event. Id. at 954. And, like Ballard, the
employee was fired for taking unauthorized leave to accompany his wife to Mexico. The
employee brought suit, alleging that his firing was unlawful because he had a right to
family care and medical leave under the California Family Rights Act (CFRA), Cal.
Govt. Code § 12945.2, the California state analogue to the federal FMLA.7 Citing
Marchischeck, the court held that under the CFRA, “an employee who leaves work to
travel with and care for a family member with a serious health condition is not entitled
to leave when the family member decides, in spite of her serious medical condition, to
travel away from her home for reasons unrelated to her medical treatment.” Gradilla,
7
The CFRA was modeled on the federal FMLA and incorporates FMLA regulations to
the extent that they do not conflict with California law. Cal. Admin. Code, tit. 2, § 7297.10.
Thus, cases interpreting the FMLA apply equally to CFRA claims in the absence of a conflict.
Mora v. Chem-Tronics, 16 F. Supp.2d 1192, 1202-03 (S.D. Cal. 1998).
12
320 F.3d at 953 (emphasis added). Thus, Gradilla places a geographic restriction on
where “care” must be administered, at least when the trip away from home does not
have a medical-treatment purpose.
In establishing this limitation, Gradilla relied on 29 C.F.R. § 825.116, id. at 958,
which is now codified at § 825.124(a). As noted above, § 825.116 defined “care” to
include situations where, “because of a serious health condition, the family member is
. . . unable to transport himself . . . to the doctor,” as well as “psychological comfort and
reassurance which would be beneficial to [a family member] with a serious health
condition who is receiving inpatient or home care.” 320 F.3d at 958 (citing 29 C.F.R.
§ 825.116(a)) (emphases in original opinion). The term also contemplates situations
where the employee might be needed to make arrangements for changes in care, “such
as transfer to a nursing home.” Id. (citing 29 C.F.R. § 825.116(b)) (emphasis omitted).
Based on these examples, the court concluded that “ ‘caring for’ a family member with
a serious health condition involves some level of participation in ongoing medical or
psychological treatment of that condition, either inpatient or at home.” Id. (emphasis
in original).
But that reading of 29 C.F.R. § 825.116 is unconvincing because the rule simply
provides examples of “care” that would qualify for FMLA protections, and does not
purport to limit where “care” can take place. Other examples in the regulations do not
lend themselves to a geographic limitation or an ongoing-treatment limitation
(“hygienic” or “nutritional” needs; “psychological comfort and reassurance”). And as
helpful as examples can be in interpreting statutory or regulatory text, the most direct
13
explanation of “care” in the regulation is that the term “encompasses both physical and
psychological care.” 29 C.F.R. § 825.116(a) (now § 825.124(a)). It would be a mistake
to use non-exclusive examples to impose limits on that broad and direct definition.
At bottom, the governing statutory text requires only that Ballard sought leave
to “care for” her mother, who did have a “serious health condition.” 29 U.S.C.
§ 2612(a)(1)(C). At home, Ballard tended to her mother’s basic medical, hygienic, and
nutritional needs on a daily basis by cooking her healthy meals, administering insulin
shots and medicine, removing fluids from her mother’s heart, administering oxygen
when needed, and providing transportation—all of which fall squarely within the
“care” contemplated by 29 C.F.R. § 825.116. See PSOF ¶ 3. Ballard continued to
administer medication and look after her mother in Las Vegas. PSOF ¶ 33; Ballard
Dep. at 208:23-209:4. That Ballard provided these services to her mother while Sarah
Ballard went on an end-of-life trip does not detract from the fact that her mother’s
basic medical, hygienic, and nutritional needs could not be met without Ballard’s
assistance.8 So long as the employee provides “care” to the family member, where the
care takes place has no bearing on whether the employee receives FMLA protections.9
8
Note that Ballard testified that while in Las Vegas, her mother did visit a medical
facility because she was unable to access her insulin and medication in her hotel room on the
night of the hotel fire. See Ballard Dep. at 206:16-208:6. Although the visit was unplanned, it
underscores the importance of Ballard’s supervision of her mother during the trip. Left to her
own devices, Sarah Ballard would not have received her medications on time and could have
suffered serious health consequences.
9
Indeed, the Park District contends that 29 C.F.R § 825.116(a) supports an employee’s
FMLA leave request “only if the care giving function takes place in the context of the relative’s
‘serious illness’ and if the care is associated with the relative’s receiving some type of ‘inpatient
or home care.’ ” R. 48, Def.’s Repl. Br. 5. Under that view, had Ballard simply requested time
14
Accordingly, in light of the Court’s interpretation of the term “care,” a reasonable jury
could find that Ballard “cared for” her mother within the meaning of the FMLA during
the time she spent traveling to Las Vegas.
B.
For the sake of completeness (and if there is an appeal, so that the court of
appeals has the fullest opportunity to address all of the arguments raised by the
parties), the Court now turns to the following question: assuming the Park District is
correct—that is, that the FMLA requires that the trip was for ongoing medical
treatment—did Ballard provide enough evidence for a reasonable factfinder to conclude
that the trip did serve a medical-treatment purpose?
The answer is no. Ballard offers two pieces of evidence to show that the trip was
part of her mother’s treatment: the December 16, 2008 letter from Horizon Hospice
stating that the hospice had worked with the Fairygodmother Foundation to arrange
Sarah Ballard’s end-of-life trip, and the accompanying affidavit of Roxanne Dominis,
an employee of Horizon Hospice. R. 55, Supp. Appx. to PSOF. The first piece of
evidence cannot be considered for summary judgment purposes because the letter is
inadmissible hearsay and does not meet any of the hearsay exceptions. See Gunville
off from work to tend to her mother at home, FMLA leave would have been warranted because
Sarah Ballard was under the supervision—albeit infrequently—of Horizon Hospice. But Sarah
Ballard’s ability to care for her own basic medical, hygienic, and nutritional needs remained
no less diminished in Las Vegas than it was at home. It is inconsistent to say that Ballard
“cared for” her mother at home, but not while they were in Las Vegas. Under the rule endorsed
by the Park District and the Ninth Circuit, whether an employee may take leave to tend to the
medical needs of a seriously ill family member under the FMLA turns on where the care is
administered—a distinction that is textually unfounded.
15
v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“[A] court may consider only admissible
evidence in assessing a motion for summary judgment.”). It is a letter generated afterthe-fact (around seven months after the January 2008 trip), and does not fit the
business-record exception to hearsay. See Fed. R. Evid. 803(6). The second piece of
evidence, Roxanne Dominis’s affidavit, while admissible (in the sense of it could be
reduced to in-court testimony), does not adequately set forth facts that show that the
trip to Las Vegas was arranged in connection with her ongoing treatment at Horizon
Hospice. See R. 55, Exh. E (Dominis Decl.). Dominis, a Social Work Coordinator at
Horizon Hospice, simply states that it is part of the hospice’s plan of care to help
patients identify and meet end-of-life goals. Id. ¶ 4. That is all, one conclusory
paragraph in the affidavit. Perhaps if Ballard presented an affidavit from a doctor at
Horizon Hospice explaining how the trip to Las Vegas was part of Sarah Ballard’s
ongoing treatment ( as part of psychological care, for example), Ballard might have
been able to establish a triable issue of fact. But because the record before us is left
wanting of such evidence, the Court concludes that Ballard has failed to show that if,
in the alternative, FMLA leave is subject to an “ongoing treatment” limitation, the endof-life trip to Las Vegas was part of her mother’s ongoing treatment.
C.
The Park District next contends that even if Ballard were entitled to FMLA
protections, she failed to provide sufficient notice of her intent to take leave. The Court
disagrees. The FMLA’s statutory language and accompanying regulations require an
employee to provide notice to her employer when leave is foreseeable. See 29 U.S.C.
16
§ 2612(e)(2)(B); 29 C.F.R. § 825.302(a). Specifically, the employee must provide the
employer with “not less than 30 days’ notice, before the date the leave is to begin . . .
except that if the date of the treatment requires leave to begin in less than 30 days, the
employee shall provide such notice as is practicable.” 29 U.S.C. § 2612(e)(2)(B).
Even if Ballard were held to the statute’s heavier burden of giving 30 days’
notice, Ballard has alleged sufficient facts to meet that requirement. There is no
dispute that Ballard became aware of her need to take leave on December 19, 2007,
which was more than 30 days before her scheduled departure for Las Vegas. R. 45, Pl.’s
Resp. to DSOF ¶ 19. Assuming, as we must, that Ballard’s factual allegations are true,
see Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 356 (7th Cir. 1996), Ballard has
sufficiently raised an issue of fact as to whether she provided the Park District with
at least 30 days’ notice of her intent to take FMLA leave. Ballard testified that on
December 19, 2007, she approached her supervisor, Eric Fischer, to request FMLA
leave for the trip. PSOF ¶¶ 17-18. Ballard claims that she handed Fischer a copy of the
letter notifying her of the grant, and wrote the requested dates of leave on the back,
but that Fischer told her it was too soon and he would get back to her. Id. ¶¶ 18, 20.
That Fischer denies ever having this conversation and claims not to have learned of
Ballard’s trip until he received her faxed request in January 2008 does not impact the
analysis, R. 49, Def.’s Resp. to PSOF ¶¶ 17-20, because the Court is not in a position
to assess the credibility of witnesses or weigh evidence at the summary judgment stage
of a proceeding. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005).
17
The Park District also argues that Ballard’s notice was insufficient because she
failed to comply with the District’s internal procedures for requesting FMLA leave. It
is true that “[a]n employer may also require an employee to comply with the employer’s
usual and customary notice and procedural requirements for requesting leave.” 28
C.F.R. § 825.302(d). But even assuming that Ballard did not comply with the Park
District’s procedures, according to the regulations in effect at the time, “failure to
follow . . . internal employer procedures will not permit an employer to disallow or
delay an employee’s taking leave if the employee gives timely verbal or other notice.” 29
C.F.R. § 825.302(d) (eff. until Jan. 15, 2009) (emphasis added). As discussed above,
Ballard has alleged sufficient facts to raise a genuine issue as to whether she gave
timely verbal notice to Fischer. Thus, it does not matter whether she complied with the
Park District’s internal procedures.
It is well-established that the notice requirements of the FMLA are not onerous,
Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 311 (7th Cir. 2006); see also Righi
v. SMC Corp., 632 F.3d 404, 409 (7th Cir. 2011) (“Ordinarily, an employee’s statement
to his employer indicating that he needs leave to care for a seriously ill parent would
be sufficient to invoke the protections of the FMLA.”), and the evidence in the record
shows that Ballard has more than enough evidence to convince a factfinder that she
has met that burden. Accordingly, this Court finds that Ballard has raised a genuine
issue of material fact as to whether she provided the Park District with sufficient
notice of her intent to take FMLA leave.
18
IV.
For the reasons stated above, the Park District’s motion for summary judgment
[R. 36] is denied. Before the October 16, 2012 status hearing, the parties shall confer
on what each side believes should be the next step in the litigation.
ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: September 29, 2012
19
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