Caggiano v. Illinois Department Of Corrections(IDOC)
Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman 1/29/2016: Defendant's motion for summary judgment 39 is denied. Status hearing is set for 2/16/2016 at 9:00 a.m. Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ILLINOIS DEPARTMENT OF CORRECTIONS, )
Case No. 14 C 3378
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Caggiano, an Illinois citizen, filed a one-count complaint against his
former employer, the Illinois Department of Corrections, alleging violations of the Family and
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.1 Defendant has filed the instant
motion for summary judgment pursuant to Fed. R. Civ. P. 56, which, for the reasons discussed
below, is denied.
Plaintiff began working for defendant in November 1996. In April 2012, plaintiff was
employed as a Corrections Residence Counselor I at defendant’s Westside Adult Transition
Center (“Westside ATC”). In 2011 and 2012, plaintiff was scheduled to work from 11:00 P.M.
to 7:00 A.M., with a thirty-minute lunch break, Saturday through Wednesday.
Plaintiff’s complaint did not specify what theory the alleged “violation of the FMLA”
was brought under, interference or retaliation. The court’s October 15, 2014, Order held that
plaintiff brought only an FMLA interference claim.
The following facts are, unless otherwise specified, undisputed and come from the
parties’ Local Rule (“L.R.”) 56.1 statements and responses.
Plaintiff took FMLA leave in 2011 to care for his mother, who was suffering from
recurrent breast cancer and severe Chronic Obstructive Pulmonary Disease. Plaintiff took
FMLA leave from April 3, 2011, through April 15, 2011, and October 11, 2011, to December 7,
2011. By December 7, 2011, defendant believed that plaintiff had exhausted his sixty days of
FMLA leave and granted him Family Responsibility Leave (“FRL”) until December 20, 2011.3
Plaintiff did not report to work on April 7 through 10, 2012, because he “was taking care
of his mother who was ill.” On April 18, 2012, he wrote to DeAnna Clark, defendant’s Public
Service Administrator, requesting FMLA protection for these dates. She acknowledged
receiving his request on April 19, 2012, and stated that he had recently met the yearly
1,250-hours requirement necessary to be eligible for FMLA leave. She also told him that once
she received and reviewed his FMLA application, she would tell him if it was approved. Clark
asked Babette Rey, Westside ATC’s Timekeeper, to calculate plaintiff’s total hours worked with
April 7, 2011, as a starting point. Using his 2011 and 2012 timesheets, Rey calculated that
plaintiff had not met the yearly 1,250-hours requirement until April 15, 2012, when he finished
his shift with 1,257 hours worked. Accordingly, plaintiff’s FMLA leave request for April 7
through 10, 2012, was denied.4
Plaintiff denies he exhausted his 2011 FMLA leave, but does not reference any affidavit,
part of the record, or other material in support of the denial as required by L.R. 56.1(b)(3).
Accordingly the statement is deemed admitted. See McGuire v. United Parcel Serv., 152 F.3d
673, 675 (7th Cir. 1998) (“An answer that does not deny the allegations in the numbered
paragraph with citations to supporting evidence in the record constitutes an admission.”).
Plaintiff claims, in his L.R. 56.1 statement of facts, that he was told that his application
was denied because it was not completely filled out, and that his application “did not justify
taking time off.” This dispute, however, is not relevant to the current motion.
Plaintiff rejects this calculation and claims that from April 7, 2011, to April 7, 2012, he
worked 1,299 hours, based on an eight-hour workday, because he was not “relieved at lunch,”
not able to “leave the premises,” not able to “eat in the lunchroom,” and always “ate on duty in
the dayroom with inmates.”
Plaintiff had a disciplinary hearing on May 7, 2012, for alleged unauthorized absences
from April 7 through April 10, 2012. On May 22, 2012, the hearing officer concluded that
plaintiff violated defendant’s attendance policy and recommended progressive discipline,
“beginning with a 15 day suspension for April 7, 2012, proceeding to a 20 day suspension for
April 9, 2012, and culminating with discharge for April 10, 2012.”5 The record indicates that
this was communicated to plaintiff for the first time on June 15, 2012, as discussed below.
On June 13, 2012, plaintiff wrote to Clark requesting FMLA leave for June 3, 9, 10, and
11, 2012, to care for his mother, and again requesting FMLA leave for April 7 through 10, 2012.
Clark sent him an email on the same day stating, “[i]n order for your FMLA to begin, you must
have an absence that’s FMLA related. I’ve confirmed with your timekeeper that you’ve not
informed anyone of an FMLA absence since April 10th. Since you have not worked your
required 1250 hours until April 15th, we were unable to start your FMLA on the 10th.”6
On June 15, 2012, plaintiff was suspended pending discharge. Thereafter, on July 2,
2012, plaintiff was terminated because “his absences from work on April 7, 9, and 10, 2012 were
The court notes that although April 8, 2012, was a Sunday, and therefore one of
plaintiff’s regularly scheduled work days, April 8th is absent from the hearing officer’s findings.
It is unclear what impact these June absences had on plaintiff’s employment, but they
are not addressed in the motions or L.R. 56.1 statements, even though plaintiff claimed in his
deposition that the application for the June absences was also denied.
determined to be unauthorized and based on progressive discipline and the number of
unauthorized absences Plaintiff had accumulated prior to April 7, 2012.”
A movant is entitled to summary judgment pursuant to Fed. R. Civ. P. 56 when the
moving papers and affidavits show that there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Once a moving party has met its burden, the nonmoving party must go
beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See
Fed. R. Civ. P. 56(c); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990).
The court considers the record as a whole and draws all reasonable inferences in the light most
favorable to the party opposing the motion. See Green v. Carlson, 826 F.2d 647, 651 (7th Cir.
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). The nonmoving party must, however, “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
574, 586 (1986). “The mere existence of a scintilla of evidence in support of the [nonmoving
In its reply, defendant asks the court to strike a number of plaintiff’s L.R. 56.1 responses
for violating this court’s local rules. To the extent that any of plaintiff’s still relevant statements
of fact offend this court’s local rules, the court will not consider them. See Gittings v. Tredegar
Corp., 2010 WL 4930998, at *1 n.4 (N.D. Ill. 2010).
party’s] position will be insufficient; there must be evidence on which the jury could reasonably
find for the [nonmoving party].” Anderson, 477 U.S. at 252.
Defendant argues that it is entitled to summary judgment because there is no genuine
issue of material fact as to whether plaintiff was eligible for FMLA leave from April 7 to 10,
2012. Defendant claims that the record establishes that plaintiff did not qualify as an FMLA
eligible employee until April 15, 2012, when he met the yearly 1,250-hours requirement.
Defendant also contends that even if plaintiff did meet the yearly hours requirement by April 7,
2012, he still did not qualify for FMLA leave because it did not have actual or constructive
knowledge of him working through his lunch breaks. Finally, defendant argues that even if
plaintiff was an FMLA eligible employee by April 7, 2012, it is still entitled to summary
judgment because he had already exhausted his FMLA leave by that date.
Plaintiff argues that even though he was scheduled to work seven and a half hours a day,
he actually worked eight hours a day because he never took a lunch break during his shift.
According to plaintiff, the third shift at Westside ATC was so understaffed that he was not
“relieved at lunch,” not able to “leave the premises,” not able to “eat in the lunchroom,” and
always “ate on duty in the dayroom with inmates.” Plaintiff contends that a reasonable jury
could find that by April 7, 2012, he was an FMLA eligible employee because he had worked
1,299 hours and defendant had actual or constructive knowledge of his working through his
lunch breaks. He also argues that defendant did not submit any evidence that he had exhausted
his FMLA leave by April 7, 2012. The court agrees.
The FMLA entitles an eligible employee to twelve workweeks of leave during any
twelve-month period for certain qualifying reasons, including the need to care for a parent
suffering from a serious health condition. 29 U.S.C. § 2612(a)(1)(C). Under the FMLA, it is
unlawful for an employer to interfere with an employee’s attempt to exercise his FMLA rights.
29 U.S.C. § 2615(a)(1).
To prevail on his FMLA interference claim, plaintiff must show 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) the
employer denied him FMLA benefits to which he was entitled. See e.g., Burnett v. LFW, Inc.,
472 F.3d 471, 477 (7th Cir. 2006); Daugherty v. Wabash Ctr., Inc., 577 F.3d 747, 750 (7th Cir.
2009); see also Segura v. TLC Learning Center, 2015 WL 93910, at *3 (N.D. Ill. 2015). The
only elements in dispute are whether plaintiff was an FMLA eligible employee and was denied
FMLA benefits to which he was entitled.
The parties dispute whether plaintiff was an FMLA eligible employee on April 7 through
10, 2012. To be eligible for FMLA protections, an employee must be employed by the employer
for at least twelve months and work at least 1,250 hours “with [the] employer during the
previous 12-month period.” 29 U.S.C. § 2611(2)(A). The FMLA’s hours-of-service requirement
is calculated by using the Fair Labor Standards Act’s (“FLSA”) legal standards. 29 U.S.C.
§ 2611(2)(C) (cross-referencing 29 U.S.C. § 207); see also Pirant v U.S. Postal Serv., 542 F.3d
202, 206 (7th Cir. 2008).
Defendant contends that with a thirty-minute lunch break, plaintiff worked seven and a
half hours a day; plaintiff contends that because he was not able to take a lunch break, he worked
eight hours a day. The FLSA does not allow “bonafide” meal breaks to be factored into
countable work hours, but a break can count as work time if the employee is not “completely
relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19(a). The
Seventh Circuit has adopted the predominant benefits test to determine whether meal periods
should be credited as work time. Barefield v. Village of Winnetka, 81 F.3d 704, 710 (7th Cir.
1996) (citing Alexander v. City of Chicago, 994 F.2d 333, 337 (7th Cir. 1993)). Under this test,
a meal period is not considered “work time if the employee’s time is not spent predominantly for
the benefit of the employer.” Id.
In support of its motion, defendant submitted a number of exhibits, including plaintiff’s
supervisors’ and other defendant employees’ depositions or affidavits, plaintiff’s time sheets,
and payroll records. Defendant submitted an affidavit from Darnell Cooks, plaintiff’s
supervisor, in which he attested to never observing, ordering, or requiring plaintiff to work
through his lunch break from April 2011 through April 2012. Defendant also submitted an
affidavit from Albert Rimito, the Superintendent/Center Supervisor of Westside ATC, in which
he attested that he would have approved a Westside ATC employee’s overtime request if the
employee worked through his lunch. In addition, defendant submitted plaintiff’s time sheets for
April 2011 through April 2012, which show that plaintiff never claimed to have worked through
any of his lunches.8 Finally, defendant submitted plaintiff’s payroll records to demonstrate that
plaintiff never requested overtime pay.
Plaintiff reviewed the time sheets each month with his supervisor, and never complained
of any discrepancies.
In contrast, at his deposition, plaintiff testified that because of understaffing, Westside
ATC staff members on his shift were unable to take their scheduled half-hour breaks. Plaintiff
explained that he was able to eat “a bite [of lunch] here and there . . . [but] he could not sit down
and eat [because he had to handle] transports, medical writs, picking up people that escape[d]”
and “especially taking people on medical, on tour duty.” Plaintiff claimed that these
responsibilities prohibited him from eating in the Westside ATC employee-only lunchroom and
forced him to eat in one of the Day Rooms where the inmates congregated. Consequently,
whether plaintiff’s lunch breaks were spent predominantly benefiting defendant remains a
genuine issue of material fact. Barefield, 81 F.3d at 710; Alexander, 994 F.2d at 337.
Defendant argues that plaintiff’s deposition is merely “self-serving testimony” and
cannot create an issue of material fact. Defendant relies on Boring v. World Gym-Bishop, Inc.,
2009 WL 703385, at *14 (N.D. Ill. 2009), for the proposition that a deposition alone cannot
create a genuine issue of material fact. This argument fails because it ignores clear Seventh
Circuit precedent, which states that “evidence presented in a ‘self-serving’ . . . deposition is
enough to thwart a summary judgment motion.” Payne v. Pauley, 337 F.3d 767, 773-75 (7th Cir.
2003); see also Kellar v. Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011) (finding that the
district court erred by not accepting the plaintiff’s deposition testimony because she “offere[ed]
no evidence other than her own testimony [in] support [of] her argument.”). Therefore,
plaintiff’s testimony is sufficient to create a genuine issue of material fact.
Additionally, courts have held that an employee raises a genuine issue of material fact
when he alleges that he constantly worked through his meal breaks. See e.g., Weidner v. Unity
Health Plans Ins. Corp., 606 F. Supp. 2d 949, 958-59 (W.D. Wis. 2009) (holding that even
though the defendant had records that indicated the plaintiff did not work more than 1,250 hours,
the undocumented time the plaintiff swore she spent working through her breaks was enough to
create a “material factual dispute”); see also Tavares v. Lawrence & Memorial Hosp., 2015 WL
2090493, at *6 (D. Conn. 2015) (holding that the plaintiff’s claim that she worked through all of
her lunch breaks was “specific and concrete enough to permit a reasonable jury to find in her
favor” to create a genuine issue of material fact).
Defendant further argues that even if plaintiff worked through his lunch, the half an hour
should not count as work time because defendant “did not have actual or constructive
knowledge” of him working through his breaks. Defendant improperly relies on 29 C.F.R.
§ 785.11 and Cunningham v. Gibson Electric Co., 43 F. Supp. 2d 965 (N.D. Ill. 1999), in an
effort to impose an affirmative requirement on plaintiff to establish defendant’s knowledge. 29
C.F.R. § 785.11 imposes no such duty. Instead, the regulation provides that unrequested work is
work time if the employer “suffer[s] or permit[s]” the work and “knows or has reason to believe
that [the employee] is continuing to work.” Likewise, Cunningham does not support defendant’s
position because there the court conducted a bench trial, performed a thorough inquiry into all of
the disputed facts, and ignored the unconvincing ones. See e.g., id. at 976 (disregarding
“unpersuasive testimony”). On summary judgment, the court may not conduct this type of
fact-intensive inquiry; it must determine only whether there is a genuine issue of material fact.
Green, 826 F.2d at 651. Regardless of what knowledge was required, there is still a genuine
issue of material fact as to whether “it was not a secret” that plaintiff worked through his lunch
Defendant also argues that it should prevail because plaintiff did not “present evidence
that he had personal knowledge that any of his IDOC supervisors or other personnel knew that
he worked through his 30-minute lunch break.” Defendant does not cite any support for this
requirement, and the FLSA regulations impose a duty on management only. 29 C.F.R. § 785.13
(placing an affirmative duty on employers to oversee employees, and not rely on a promulgated
rule only). At this time, it is not clear whether plaintiff worked through his lunch breaks, but it is
clear that defendant had a duty to ensure that plaintiff was not working through his breaks if it
did not want him to. Whether defendant met this duty remains a genuine issue of material fact.
Finally, defendant argues that even if plaintiff was an FMLA eligible employee, its
motion should still be granted because plaintiff exhausted his FMLA leave prior to April 7,
2012. An employee is entitled to twelve workweeks of FMLA leave in any twelve-month
period. 29 U.S.C. § 2611(2)(A). Defendant argues, and plaintiff denies, that between October
2011 and October 2012 plaintiff had already exhausted his FMLA leave.
Notwithstanding the fact that defendant has not submitted any evidence establishing that
it clearly articulated to its employees when the twelve-month period for calculating FMLA leave
began, see Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1127 (9th Cir. 2001), the
record shows that plaintiff had not exhausted his FMLA leave by April 7, 2012. Defendant
repeatedly argues that plaintiff was entitled to sixty calendar-days of leave, which he exhausted
by taking leave from “October of 2011 to December of 2011.” The FMLA grants an employee
twelve workweeks of protected leave, which courts understand to mean either sixty work-days or
eighty-four calendar-days. See e.g., Weidner, 606 F. Supp. 2d at 952 (interpreting twelve
workweeks as sixty work-days); see also Chatman v. Morgan Lewis & Bockius LLP, 2015 WL
1744120, at * 13 (N.D. Ill. 2015) (interpreting twelve workweeks as eighty-four calendar-days).
To accurately calculate an employee’s remaining FMLA leave requires a specificity in
dates that “October of 2011 to December of 2011” does not provide. The timesheets defendant
submitted as exhibits 5 and 6 of this motion show that plaintiff took FMLA leave from
October 11, 2011 to December 7, 2011. Defendant believed that plaintiff exhausted his FMLA
leave at this time and granted him FRL leave until December 20, 2011.9 It is ten weeks from
October 11, 2011, to December 20, 2011. Accordingly, even assuming that the FMLA year is
calculated from October 2011 to October 2012, plaintiff was entitled to an additional two weeks
of leave following his return to work on December 20, 2011.
Because there are genuine issues of material fact as to whether plaintiff was eligible for
FMLA leave from April 7 through April 10, 2012, and entitled to FMLA benefits, the court
denies defendant’s motion for summary judgment.
For the foregoing reasons, the court denies defendant’s motion for summary judgment.
The parties are ordered to appear for a status hearing on February 16, 2016, at 9:00 A.M.
January 29, 2016
Robert W. Gettleman
United States District Judge
For the purposes of this motion, the court considers this FRL leave as FMLA leave.
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