Kuehne v. Arlington Heights Park District

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 4/18/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN KUEHNE,
Plaintiff,
v.
ARLINGTON HEIGHTS PARK
DISTRICT,

Case No. 1:15-cv-06525
Judge John Robert Blakey

Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Arlington Heights Park District (“Defendant” or “Park District”)
employed Plaintiff John Kuehne (“Plaintiff” or “Kuehne”) from July 21, 2008 to
August 1, 2013. Plaintiff claims that his termination violated the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Family Medical Leave
Act (“FMLA”), 42 U.S.C. § 2601 et seq. Defendant moved for summary judgment,
and, for the following reasons, that motion [27] is granted.
I.

Background 1
A.

Plaintiff’s Employment

Plaintiff was employed by Defendant from July 21, 2008 to August 1, 2013 as
a General Trades Worker. [30] at 2. In that capacity, Plaintiff was responsible for

These facts are taken from the parties’ Local Rule 56.1 statements. [30] refers to Defendant’s
statement of facts. [31] contains Plaintiff’s responses to Defendant’s statement of facts and
Plaintiff’s additional facts as required by Local Rule 56.1. [35] refers to Defendant’s response to
Plaintiff’s submission of additional facts. The Court disregards any allegations in the parties’
statements that are not supported by cognizable evidence.

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maintaining plumbing, heating and air conditioning units; swimming pool
operations; and general electrical and carpentry work.

Id.

commonly performed job task was swimming pool maintenance.

Plaintiff’s most
Id.

Plaintiff

admits that his “essential job duties” required him to, inter alia, “lift up to seventyfive pounds without assistance” and “climb and work on ladders.” [31] at 9. At
various times throughout the employment period, however, the Park District placed
Plaintiff on “light duty,” which did not involve lifting heavy objects or climbing
ladders. Id.
B.

Defendant’s Other Personnel

Alan Welk (“Welk”), Defendant’s Superintendent of Parks, hired Plaintiff.
[30] at 3. Throughout the employment period, Plaintiff reported directly to Welk.
Id.

Welk is responsible for managing the Park District’s trades division.

Id.

Plaintiff was diagnosed with Type II Diabetes before he was hired, and Welk knew
about Plaintiff’s diagnosis at the time of his hiring. Id. at 6.
Nancy Aldrich (“Aldrich”) is the Superintendent of Human Resources for the
Park District. Id. at 4. Aldrich administers the Park District’s human resources
functions, crafting its leave policies and working to ensure its compliance with
applicable employment laws and regulations, including the FMLA and ADA. Id.
Aldrich learned about the Plaintiff’s diabetes shortly after his hiring. Id. at 6.
Donna Wilson (“Wilson”) is the Park District’s Director of Finance and
Personnel, and she oversees the Park District’s human resources functions, policies
and practices. Id. at 4.

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C.

FMLA Leave

The Park District has an explicit “FMLA Policy” designed to protect
employees’ FMLA rights. Id. at 5. The FMLA Policy informs employees that “if
[FMLA] leave was due to your own serious health condition, you will be required to
submit a fitness-for-duty certification” from your health care provider.

Id.

Defendant uses the “rolling” method of calculating FMLA leave. Id. at 7. Under
this approach, when the Park District establishes the first date of the requested
leave, it then determines how much FMLA leave, if any, the requesting employee
took in the twelve months immediately preceding the first date of the requested
leave. Id. If the employee has already taken twelve weeks of FMLA leave within
that period, the employee is not eligible to take additional FMLA leave at that time.
Id. at 8.
Defendant contends that, during the course of Plaintiff’s employment, he took
FMLA leave on the following dates: July 7, 2009 to August 4, 2009; December 9,
2009 to December 12, 2009; June 1, 2010 to June 17, 2010; January 12, 2011 to
January 29, 2011; April 23, 2011 to June 30, 2011; February 22, 2012 to May 31,
2012; October 10, 2012 to October 17, 2012; January 15, 2013 to February 6, 2013;
and April 25, 2013 to June 26, 2013. Id. at 6. On June 27, 2013, Aldrich told
Plaintiff that his FMLA leave was exhausted. 2
Plaintiff contends this assertion is “hearsay,” [31] at 11, but this argument is misplaced.
Defendant’s assertion is supported by Aldrich’s deposition testimony, which, on summary judgment,
stands “in place of in-court testimony” and “may be considered so long as the facts set out therein are
made on personal knowledge, would be admissible as testimony at trial, and show that the affiant is
competent to testify.” Rahn v. Bd. of Trustees of N. Illinois Univ., No. 09-cv-3033, 2014 WL
11395248, at *2 (N.D. Ill. June 6, 2014), aff’d, 803 F.3d 285 (7th Cir. 2015) (citing Fed. R. Civ. P.
56(c)).
2

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Plaintiff does not dispute that he was on leave at those times, but denies that
he was ever informed which leaves were counted against his FMLA entitlement.
[31] at 8. Plaintiff additionally concedes that many of his leaves were caused by
complications resulting from his diabetes, including the leaves he took from
December 18, 2008 to January 5, 2009 (foot surgery), December 22 to 30, 2010
(same), April 23 to June 30, 2011 (two toes on his left foot were amputated),
January 15, 2013 to February 6, 2013 (foot infection), and April 25, 2013 to June 26,
2013 (diabetic ulcer on his foot). Id. With the exception of the leave from April 25,
2013 to June 26, 2013, Plaintiff acknowledges that he did not suffer any retaliatory
actions when he returned to work. Id. at 9.
D.

Plaintiff’s Termination

Following his leave from April 15, 2013 to June 26, 2013, Plaintiff returned to
work on June 27, 2013. [30] at 8. Plaintiff claims that by June 27, he was fully
capable of performing his essential job functions. [31] at 13. Plaintiff’s contention
is supported by his own deposition testimony, his affidavit, and a note from his
podiatrist, which provided, in its totality, that “Patient may return to work 6/26/13.”
Id.; see also [30-13] at 2.
When Plaintiff first reported to Welk on June 27, Welk observed that
Plaintiff was limping. [31] at 12. Welk then directed Plaintiff to report to Aldrich
regarding his work status and ability to perform the essential functions of his job.
Id. At their June 27 meeting, Plaintiff presented Aldrich with his podiatrist’s note.
Id.

Aldrich explained that she needed more information regarding Plaintiff’s

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condition, and provided Plaintiff with an additional form for his doctor to complete.
Id. at 12-13. The parties agree that at the conclusion of the June 27 meeting,
Plaintiff was placed on paid administrative leave.

Id. at 14.

Plaintiff’s paid

administrative leave was set to expire on July 6, 2013. 3 [30] at 9.
On July 2, 2013, Plaintiff’s doctor completed the additional form supplied by
Aldrich, and sent her the same. Id. This form indicated, inter alia, that Plaintiff
was free to “return to work with no restrictions on 6/27/13.” Id.; see also [30-14] at
1.
Aldrich and Welk remained concerned regarding Plaintiff’s physical
condition, and on July 3, 2013, Aldrich attempted to contact Plaintiff to schedule a
functional capacity exam (“FCE”). [30] at 10. The FCE was designed to determine
whether Plaintiff could perform his essential job functions. Id. On July 5, 2013
Aldrich left Plaintiff a voicemail explaining that she was concerned that Plaintiff
could not safely do his job, and she had accordingly scheduled the FCE for July 8,
2013. [31] at 16. Plaintiff concedes that he listened to Aldrich’s voicemail on July 5,
2013, but did not return her call. Id.
Plaintiff also admits that he cancelled the FCE without talking to anyone
affiliated with the Park District. Id. at 17. Plaintiff further acknowledges that he
did not return to work after the expiration of his administrative leave on July 6,
2013. Id.

Plaintiff disputes Defendant’s contention that his administrative leave was set to expire on July 6,
2013, but the evidence Plaintiff cites fails to support his position. [31] at 14.
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After Plaintiff failed to report for either work or the FCE, Welk and Wilson
both left Plaintiff voicemails, telling him he needed to return to work. [30] at 12.
On July 12, 2013, Wilson wrote to Plaintiff, explaining that his “FMLA leave has
come to an end.”

[30-16] at 2.

Wilson also asked Plaintiff “why [he has] not

returned to work, why [he] did not attend the fitness for duty examination . . . and
why [he has] failed to return phone calls and messages left for [him] regarding [his]
return to work.” Id. Wilson further explained that if Plaintiff did not contact her by
July 17, 2013, he would be terminated. Id.
On July 17, Plaintiff called Wilson, and they discussed his failure to report
for the FCE or return to work. [31] at 18-19. Later that day, Wilson told Plaintiff
to report back to work on July 18, 2013. Id. Plaintiff was unavailable on July 18,
but he reported to work on July 19, 2013. Id. at 19. That same day, Welk told
Plaintiff to return to work on July 22, 2013, to meet with Welk and Aldrich
regarding his employment status. Id.
Plaintiff failed to report to work on July 22, with no explanation. Id. at 20.
Aldrich eventually discovered, after talking to other Park District employees, that
Plaintiff had been admitted to the Alexian Brothers Hospital in Elk Grove Village.
Id.

While in the hospital, Plaintiff and his doctors discussed the potential

amputation of his left foot.

[31] at 20-21.

In fact, Plaintiff’s doctors “strongly

recommended” that Plaintiff proceed with an amputation, but Plaintiff refused. Id.
at 21. On July 29, 2013, Plaintiff was discharged from the hospital. Id.

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Aldrich and Plaintiff next spoke on July 31, 2013. Id. Plaintiff informed
Aldrich that he had a blood infection and was not released to return to work. Id.
The parties dispute whether Plaintiff also indicated that he would need to be off
work for “several more weeks.” Id. In either event, Plaintiff admits that he did not
(and could not) provide a definitive date by which time he could return to work. Id.
at 21-22.
On August 1, 2013, Aldrich, Welk, and Wilson conferred regarding Plaintiff’s
employment status.

Id. at 22.

They discussed Plaintiff’s multiple unexcused

absences and the fact that he had not provided a date by which time he intended to
return to the Park District. Id. at 23. That same day, the decision was made to
terminate Plaintiff, though the parties dispute which individual had final authority
for the termination decision.

Id.

After the meeting, Aldrich left Plaintiff a

voicemail informing him of the decision.

Id. at 24.

Welk wrote separately to

Plaintiff, stating that: (1) Plaintiff was terminated because he was “unable to return
to work” and needed “open-ended leave”; and (2) if Plaintiff was released to return
to work, he could reapply for a position with the Park District. Id.; see also [30-17]
at 2.
On August 29, 2013, Plaintiff received another release from his doctor, which
indicated that he was free to perform “light duty work only.” [30-18] at 2. Plaintiff
admits this release was never provided to Defendant. [31] at 26.
On October 21, 2013, Plaintiff’s left foot was amputated. Id. at 25. Plaintiff
has not held a job since his termination, and has received social security disability

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insurance payments since 2014. Id. at 27-28.
II.

Legal Standard
Summary judgment is appropriate if the movant shows that there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of
law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A
genuine dispute as to any material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party. See
CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014).
III.

Analysis
Essentially, Plaintiff has four separate theories of recovery: (1) interference

under the FMLA; (2) retaliation under the FMLA; (3) disability discrimination
under the ADA; and (4) failure-to-accommodate under the ADA. 4

The Court

addresses Plaintiff’s ADA claims first, for reasons that will become apparent.

Plaintiff’s Amended Complaint enumerates five separate counts: Count I (“Family and Medical
Leave Act”); Count II (“Disability Discrimination”); Count III (“Disability Discrimination – Failure to
Accommodate”); Count IV (“Americans With Disabilities Act: Record of Impairment”); and Count V
(“Americans With Disabilities Act Regarded As Having An Impairment”). [18] at 5-15. Count IV
and Count V do not reflect independent bases of liability; instead, they refer to different standards
by which a plaintiff can be deemed “disabled” within the meaning of the ADA. See 42 U.S.C. §
12102(1) (“The term ‘disability’ means, with respect to an individual -- (A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a record
of such an impairment; or (C) being regarded as having such an impairment . . . .”). Since being
4

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A.

ADA Claims

Defendant argues that both of Plaintiff’s ADA claims fail, insofar as he was
not a “qualified individual” within the meaning of the statute. The Court agrees.
The ADA prohibits discrimination by an employer against a “qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). To determine whether
Plaintiff was a “qualified individual,” the Court must answer two questions: (1)
Does Plaintiff satisfy the prerequisites for the position, such as possessing the
proper educational background, employment experience, skills, or licenses?; and (2)
Can Plaintiff perform the “essential functions” of the position, with or without a
reasonable accommodation? See Wheatley v. Factory Card & Party Outlet, 826 F.3d
412, 417 (7th Cir. 2016). Only the second question is at issue here.
It is Plaintiff’s burden to produce evidence sufficient to permit a jury to
conclude that he would have been able to perform the essential functions of his job,
with or without a reasonable accommodation.

Id. at 418.

More specifically,

Plaintiff must “show that [he] could perform this essential function ‘as of the time of
the employment decision.’” Moore-Fotso v. Bd. of Educ. of the City of Chicago, No.
12-cv-10419, 2016 WL 5476235, at *9 (N.D. Ill. Sept. 29, 2016) (quoting Nowak v.
St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998)).
The “Seventh Circuit has ‘repeatedly held that an employee who does not
come to work cannot perform the essential functions of his job.’” Moore-Fotso, 2016
“disabled” is merely an element of Plaintiff’s properly-plead discrimination and failure-toaccommodate claims, Count IV and Count V are redundant. Count I, meanwhile, alleges both that
Defendant “interfered” with Plaintiff’s FMLA rights and that Plaintiff’s termination was “retaliation
for his request for an FMLA leave of absence.” [18] at 5. The Court accordingly construes Count I as
articulating claims for both interference and retaliation in violation of the FMLA.

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WL 5476235, at *8 (quoting Fogle v. Ispat Inland, Inc., 32 F. App’x 155, 157 (7th
Cir. 2002)); Lee v. Chicago Transit Auth., No. 12-cv-09180, 2016 WL 6680483, at *4
(N.D. Ill. Nov. 14, 2016) (“It is well-established that an employee who is unable to
work generally cannot perform the essential functions of the job, and thus an
extended leave of absence is not a reasonable accommodation that an employer
must provide so as to allow the employee to perform those functions.”); see also
Robert v. Bd. of Cty. Comm’rs of Brown Cty., Kans., 691 F.3d 1211, 1218-19 (10th
Cir. 2012) (At the time of plaintiff’s termination, “the county did not have a
reasonable estimate of when she would be able to resume all essential functions of
her employment.

As such, the only potential accommodation that would allow

[plaintiff] to perform the essential functions of her position was an indefinite
reprieve from those functions—an accommodation that is unreasonable as a matter
of law. For that reason, she was not a qualified individual under the ADA.”).
1.

Plaintiff Could Not Perform Essential Functions

Defendant claims that Plaintiff could not, at the time of his termination,
perform the “essential functions” of his job, as he was frequently absent from work
and unable to provide a date for his return.

Defendant further contends that

Plaintiff was not a “qualified individual” insofar as: (1) he began receiving social
security disability insurance benefits after his termination; (2) he refused to appear
for the FCE; and (3) he has not worked in any capacity since his termination more
than three years ago.

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Defendant’s argument comports with controlling precedent, as the ADA
simply “does not protect individuals who fail to show up for work, even when their
absences are a result of a disability.”

Fogle, 32 Fed. App’x at 157-58; see also

Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (Defendant is
“permitted to treat regular attendance as an essential job requirement and need not
accommodate erratic or unreliable attendance,” such that a plaintiff “whose
disability prevents her from coming to work regularly cannot perform the essential
functions of her job, and thus cannot be a qualified individual for ADA purposes.”);
E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir. 2001) (“Common
sense dictates that regular attendance is usually an essential function in most every
employment setting; if one is not present, he is usually unable to perform his job.
This is especially true . . . where the work must be done on the employer’s premises;
maintenance and production functions cannot be performed if the employee is not at
work.”) (internal quotation omitted); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th
Cir. 1999) (In most cases “the ADA does not protect persons who have erratic,
unexplained absences, even when those absences are a result of a disability. The
fact is that in most cases, attendance at the job site is a basic requirement of most
jobs.”).
Plaintiff here has failed to demonstrate that, “as of the time of the
employment decision,” he “could perform the essential function” of regularly
reporting to work. Moore-Fotso, 2016 WL 5476235, at *9. Before he was terminated
on August 1, 2013, Plaintiff had: (1) failed to report to work (without explanation)

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after the end of his administrative leave on July 6, 2013; (2) failed to attend (again,
without explanation) the FCE, scheduled on July 8, 2013; and (3) failed to report to
work (without explanation) on July 22, 2013. See supra at 6. By the time he was
terminated on August 1, Plaintiff had provided the Park District with “no
prescribed treatment, and no anticipated date by which [he] could have been
expected to attend work regularly even if [he] had been granted leave.” Basden, 714
F.3d at 1038. In fact, Plaintiff, at his deposition, could not identify any reason the
Park District might have believed Plaintiff was capable of returning to work on
August 1, 2013. See [30-2] at 19 (Q. “Did the Park District have any reason to
believe that you would eventually be able to come back to work?”; A. “I don’t
know.”).
2.

Plaintiff’s Evidence Is Insufficient

Plaintiff nevertheless contends that a reasonable jury could conclude that he
was capable of performing his job’s essential functions, in light of three discrete
categories of evidence. The Court addresses each in turn.
Plaintiff first points to his own testimony regarding his ability to perform the
essential functions of his job. This conclusory testimony, however, is “insufficient to
meet [his] burden on summary judgment.”

Wheatley v. Factory Card & Party

Outlet, 826 F.3d 412, 419 (7th Cir. 2016) (explaining that “a plaintiff does not
necessarily need to produce expert testimony in order to demonstrate that she is a
qualified individual,” because the “need for such evidence will depend upon the facts

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in each individual case,” but a plaintiff’s “conclusory and untested opinion/hope” is
insufficient).
Plaintiff next relies upon the “work releases” issued by his podiatrist on July
26 and July 2, 2013. This reliance is misplaced. The relevant question is whether a
reasonable jury could conclude that Plaintiff was capable of performing his job’s
essential functions “as of the time of the employment decision”; here, August 1, 2013.
Moore-Fotso, 2016 WL 5476235, at *9 (emphasis added). After receiving the work
releases on June 26 and July 2, Plaintiff: (1) never returned to work after the
expiration of his administrative leave on July 6; (2) refused to take his FCE on July
8; (3) failed to report to work on July 22; and (4) failed to provide Aldrich a date for
his return to work during their conversation on July 31. See supra at 6-7. In short,
Plaintiff’s work releases were issued prior to multiple unexplained absences, a
week-long hospital stay, and Plaintiff’s concession that he did not know when he
could ever return to work. No reasonable juror could conclude that Plaintiff was
capable of performing his essential functions on this record. 5
Finally, Plaintiff invokes Defendant’s “previous accommodations” to suggest
that a reasonable jury could conclude that he was capable of performing the
essential functions of his job.
function” at issue here.

This argument misapprehends the “essential

Defendant is not suggesting that Plaintiff was not a

“qualified individual” because he could not, for instance, climb ladders or lift heavy
loads; instead, Defendant is arguing that Plaintiff was not a “qualified individual”
Plaintiff’s work release from August 29, 2013 is similarly irrelevant, as it postdates “the time of the
employment decision.” Moore-Fotso, 2016 WL 5476235, at *9.
5

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because he could not perform the “essential function” of regularly showing up to
work. As discussed supra, employers are entitled to treat regular attendance as an
“essential function,” and Defendant had ample reason to conclude that Plaintiff was
incapable of regular attendance. Plaintiff had multiple unexplained absences in the
summer of 2013, and when Plaintiff discussed his absences with Aldrich on July 31,
he admitted that he could not provide a definitive return date. See supra at 6.
Indeed, Plaintiff conceded at his deposition that the Park District had no reason to
believe he would eventually be able to return to work. See [30-2] at 19 (Q. “Did the
Park District have any reason to believe that you would eventually be able to come
back to work?”; A. “I don’t know.”). To the extent Defendant’s prior accommodations
of Plaintiff’s disability are relevant at all, they simply reflect normal compliance
with the federal employment statutes.
In the end, Plaintiff’s suit seeks essentially an open-ended, indefinite
extension of his previous administrative leave, which Defendant was not obligated
to provide. And since his termination, Plaintiff’s foot was amputated, he has been
unable to work, and he has been collecting social security disability insurance
benefits. See supra at 6-7. No reasonable juror could conclude, on this record, that
Plaintiff was capable of performing his job’s essential functions at the time of his
termination, and Defendant is accordingly entitled to summary judgment on
Plaintiff’s ADA claims. 6

Plaintiff also attempts to evade the foregoing result by suggesting that Defendant’s “refusal to
engage Plaintiff in the interactive process to discuss potential accommodations precludes its
assertion that he was incapable of performing the essential functions of his position.” [32] at 11.
Plaintiff’s argument puts the cart before the horse. To be sure, the ADA requires an employer of a

6

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B.

FMLA Claims

To survive summary judgment on his FMLA claims, Plaintiff was similarly
obligated to demonstrate that he is capable of performing the “essential functions”
of the job at issue. See Franzen v. Ellis Corp., 543 F.3d 420, 426 (7th Cir. 2008)
(“An employee also has no right to reinstatement—and, therefore, damages—if, at
the end of his twelve-week [FMLA] period of leave, he is either unable or unwilling
to perform the essential functions of his job.”); see also 29 C.F.R. § 825.216(c) (“If the
employee is unable to perform an essential function of the position because of a
physical or mental condition, including the continuation of a serious health
condition or an injury or illness also covered by workers’ compensation, the
employee has no right to restoration to another position under the FMLA. The
employer’s obligations may, however, be governed by the Americans with
Disabilities Act (ADA), as amended.”).
The Seventh Circuit’s decision in James v. Hyatt Regency Chicago, 707 F.3d
775 (7th Cir. 2013), is instructive here. The plaintiff in James premised his FMLA
interference and retaliation claims on his employer’s failure to reinstate him after
disabled employee to engage in an “interactive process”—a “flexible give-and-take with the disabled
employee” designed to “determine what accommodation would enable the employee to continue
working.” Swanson v. Vill. of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015) (internal quotation
omitted). That said, the “failure of the interactive process is not an independent basis for liability
under the ADA.” Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 292 (7th Cir. 2015) (internal
quotation omitted). Indeed, even “if an employer fails to engage in the required process, that failure
need not be considered if the employee fails to present evidence sufficient to reach the jury on the
question of whether she was able to perform the essential functions of her job with an
accommodation.” Id. Phrased another way, “when no reasonable accommodation is possible the
failure to jaw about accommodation is harmless.” Mays v. Principi, 301 F.3d 866, 871 (7th Cir. 2002)
abrogated on other grounds by E.E.O.C. v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012).
Plaintiff has failed to present evidence from which a reasonable jury could conclude that, at the time
of his termination, he was capable of performing his job’s essential functions, and his “interactive
process” argument is accordingly rejected.

15

he submitted a doctor’s note releasing him to “light duty.” Id. at 778. In affirming
summary judgment for the defendant-employer, the Seventh Circuit reiterated that
employers “are under no obligation to restore an employee to his or her position if
the employee is unable to perform the essential functions of the job.” Id.; see also
O’Haver v. Orthopaedic Assocs. of Wisconsin, S.C., No. 15-cv-240, 2015 WL 5714231,
at *2 (E.D. Wis. Sept. 29, 2015), appeal dismissed (Jan. 12, 2016) (“Because O’Haver
was not capable of performing the essential functions of her position when her
FMLA leave ended, Orthopaedic Associates’s alleged interference and retaliation
did not result in damages to O’Haver and its termination of her employment was
lawful under the FMLA.”).
Here, Defendant’s “failure to reinstate” Plaintiff, when he was “not yet
cleared” to return to work, “cannot sustain a FMLA retaliation claim.” See Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 223 (7th Cir. 2015); see also Harris v. Proviso
Area for Exceptional Children, 581 F. Supp. 2d 942, 960 (N.D. Ill. 2008) (“The FMLA
does not protect a worker who needs a leave of indefinite duration from adverse
action.”); Gibson v. Lafayette Manor, Inc., No. CIV.A. 05-1082, 2007 WL 951473, at
*19 (W.D. Pa. Mar. 27, 2007) (An “employee, who is terminated after the expiration
of FMLA leave because the employee is unable to perform the essential functions of
the job at the time of termination, has failed to establish the requirement of an
adverse employment action for a FMLA retaliation claim.”).
The Court has already explained that by August 1, 2013, Plaintiff: (1) had
been intermittently absent from work; (2) could not provide Defendant with a date

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for his return to work; and (3) accordingly could not perform his job’s “essential
functions.” See supra at 10-14. These determinations are fatal to Plaintiff’s claims
under the FMLA, as they were for his claims under the ADA.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment [27] is

granted. The Clerk is directed to enter Rule 58 judgment in favor of Defendant and
against Plaintiff. Civil case terminated.

Date: April 18, 2017

Entered:

____________________________________
John Robert Blakey
United States District Judge

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