Scheidt v. Floor Covering Associates, Inc.
Filing
63
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/28/2018. For the reasons set forth below, Defendant's motion for summary judgment 44 is granted in part and denied in part. The case is set for further status on October 15, 2018 at 9:00 a.m. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHELLE SCHEIDT,
Plaintiff,
v.
FLOOR COVERING ASSOCIATES,
INC.,
Defendant.
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Case No. 16-cv-5999
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s motion for summary judgment [44]. For the reasons set
forth below, Defendant’s motion for summary judgment [44] is granted in part and denied in part.
The case is set for further status on October 15, 2018 at 9:00 a.m.
I.
Background
Defendant Floor Covering Associates, Inc. (“Defendant” or “FCA”) specializes in floor
covering services and installation for floor products such as hardwood flooring or tiles. [45 (Def.’s
Stmt. of Facts), at ¶ 1.] FCA was incorporated in 1976 and is based in Shorewood, Illinois. [Id.]
FCA hired Plaintiff Michelle Scheidt (“Plaintiff” or “Scheidt”) as an administrator in February
2013. [Id. at ¶ 2.] Plaintiff’s responsibilities included managing FCA’s website, maintaining
FCA’s social media platforms, answering telephone calls, developing floor sample programs,
transporting floor samples within FCA’s premises, and assisting with FCA’s online store. [Id.]
Brittaney Geskey is a manager at FCA, and she held that position during all times relevant to this
lawsuit. [44-1 (Geskey Aff.), at ¶ 2.] Plaintiff testified that prior to becoming pregnant, she was
friendly with Ms. Geskey. [45-2 (Scheidt Dep.), at 52:6-9.]
A.
Plaintiff’s Pregnancy
Plaintiff claims, however, that she was treated differently by Defendant—via
Ms. Geskey—after becoming pregnant. Plaintiff became pregnant sometime in 2013, and she
informed Plaintiff of her pregnancy sometime in November of that year.1 After Plaintiff notified
Ms. Geskey of her pregnancy, Ms. Geskey was no longer friendly towards Plaintiff. [Id.]
Furthermore, sometime after Plaintiff notified Ms. Geskey of her pregnancy, Ms. Geskey moved
Plaintiff to an office in which a vent from the bathroom released exhaust and fumes. [Id. at 51:2023, 92:6-23.] Although Defendant contends that “any issues with the bathroom vent being near
the office were resolved by ‘prop[ing] open the warehouse door to get some [ ] fresh air’” [55
(Resp. to Pl.’s Stmt. of Facts), at ¶ 4], Defendant has not identified any evidence indicating that
Plaintiff was satisfied with that solution.
Furthermore, before becoming pregnant, Plaintiff was allowed to stay late or work on
weekends to make up time she missed for medical appointments occurring during Defendant’s
usual business hours. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 9.] After January of 2014, however,
Plaintiff’s medical appointments during the day would count as her lunch break. [55 (Resp. to
Pl.’s Stmt. of Add’l Facts), at ¶ 10.] If Plaintiff’s appointment took longer than the hour allowed
for lunch, the missed time would cut against Plaintiff’s working time. Id. Plaintiff was no longer
allowed to stay late or work on weekends to make up time. Id. When Plaintiff had doctors’
appointments over her lunch break, Plaintiff would either skip eating or would eat something “easy
and quick” (like chips) in her car. [45-2 (Scheidt Dep.), at 57:21-58:2, 61:4-20.] Plaintiff did not
1
Plaintiff’s Statement of Facts asserts that Plaintiff informed Ms. Geskey that she was pregnant in
November 2014. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 1.] As Defendant notes, given that Plaintiff gave
birth in July 2014 and that her employment with Defendant was terminated that month, Plaintiff could not
have told Ms. Geskey of her pregnancy in November 2014. The Court infers that Plaintiff meant November
2013. Regardless, the Court does not rely on this fact in ruling on Defendant’s motion for summary
judgment.
2
ask her supervisor if she could eat at her desk on days she had doctors’ appointments, but Plaintiff
once was told to put her food away when she was eating at her desk. Id. at 58:7-17. Plaintiff
contends that other employees were allowed to stay late or work on weekends to make up time
they missed for personal appointments [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 14], but—as Defendant
notes—Plaintiff does not have any admissible evidence supporting that contention. The deposition
testimony Plaintiff cites to support that contention is based on speculation and/or hearsay.2 [45-2
(Scheidt Dep.), at 62:11-21.]
B.
Plaintiff’s Allergies
During the course of her pregnancy, Plaintiff developed allergies to the carpet materials at
Defendant’s business. [Id. at 49:15-19; 87:7-11.] Plaintiff’s allergy—which got more pronounced
in her second trimester—caused extreme swelling and an itchy, burning rash that “would get really
bad[.]” [Id. at 87:7-24.] Although Plaintiff initially did not mention breathing problems when she
was asked to describe the symptoms of her allergy, when asked whether she developed any
breathing issues, Plaintiff testified “[a] little bit.” [Id. at 88:1-6.] Plaintiff’s symptoms would
dissipate within an hour of leaving work. [53 (Resp. to Def.’s Stmt. of Facts), at ¶ 9.] Plaintiff
testified that her doctor did not prescribe any medication for her symptoms because she didn’t have
the allergy symptoms anywhere but her place of employment. [45-2 (Scheidt Dep.), at 89:3-9.]
Plaintiff also testified that her doctor told her the only medication safe for her to take was Benadryl,
but the Benadryl did not really help the symptoms because Plaintiff could only take low-dosages.3
Id.
2
Plaintiff may have personal knowledge that certain employees were absent at certain times, as she testified
that she covered for at least one such employee, but that does not establish any such employee was permitted
to makeup time after hours or on the weekend. While Plaintiff may have been told that was the case [45-2
(Scheidt Dep.), at 63:24-64:3], those statements are inadmissible hearsay. Fed. R. Evid. 802.
3
This testimony is not referenced in either parties’ statement of facts. However, when Plaintiff was asked
whether her doctor prescribed any medication for Plaintiff’s allergy symptoms, Plaintiff offered two
3
C.
Plaintiff’s Lifting Restriction
In addition to her pregnancy-related allergies, Plaintiff was placed on a ten-pound lifting
restriction while she was pregnant. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 15.] Plaintiff testified
that she provided Ms. Geskey with a doctor’s note for her ten-pound lifting restriction. Id.
Defendant disputes this contention, arguing that Plaintiff did not allege that she provided
Defendant with the note and that Defendant does not have any record of the note. [55 (Resp. to
Pl.’s Stmt. of Facts), at ¶ 15.] Defendant also notes that Plaintiff did not produce the note. Id.
However, Plaintiff testified that Ms. Geskey “tossed [the note] out” when Plaintiff gave it to her.
[45-2 (Scheidt Dep.), at 69:2-8.] Thus, although Defendant disputes that Plaintiff provided
Ms. Geskey with a doctor’s note indicating that she had a ten-pound lifting restriction, for purposes
of the motion for summary judgment, the Court must view the evidence in the light most favorable
to Plaintiff.
The ten-pound lifting restriction created a problem for Plaintiff, because her usual duties
included moving carpet and hardwood flooring samples that sometimes weighed more than ten
pounds. [55 (Resp. to Pl.’s Stmt. of Facts), at ¶ 17.] When Plaintiff initially asked Ms. Geskey
for assistance moving samples, Ms. Geskey informed Plaintiff that someone would move the
samples. [45-2, at 75:17-24.] When the samples were not moved a week or so later, Plaintiff again
told Ms. Geskey the boxes still were not moved and that they were too heavy for Plaintiff to move.
[Id. at 76:1-10.] Ms. Geskey told Plaintiff, “it’s your job.” [Id. at 76:4-19.] Plaintiff then found
other employees to help move the boxes. [Id. at 76:23-77:6.] Plaintiff never moved the boxes
herself, but she did testify that she had to start “badgering people to help” lift boxes for her. [Id.
at 78:5-23.]
explanations as to why her doctor did not prescribe any medication. The Court references this testimony
for the sake of completeness.
4
D.
Plaintiff’s Leave
On April 29, 2014 Plaintiff requested leave and submitted Defendant’s request for leave
form to Defendant. [45 (Def.’s Stmt. of Facts), at ¶¶ 5-6.] On the request for leave form, Plaintiff
specified that she was requesting leave “[b]ecause of the birth of an employee’s child and to care
for the employee’s newborn child” and “[b]ecause of the employee’s serious health condition
which makes the employee unable to work.” [Id. at ¶ 7.] On the request for leave form, Plaintiff
requested to use five paid vacation days in addition to her FMLA leave. [45-1 (Request for Leave
Form), at 3-4.] She requested leave beginning May 1, 2014 and ending September 22, 2014. Id.
Plaintiff noted that she was not giving Defendant 30-day advance notice, but explained that her
failure to provide Defendant with 30-day advance notice was due to the fact that she just found out
that day (i.e., April 29, 2014) that her doctor was recommending that she take leave. Id. at 4.
The request for leave form that Plaintiff signed includes Defendant’s FMLA policy, which
states: “A family leave of absence cannot exceed 12 weeks in any 12-month period.” [45 (Def.’s
Stmt. of Facts), at ¶ 11.] Plaintiff signed the request for leave form, which stated the following: “I
have read and understand the provisions of my family leave of absence. I will contact my general
manager two weeks prior to my expected return date.” [Id. at ¶ 12.] No one at FCA orally told
Plaintiff that she could return to work on September 22, 2014. [Id. at ¶ 13]. However, a human
resources manager approved Plaintiff’s request for leave form, which indicated that Plaintiff would
return to work on September 22, 2014. [45-1 (Request for Leave Form), at 5-6.]
When Plaintiff requested leave on April 30, 2014, she did not have any other note from a
doctor specifying when she could return to work. [45 (Def.’s Stmt. of Facts), at ¶ 22.] Plaintiff
later submitted a medical certification from doctor certifying that Plaintiff had a “serious health
condition” that was pregnancy related. [52-2, at 1.] Plaintiff’s doctor noted that the condition was
5
Plaintiff’s allergic reaction to carpet material and that the probable duration of Plaintiff’s
incapacity was from April 30, 2014 to six-weeks post-partum. [Id.] Defendant does not dispute
the fact that Plaintiff’s doctor advised her to avoid certain areas due to her allergy symptoms. [55
(Resp. to Pl.’s Stmt. of Facts), at ¶ 27.]
Plaintiff gave birth to her daughter in July 2014. After the birth of her daughter, Plaintiff
required a blood transfusion, although it is unclear why Plaintiff required a blood transfusion.4 [55
(Resp. to Pl.’s Stmt. of Facts), at ¶ 30.] While Plaintiff was on leave, she had at least some
communications with Defendant. For example, in an email to Plaintiff dated July 25, 2014,
Loraine Green (a payroll and benefits administrator for Defendant) stated: “Sorry to hear about the
complications. Keep in mind, you have 30 days to turn in your medical form adding [your
daughter]. Hope you’re feeling better next week. Enjoy your time with the baby!” [52-3, at 1.]
E.
Termination of Employment
Defendant terminated Plaintiff’s employment through a telephone call that lasted less than
a minute on July 30, 2014. [45 (Def.’s Stmt. of Facts), at ¶ 16; 52 (Pl.’s Stmt. of Facts), at ¶ 24.]
Defendant claims that it terminated Plaintiff on July 30, 2014 because she did not show up to work
that day. [44-1 (Geskey Aff.), at ¶ 12.] Specifically, Defendant claims that Plaintiff was expected
to return from work on July 30, 2014—which was twelve weeks and six days after Plaintiff’s
FMLA leave began—because that was when Plaintiff’s twelve weeks of FMLA leave plus five
days of remaining vacation expired. Plaintiff testified that she did not know she had to return to
week after being on leave for 12 weeks. [45-2 (Scheidt Dep.), at 81:14-17.] Defendant contends
that Plaintiff should have known she was expected to return to work on July 30, 2014—despite its
4
Plaintiff was unsure why she required a blood transfusion, and she was unable to identify why she required
a blood transfusion after she was terminated because she was unable to afford a specialist to review her
medical history. [55 (Resp. to Pl.’s Stmt. of Facts), at ¶ 32.]
6
approval of her leave through September 22, 2014—because its FMLA policy states: “A family
leave of absence cannot exceed 12 weeks in any 12-month period.” [See 44-1 (Geskey Aff.), at
¶ 9.] Defendant has not identified any other communication with Plaintiff indicating that Plaintiff
was expected to return to work on July 30, 2014.
After she was terminated, Plaintiff was given the option to obtain insurance coverage
through the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), which she
declined because of the great expense associated with such coverage and the lack of any means to
pay for it.5 [45-2 (Scheidt Dep.), at 27:1-8; 52 (Pl.’s Stmt. of Add’l Facts), at ¶ 38.] After her
termination, a doctor at Joliet Medical Center diagnosed her with depression. [53 (Pl.’s Resp. to
Def.’s Stmt. of Facts), at ¶ 32.] Plaintiff’s depression symptoms included a constant sense of
sadness, a loss of appetite, insomnia, and loss of desire to perform everyday functions. [55 (Def.’s
Resp. to Pl.’s Stmt. of Add’l Facts), at ¶ 34.] Although Plaintiff also indicated that she was not
producing milk at that time [45-2 (Scheidt Dep.), at 18:15-23], it is unclear whether her difficulty
producing milk was caused by her depression. Plaintiff did testify, however, that she was
producing enough milk to feed her child until she was terminated.6 [Id. at 26:6-16.] After her
employment was terminated, however, Plaintiff had to start giving her daughter formula. [Id. at
26:9-16.] Still, it took Plaintiff a couple months to find a formula her daughter would take. [Id.
5
Defendant disputes that Plaintiff was unable to elect insurance coverage under COBRA due to the high
cost of coverage under COBRA. [55 (Resp. to Pl.’s Stmt. of Add’l Facts), at ¶ 38.] However, this assertion
is supported by the testimony cited by Plaintiff.
6
Defendant challenges Plaintiff’s claim that she was able to breastfeed her newborn daughter without issue
before she was terminated, noting that Plaintiff testified that “it takes a few days” for the breastmilk “to
fully come in.” [55 (Resp. to Pl.’s Stmt. of Facts), at ¶ 35.] This does not mean, however, that Plaintiff
was unable to feed her child. Given that Plaintiff was able to breastfeed her daughter without using formula
before she was terminated, Plaintiff’s testimony generally supports her contention that she was able to
breastfeed her newborn daughter without issue before she was terminated.
7
at 25:11-16.] Plaintiff claims to have suffered emotional stress as a result of her difficulties
breastfeeding her daughter and her difficulties finding a formula that her daughter would take. [Id.
at 20:8-24.] Plaintiff was prescribed the generic version of Zoloft for her depression, which was
diagnosed shortly after her employment was terminated. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 37.]
The parties dispute whether Plaintiff’s depression was caused by her termination, post-partum
depression, or some combination thereof. [55 (Resp. to Pl.’s Stmt. of Add’l Facts), at ¶ 37.]
Neither party has identified expert testimony or other medical documents on the issue.
Plaintiff testified that she only would have come back to work on July 30, 2014 “if [she
had been] released to come back [by her] doctor.” [45 (Def.’s Stmt. of Facts), at ¶ 17.] As of that
date (on which Plaintiff was terminated), it is undisputed that she had not been not “released” by
her doctors to come back to work. [45 (Def.’s Stmt. of Facts), at ¶ 18.] However, Plaintiff disputes
the further assertion that she would not have been able to return to work on July 30, 2014, even if
she had known of Defendant’s expectation that she would return on that date, because her doctor
had not yet released her. [53 (Pl.’s Resp. to Def’s Stmt. of Facts), at ¶ 19.] Plaintiff contends that
she would have obtained a release from her doctor despite her condition at that time had she known
that Defendant was not going to uphold its end of the asserted agreement and instead was going to
fire her. [Id.] Although Plaintiff likely would have been able to return to work before September
22, 2014, as her doctor released her for work on August 28, 2014 [45 (Def.’s Stmt. of Facts), at
¶ 20], Plaintiff testified that she did not start seeking employment after her termination until
September 2014 because she was not released to work before then.7 [45-2 (Scheidt Dep.), at 11:1612:23, 85:20-86:1.] Plaintiff also waited until September 2014 to apply for unemployment for the
7
Plaintiff disputes that she waited until September 2014 to apply for employment after she was terminated.
[53 (Resp. to Def.’s Stmt. of Facts), at ¶ 29.] But Defendant’s contention is supported by Plaintiff’s
deposition testimony, and Plaintiff has not identified any contrary evidence.
8
same reason. [Id. at 85:20-86:1.] There is no way of knowing whether Plaintiff’s doctor would
have cleared her for work as of July 30 had she made such a request; any attempt to predict the
answer to that question, which was never asked, would be speculation. The only evidence before
the Court therefore supports Defendant’s contention that Plaintiff had not been cleared, and thus
could not have returned to work on July 30, 2014, which was less than two weeks after she gave
birth. Plaintiff has not presented any contrary evidence.
Plaintiff began collecting unemployment in September 2014. [45 (Def.’s Stmt. of Facts),
at ¶ 29.] In November 2014, Plaintiff began working as an office manager for Prime Woodcraft.
[45 (Def.’s Stmt. of Facts), at ¶ 30; 45-2 (Scheidt Dep.), at 8:8-11.] After Plaintiff went on
maternity leave at Prime Woodcraft, she decided not to return to work. [Id. at ¶ 31.]
F.
Defendant’s Treatment Of Other Employees
Plaintiff is not aware of an individual employed by FCA who went on FMLA leave for
more than twelve weeks and did not get fired. [45 (Def.’s Stmt. of Facts), at ¶ 23.] Plaintiff
disputes this assertion, claiming that she is aware of two non-pregnant employees who took leave
in excess of 12 weeks and were not terminated. [53 (Pl.’s Resp. to Def.’s Stmt. of Facts), at ¶ 23.]
However, Plaintiff fails to cite any admissible evidence that supports her denial. Plaintiff cites to
her testimony speculating about the length of leave taken by two non-pregnant employees. Id.
But Plaintiff testified that she believed the two employees as issue were on leave for a couple
months. [45-2 (Scheidt Dep.), at 45:24-46:8, 48:7-12.] Plaintiff could not say that either of the
two non-pregnant employees that she identified took leave for more than three months. [Id. at
93:11-94:5.] Thus, even assuming that Plaintiff has a sufficient foundation to testify about the
leave taken by these employees—which seems unlikely based on Plaintiff’s testimony—Plaintiff’s
testimony does not establish that Defendant permitted any non-pregnant employee to take more
9
than 12 weeks of leave. Plaintiff does agree, however, that Defendant has permitted several other
employees to take leave under the FMLA. [53 (Resp. to Def.’s Stmt. of Facts), at ¶ 25.]
II.
Legal Standard
Summary judgment is appropriate “if 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 dispute as to any 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 determining summary judgment motions, “facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott
v. Harris, 550 U.S. 372, 380 (2007). 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).
Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” Gibbs
v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014) (quoting Jewett v. Anders, 521 F.3d 818, 821 (7th Cir.
2008)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). “The court need consider only the cited materials, but it may consider other materials
10
in the record.” Fed. R. Civ. P. 56(c)(3). With each motion for summary judgment filed pursuant
to Rule 56 “the moving party shall serve and file—(1) any affidavits and other materials referred
to in Fed. R. Civ. P. 56(e); (2) a supporting memorandum of law; and (3) a statement of material
facts as to which the moving party contends there is no genuine issue and that entitle the moving
party to a judgment as a matter of law[.]” LR 56.1 (N.D. Ill.). The statement of material facts
“shall consist of short numbered paragraphs, including within each paragraph specific references
to the affidavits, parts of the record, and other supporting materials relied upon to support the facts
set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the
motion.” Id.
“Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials that
‘set forth specific facts showing that there is a genuine issue for trial.’” Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed. R. Civ. P. 56(e)); see also
Anderson, 477 U.S. at 250. 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, 477 U.S. at 248. The
party seeking summary judgment has the burden of establishing the lack of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d
699, 704 (7th Cir. 2016).
11
III.
Analysis
A.
Americans with Disabilities Act (Count I)
i.
Disability Requirement
In order to succeed on a discrimination claim pursuant to the Americans with Disabilities
Act (“ADA”), Plaintiff must meet the threshold burden of establishing that she was “disabled”
within the meaning of the statute. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.
1995). “[T]he inquiry is an individualized one, and must be determined on a case-by-case basis.”
Id. (citing Byrne v. Board of Education, 979 F.2d 560, 564 (7th Cir. 1992); Forrisi v. Bowen, 794
F.2d 931, 933 (4th Cir. 1986)). An individual is “disabled” if she has (1) a physical or mental
impairment which substantially limits one or more of the major life activities; (2) a record of such
an impairment; or (3) if she is regarded as having such an impairment. 42 U.S.C. § 12102(1). The
phrase “major life activities” is defined to include “[c]aring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and
working.” 29 C.F.R. § 1630.2(i)(1)(i). Furthermore, pursuant to EEOC regulations, “a physical
or mental impairment” encompasses conditions affecting the reproductive system.
Id. at
§ 1630.2(h)(1).
Here, Plaintiff argues that her pregnancy-related health problems constitute a disability
within the meaning of the ADA. As a preliminary matter, Defendant asserts that Plaintiff cannot
claim that her “pregnancy” was a disability because Plaintiff did not make such an allegation in
her complaint. However, Plaintiff’s complaint repeatedly references Plaintiff’s pregnancy and the
risks her pregnancy-related health problems posed to her unborn child. [See, e.g., 1, at ¶¶ 21, 40,
63, 89, 90.] Indeed, in Plaintiff’s charge of discrimination with the Illinois Department of Human
12
Rights, which Plaintiff attached to and incorporated by reference in her complaint, Plaintiff
asserted that Defendant terminated her because of her pregnancy. [1-3; 1 at ¶ 36.] Furthermore,
in Plaintiff’s medical certification, which Plaintiff also attached to and incorporated by reference
in her complaint, Plaintiff’s doctor linked her allergies to her pregnancy. [1-4, at 1.] The Court
therefore rejects Defendant’s contention that the Court should not even consider whether
Plaintiff’s pregnancy and pregnancy-related complications constitute a disability under the ADA.8
Turning to that issue, before the ADA Amendments Act of 2008 (“ADAAA”), courts
routinely held that medical conditions associated with a typical pregnancy did not qualify as a
disability under the ADA. See, e.g., Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 553 (7th
Cir. 2011) (applying ADA in effect prior to the 2008 amendments to hold that “[c]ourts that
consider these regulations consistently find that pregnancy, absent unusual circumstances, is not a
physical impairment” (collecting cases)); Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 975
(S.D. Iowa 2002) (“the majority of federal courts hold that absent unusual circumstances,
pregnancy-related medical conditions do not constitute a disability” (collecting cases)); Wenzlaff
v. NationsBank, 940 F. Supp. 889, 890 (D. Md. 1996) (“With near unanimity, federal courts have
held that pregnancy is not a ‘disability’ under the ADA.” (collecting cases)).
Although the 2008 amendments broadened the ADA’s definition of disability, these
changes only have had a modest impact when applied to pregnancy-related conditions. See, e.g.,
Lang v. Wal-Mart Stores E., L.P., 2015 WL 1523094, at *2 (D.N.H. Apr. 3, 2015) (“[P]regnancy
is not an actionable disability, unless it is accompanied by a pregnancy-related complication.”);
Annobil v. Worcester Skilled Care Ctr., Inc., 2014 WL 4657295, at *11 (D. Mass. Sept. 10, 2014)
8
In its statement of facts, Defendant asserts that Plaintiff’s disability was an “allergy to the carpet or the
materials at” FCA. [45, at ¶ 8 (citing 45-2 (Scheidt Dep.), at 40:2-4; 49:4-11).] Although Plaintiff testified
that her allergies were her disability, Plaintiff did not testify that her allergies were unrelated to her
pregnancy. Nor did Plaintiff testify that that her allergies were her only disability.
13
(granting summary judgment for defendant where plaintiff “provides no legal argument as to
whether such symptoms [including headaches, nausea and vomiting] differ from normal symptoms
of pregnancy and how these complications are disabling”); Mayorga v. Alorica, Inc., 2012 WL
3043021, at *5 (S.D. Fla. July 25, 2012) (Post-ADAAA, “[p]regnancy, absent unusual
circumstances, is not considered a disability under the ADA.” (collecting cases)). These cases are
consistent with the EEOC’s Interpretive Guidance, which provide—even after the ADAAA—that
“conditions, such as pregnancy, that are not the result of a physiological disorder are also not
impairments.” 29 C.F.R. Pt. 1630 App. § 1630.2(h).
“That said, ‘some pregnant workers may have impairments related to their pregnancies that
qualify as disabilities under the ADA, as amended.’” Love v. First Transit, Inc., 2017 WL
1022191, at *5 (N.D. Ill. Mar. 16, 2017) (quoting EEOC No. 915-003, Enforcement Guidance:
Pregnancy Discrimination and Related Issues, 2015 WL 4162723, at *19 (June 25, 2015)); see
also Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913, 920-21 (N.D. Ill. 2013)
(concluding that pregnancy-related health problems may constitute qualified disabilities under the
ADAAA). “Thus, where a medical condition arises out of a pregnancy and causes an impairment
separate from the symptoms associated with a healthy pregnancy, or significantly intensifies the
symptoms associated with a healthy pregnancy, such medical condition may fall within the ADA’s
definition of a disability.” Love, 2017 WL 1022191, at *5 (quoting Mayorga, 2012 WL 3043021,
at *5).
With respect to the first and second prongs of the ADA’s definition of disabled, “the
threshold issue of whether an impairment ‘substantially limits’ a major life activity should not
demand extensive analysis.” 29 C.F.R. § 1630.2(j)(iii). The term “substantially limits” is to “be
construed broadly in favor of expansive coverage” and “is not meant to be a demanding standard.”
14
Id. at § 1630.2(j)(i). Turning to the facts of this case, Plaintiff argues that her ability to reproduce
and carry her pregnancy to term was substantially limited by her pregnancy-related health
problems—thereby establishing a disability under the ADA. [51, at 3-5.]
Courts have held that the ability to procreate and carry a pregnancy to term is a major life
activity. Wadley v. Kiddie Acad. Int’l, Inc., 2018 WL 3035785, at *5 (E.D. Pa. June 19, 2018)
(“[A] high-risk pregnancy may, in some instances, constitute a disability if it substantially limits a
woman’s reproductive functions or other major life activity.”); Soodman v. Wildman, Harrold,
Allen & Dixon, 1997 WL 106257, at *6 (N.D. Ill. Feb. 10, 1997) (incompetent cervix causing
danger of pre-term labor constituted disability under ADA). Still, Defendant argues that Plaintiff’s
pregnancy-related allergies were not sufficiently severe to satisfy the “substantially limits”
requirement. [54, at 2.] In support of this argument, Defendant cites Love v. First Transit, which
recognized “that impairments of a very short-duration do not substantially limit major life activities
absent extenuating circumstances” and holding that an impairment lasting less than a day cannot
qualify as a “substantial limit” on a major life activity. 2017 WL 1022191 (N.D. Ill. Mar. 16,
2017)). However, the claimed impairment in Love was a pregnancy-related complication that
occurred on one specific day—plaintiff did not allege that she experienced pregnancy-related
complications prior to or after that specific day. While an impairment lasting less than one day is
not sufficient to establish a disability under the ADA, the Seventh Circuit has held “that ‘a
predictable yet intermittent pattern’ of impairment [is] sufficient to survive a motion for summary
judgment.” E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 643 (7th Cir. 2010) (quoting E.E.O.C. v.
Sears, Roebuck & Co., 233 F.3d 432, 440 n.4 (7th Cir. 2000)). Plaintiff’s allergies—which
returned whenever Plaintiff was at work—surely satisfy the predictable and intermittent pattern of
15
impairment standard. Id. (reversing summary judgment granted on basis of intermittent flare-up
standard where impairment flared-up four or five times a week).
However, Plaintiff has not presented sufficient evidence for a reasonable jury to conclude
that her allergy substantially limited her ability to procreate and carry a pregnancy to term, nor has
Plaintiff presented sufficient evidence for a reasonable jury to conclude that her allergy
substantially limited any other major life activity.9 Plaintiff’s doctor ordered her “to avoid the
chemicals in Defendant’s carpeting and materials,” which caused her swelling, rash, itching, and
minor breathing issues10 associated with her pregnancy. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 27.]
Without deprecating the severity of Plaintiff’s symptoms, Plaintiff has not identified any medical
evidence (or any other admissible evidence) explaining how these symptoms substantially limited
her ability to procreate and carry a pregnancy to term. Cf. Soodman v. Wildman, Harrold, Allen
& Dixon, 1997 WL 106257, at *6 (N.D. Ill. Feb. 10, 1997) (defendant recognized plaintiff had an
impaired ability to carry her fetus to term). Based on the limited evidence before the Court, no
reasonable jury could conclude that Plaintiff’s allergies substantially limited any major life
activity, such as the ability to procreate and carry a pregnancy to term.
Although Plaintiff’s doctor certified that she had a “serious health condition” as the term
is defined in the FMLA [1-4, at 1], that does not establish that Plaintiff’s symptoms constitute a
“disability” as the term is defined in the ADA.11 Burnett v. LFW Inc., 472 F.3d 471, 483 (7th Cir.
9
Although Defendant’s argument in support of summary judgment focuses on the temporal aspect of
Plaintiff’s allergies, Defendant generally argued that “Plaintiff has not provided any evidence that she
suffers any ‘impairment’ that ‘substantially limits’ any of her ‘major life activities.’” [44, at 7.]
10
As discussed above, when asked whether she developed any breathing issues, Plaintiff testified “[a] little
bit.” [45-2 (Scheidt Dep.), at 88:1-6.]
11
Plaintiff also argues that the fact that Defendant approved her leave demonstrates that they regarded her
as having a disability. [51, at 5-6.] Plaintiff again is equating FMLA standards with ADA standards.
16
2006) (A “‘[d]isability’ under the ADA and ‘serious health condition’ under the FMLA are distinct
concepts that require different analyses.” (citing Rhoads v. F.D.I.C., 257 F.3d 373, 387 n. 12 (4th
Cir. 2001); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1295 (11th Cir. 2006);
Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 861 (8th Cir. 2000))); see also Grady v.
FCA US LLC, 2017 WL 5896894, at *10 (N.D. Ill. Mar. 30, 2017) (holding that a “serious health
condition” under the FMLA do not necessarily constitute a “disability” under the ADA).
Accordingly, Defendant is granted summary judgment on Plaintiff’s ADA claim.12
ii.
Qualified Individual
In order to bring a claim under the ADA, Plaintiff must establish that she was a qualified
individual as the term is defined by the ADA.13 Stern v. St. Anthony’s Health Ctr., 788 F.3d 276,
Furthermore, the approval of leave does not necessarily mean that Plaintiff falls within the scope of the
ADA’s definition of disabled.
12
The Court notes that Plaintiff’s opposition to Defendant’s motion for summary judgment references her
lifting restriction. [51, at 5.] In the same context, Plaintiff also references the fact that she needed a blood
transfusion following the birth of her child. [Id.] Plaintiff appears to be under the impression that
pregnancy-related health conditions establish a disability under the ADA when they are not part of a
“normal” pregnancy. Plaintiff therefore appears to be citing her claimed lifting restriction in support of her
contention that she did not have a “normal” pregnancy. As discussed above, however, the relevant standard
is whether any purported disability limits a major life activity. The Court does not understand Plaintiff to
be bringing an ADA claim based on her lifting restriction alone. Indeed, if Plaintiff intended to bring an
ADA claim based on her claimed lifting restriction, one would expect that she would have referenced the
lifting restriction in more than one sentence in her opposition. The Court recognizes, however, that lifting
restrictions may constitute a disability under the ADA, as lifting is a major life activity under the ADA. 42
U.S.C.A. § 12102(2)(A); see also Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013) (“Lifting is
a major life activity under today’s law.” (citing 42 U.S.C. § 12102(2)(A)). While Plaintiff might be able to
show that her lifting restriction was a disability under the ADA, Plaintiff likely could not establish any other
elements of her ADA claim based on that disability. For example, Plaintiff could not show that she suffered
any adverse employment action as a result of that disability, which is necessary element of her ADA claim.
Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013) (citing Povey v. City of Jeffersonville, Ind., 697
F.3d 619, 622 (7th Cir. 2012)). Furthermore, although Plaintiff’s lifting restriction is referenced in her
complaint, there is no indication in the complaint that Plaintiff seeks to bring an ADA claim based on her
purported lifting restriction.
13
In its reply brief, Defendant argued for the first time that Plaintiff could not establish a failure to
accommodate claim under the ADA, because Plaintiff’s requested accommodation was not reasonable. [54,
at 2-3.] However, Plaintiff must show that she is a “qualified individual” to bring any claim under the
ADA. Because Defendant first touched upon this issue in its reply brief, the Court gave Plaintiff an
17
285 n.4 (7th Cir. 2015). The ADA defines a “qualified individual” as “an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C.A. § 12111(8). As the Seventh Circuit
has explained, a person requesting a long-term leave of absence cannot perform the essential
functions of her job and therefore is not a qualified individual. Waggoner v. Olin Corp., 169 F.3d
481, 482 (7th Cir. 1999) (“The rather common-sense idea is that if one is not able to be at work,
one cannot be a qualified individual.”).
A long-term leave of absence therefore “cannot be a reasonable accommodation.”
Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017); see also Byrne v. Avon
Prod., Inc., 328 F.3d 379, 381 (7th Cir. 2003) (“Inability to work for a multi-month period removes
a person from the class protected by the ADA.”). Plaintiff recognizes that a long-term leave of
absence is not a reasonable accommodation under the ADA. Plaintiff argues, however, that
because she requested less than two months of leave (which is in addition to the leave she already
had taken), her requested leave was a reasonable accommodation. [61, at 4-6.] But Plaintiff’s
argument is based on an incorrect assumption. Because courts have held that a multi-month leave
of absence is not reasonable accommodation, Plaintiff assumes that any leave of absence less than
two months necessarily must be a reasonable accommodation.14
opportunity to address this issue in a supplemental brief. [See 56.]
14
Plaintiff asserts that the court in Byrne only held that the requested leave was not a reasonable
accommodation because the requested leave was more than two months. [61, at 4 (citing Byrne, 328 F.3d
at 380-81).] In making this argument, Plaintiff relies on the fact that the Seventh Circuit concluded that the
employer in that case may have been on notice of the plaintiff’s alleged disability (his depression) ten days
before he was terminated. Id. However, the Court’s discussion of notice related to the plaintiff’s FMLA
claim, not the plaintiff’s ADA claim. Contrary to Plaintiff’s assertion, the Seventh Circuit’s decision in
Byrne does not support Plaintiff’s claim that any leave of absence less than two months constitutes a
reasonable accommodation.
18
The relevant standard, however, is whether Plaintiff is able “to perform the job’s essential
functions” with or without a reasonable accommodation. Byrne v. Avon Prod., Inc., 328 F.3d 379,
381 (7th Cir. 2003). Although the Seventh Circuit has indicated that “a short leave of absence—
say, a couple of days or even a couple of weeks—may” be a reasonable accommodation in
appropriate circumstances, Severson, 872 F.3d at 481, Plaintiff does not cite any cases indicating
that a leave of absence of less than two months always constitutes a reasonable accommodation.
In any event, Plaintiff’s argument suffers from a more fundamental problem: it assumes
that she only was requesting a leave of absence from July 30, 2014 to September 22, 2014 (or
possibly August 28, 2014, when Plaintiff presumably would have been able to return to work).
But Plaintiff’s leave actually began on May 1, 2014. Plaintiff’s condition necessitated long-term
medical leave, which “is in the domain of the FMLA[.]” Severson., 872 F.3d at 481 (quoting 29
U.S.C. § 2612(a)(1)(D)). “Although the ADA applies only to those who can do the job, the FMLA
affords those who can’t work as a result of a ‘serious health condition’ up to 12 weeks of leave in
a year.” Byrne v. Avon Prod., Inc., 328 F.3d 379, 381 (7th Cir. 2003) (quoting 29 U.S.C. §
2612(a)(1)(D)). Because Plaintiff’s medical condition necessitated long-term leave, Plaintiff was
unable to perform the essential functions of the employment position that she held.
Plaintiff argues that “[w]hen an employer grants what seems to be an accommodation, then
later rescinds that accommodation, the inconsistency creates a genuine issue of material fact as to
whether an employer reasonably accommodated an employee[.]” [61, at 2 (citing E.E.O.C. v.
Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005).] However, the case cited by Plaintiff,
E.E.O.C. v. Sears, Roebuck & Co., does not support that proposition. In that case, the district court
granted summary judgment for the defendant, concluding that plaintiff’s disability had been
reasonably accommodated. Sears, Roebuck & Co., 417 F.3d at 803. Because defendant had
19
rescinded one of the purported accommodations, and because defendant reprimanded plaintiff for
using another one of the purported accommodations, the Seventh Circuit reversed, concluding that
there was an issue of fact regarding whether plaintiff had been reasonably accommodated. Id.
Here, however, the issue is not whether Plaintiff was reasonably accommodated. Rather, the issue
is whether Plaintiff was able to perform the essential functions of her position with or without a
reasonable accommodation. As discussed above, she was not. Thus, Plaintiff’s failure to identify
sufficient evidence for a reasonable jury to find that she was a qualified individual also warrants
summary judgment in favor of Defendant on Plaintiff’s ADA claim.
iii.
Burden-Shifting Argument
Defendant also argues that it is entitled to summary judgment on Plaintiff’s ADA claim
because Plaintiff cannot establish that similarly situated employees without a disability were
treated more favorably. Defendant asserts that this is an element of Plaintiff’s ADA claim. [44,
at 5 (citing Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir.
2011); Reed v. Freedom Mortg. Corp., 869 F.3d 543, 547-48 (7th Cir. 2017)).] However, Plaintiff
only has to establish that similarly situated employees without a disability were treated more
favorably in order to invoke the burden-shifting method of proving discrimination established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is just one method of establishing
discrimination under the ADA. See, e.g., Reed v. Freedom Mortg. Corp., 869 F.3d 543, 547 (7th
Cir. 2017).
To the extent that Plaintiff seeks to establish the discrimination element of her ADA claim
pursuant to the McDonnell Douglas framework, the Court agrees that Plaintiff’s evidence falls
short. Plaintiff argues that other employees were treated more favorably because they were
allowed to make up time they missed for personal appointments after their shifts were over or on
20
weekends. [52 (Pl.’s Stmt. of Add’l Facts), at ¶ 14.] Defendant contests this assertion, however,
noting that the deposition testimony Plaintiff relies upon in support of that assertion is not
supported by personal knowledge. [55 (Resp. to Pl.’s Stmt. of Add’l Facts), at ¶ 14.] The Court
agrees. Plaintiff has not identified any admissible evidence sufficient to show that Defendant
allowed other employees to make up time they missed for personal appointments after their shifts
were over or on weekends.
However, Plaintiff is not limited to proving discrimination through the McDonnell Douglas
framework.15 The ultimate question “is simply whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d
760, 765 (7th Cir. 2016). In applying this standard, evidence must be considered as a whole, rather
than asking whether any particular piece of evidence proves the case by itself. Id. Given that
Plaintiff is not limited to the McDonnell Douglas framework, Plaintiff’s failure to identify
similarly situated employees without a disability that were treated more favorably does not
constitute yet another basis on which Defendant is entitled to summary judgment on Plaintiff’s
ADA claim. Still, because Plaintiff cannot establish a triable issue of fact on the “disability” or
“qualified individual” prongs, Defendant is granted summary judgment on Plaintiff’s ADA claim.
15
Defendant argues that—even assuming Plaintiff could establish her prima facie case—Defendant can
articulate a legitimate, non-discriminatory reason for the adverse employment action. [44, at 5 (citations
omitted).] Under the burden-shifting analysis, the burden would then shift back to Plaintiff to prove by a
preponderance of the evidence that the claimed justification for the adverse employment action was
pretextual. Id. Defendant contends that its legitimate, non-discriminatory reason for terminating Plaintiff
was her failure to appear for work when her FMLA leave expired. [44, at 8.] As discussed below, given
that Defendant approved Plaintiff’s leave and that there is no evidence that Defendant informed Plaintiff
that she was expected to return to work before September 2014, a reasonable jury could conclude that
Defendant’s claimed justification for Plaintiff’s termination was pretextual.
21
B.
Pregnancy Discrimination Act (Count II)
To succeed on a claim under Title VII of the Civil Rights Act of 1964, a plaintiff “must
show that [s]he is a member of a class protected by the statute, that [s]he has been the subject of
some form of adverse employment action * * * and that the employer took this adverse action on
account of the plaintiff's membership in the protected class.” Morgan v. SVT, LLC, 724 F.3d 990,
995 (7th Cir. 2013). “Title VII prohibits employment discrimination on the basis of sex.” Cadenas
v. Butterfield Health Care II, Inc., 2014 WL 3509719, at *3 (N.D. Ill. July 15, 2014) (citing 42
U.S.C. § 2000e–2(a)). Furthermore, “Congress explicitly extended Title VII protection to pregnant
women through the Pregnancy Discrimination Act of 1978 [the “PDA”], which prohibits
employment discrimination ‘because of or on the basis of pregnancy, childbirth, or related medical
conditions.’” Id. (quoting 42 U.S.C. § 2000e(k)).
Here, Plaintiff has identified sufficient evidence for a reasonable jury to find that she was
terminated because of or on the basis of pregnancy, childbirth, and/or related medical conditions.
To begin, “evidence that the plaintiff suffered an adverse employment action and that the
employer’s justification is pretextual” constitutes circumstantial evidence of discrimination.
Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011), overruled on other
grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Plaintiff has presented
such evidence here.
Defendant approved Plaintiff’s request for leave through September 22, 2014 for her
“serious health conditions” and “birth, adoption, or foster care[.]”16 [55 (Resp. to Pl.’s Stmt. of
16
Defendant disputes this assertion based on the fact that its FMLA policy states that “[a] family leave of
absence cannot exceed 12 weeks in any 12-month period.” [55 (Resp. to Pl.’s Stmt. of Add’l Facts), at ¶
19.] Defendant therefore contends that it only granted Plaintiff twelve weeks leave under the FMLA plus
any remaining vacation time, which expired on July 30, 2014. Id. However, a human resources manager
approved Plaintiff’s request for leave form, which indicated that Plaintiff would return to work on
22
Add’l Facts), at ¶¶ 19-20.] Plaintiff testified that she did not know she was expected to return on
July 30, 2014. [45-2 (Scheidt Dep.), at ¶ 81:14-17.] This belief is supported by the documentary
evidence before the Court. Five days before Plaintiff’s termination, she was communicating with
Defendant regarding her short-term disability benefits. [52-3, at 1-2.] For example, in an email
to Plaintiff dated July 25, 2014, Loraine Green (a payroll and benefits administrator for Defendant)
stated: “Sorry to hear about the complications. Keep in mind, you have 30 days to turn in your
medical form adding [your daughter]. Hope you’re feeling better next week. Enjoy your time
with the baby!” [52-3, at 1.] Nothing in this email indicates that Plaintiff was expected to return
to work on July 30, 2014. Furthermore, there is no evidence that Defendant ever communicated
to Plaintiff that she was expected to return to work on July 30, 2014.
Still, Defendant claims that Plaintiff was fired because of her failure to return to work after
her FMLA leave expired. [44-1 (Geskey Aff.), at ¶ 12.] Viewing the evidence in the light most
favorable to Plaintiff, a reasonable jury could find that Defendant’s justification for terminating
Plaintiff’s employment was pretextual. See, e.g., Loudermilk v. Best Pallet Co., LLC, 636 F.3d
312, 315 (7th Cir. 2011) (“The Civil Rights Act of 1964 does not require employers to have ‘just
cause’ for sacking a worker, but an employer who advances a fishy reason takes the risk that
disbelief of the reason will support an inference that it is a pretext for discrimination.” (citation
omitted)); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 290 (7th Cir. 1999) (employee’s firing
September 22, 2014. [45-1 (Request for Leave Form), at 5-6.] Defendant has not presented any argument
or evidence challenging the authenticity or admissibility of the request for leave form. To the contrary,
Defendant’s representative avers that the request for leave form before the Court is a complete and accurate
copy of the request for leave form submitted by Plaintiff. [44-1 (Geskey Aff.), at ¶ 6.] The Court recognizes
that Defendant’s approval of Plaintiff’s request for leave may be inconsistent with Defendant’s stated
FMLA policy. But that does not change the fact that Defendant’s human resources manager signed and
approved Plaintiff’s request for leave. Defendant may of course present its policies to the trier of fact in
support of its contention that it terminated Plaintiff because she did not return for work after her FMLA
leave expired.
23
for “theft” because he took a few potato chips from a co-worker’s open bag in the break room
where the co-worker did not object to the taking, defied “any common understanding of the term”
and so lacked credibility).
Defendant argues that Plaintiff was aware that she could not take more than twelve weeks
of leave, citing correspondence between Plaintiff and Defendant indicating that Plaintiff would get
“a total of 7 weeks” off. [55 (Resp. to Pl.’s Stmt. of Add’l Facts), at ¶ 28.] However, the cited
correspondence is from February 2014, which was before Plaintiff’s doctor concluded that
Plaintiff’s serious medical condition necessitated that Plaintiff take leave before the birth of her
child. The fact that Plaintiff initially expected to take 7 weeks off leave does not support
Defendant’s contention that Plaintiff was aware that she could not take more than twelve weeks of
leave. While Defendant’s approval of Plaintiff’s request for leave may be inconsistent with
Defendant’s stated FMLA policy, Defendant’s human resources manager signed and approved
Plaintiff’s request for leave. Defendant may of course present its policies to the trier of fact in
support of its contention that it terminated Plaintiff because she did not return for work after her
FMLA leave expired and to argue that Plaintiff knew or should have known that she was required
to return to work on July 30, 2014. It will be for the trier of fact to determine whether all the
evidence together indicates that Defendant’s claimed reason for terminating Plaintiff was a pretext.
Furthermore, Plaintiff was terminated less than two weeks after having her child. [45-2
(Scheidt Dep.), at 36:20-24.] While suspicious timing alone may not be sufficient to establish
discriminatory animus, Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater Chi., 104
F.3d 1004, 1011 (7th Cir. 1997), suspicious timing does support a finding of discriminatory
animus. Id. (“Suspicious timing does constitute circumstantial, or indirect, evidence to support a
24
claim of intentional discrimination or disparate treatment.” (citing Troupe v. May Dept. Stores Co.,
20 F.3d 734, 736 (7th Cir. 1994))).
Plaintiff may have other evidence supporting a finding of discriminatory animus.17 For
example, Plaintiff testified that sometime after she notified Defendant of her pregnancy she was
moved to an office in which a vent from the bathroom released exhaust and fumes. [45-2 (Scheidt
Dep.), at 51:20-23; 91:11-92:12.] Plaintiff also testified that prior to becoming pregnant, she was
friendly with Ms. Geskey—a manager at FCA—but that Ms. Geskey was not at all friendly
towards Plaintiff after she became pregnant. [Id. at 52:6-9.] While these acts may not constitute
an adverse employment action under the PDA, see David v. Bd. of Trs. of Cmty. Coll. Dist. No.
508, 846 F.3d 216, 225 n. 35 (7th Cir. 2017) (recognizing that an ‘adverse action must materially
alter the terms and conditions of employment” to be actionable (quoting Stutler v. Ill. Dep’t of
Corr., 263 F.3d 698, 703 (7th Cir. 2001))),18 they may constitute circumstantial evidence of
discriminatory animus. See Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 741-42 (7th Cir. 2013)
(holding that a “supervisor’s immediate change in treatment towards [plaintiff] after learning of
her pregnancy” evidenced a discriminatory animus); Coleman v. Donahoe, 667 F.3d 835, 861 (7th
Cir. 2012) (reversing summary judgment on retaliation claim based in part on evidence that
plaintiff received “a new and unpleasant work assignment” within a month after complaints).
17
Plaintiff’s response brief focuses on her contention that Defendant gave preferential treatment to nonpregnant employees by allowing them to make-up work missed because of appointment after ours or on
weekends. However, as discussed above, Plaintiff has not identified admissible evidence supporting this
assertion. Although the portion of Plaintiff’s response addressing her PDA claim did not discuss other
evidence relied upon by the Court (i.e., Defendant’s suspicious justification for terminating Plaintiff and
the suspicious timing of Plaintiff’s termination), Defendant addressed these arguments in its opening brief.
18
See Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App’x 9, 11-12 (2d Cir. 2013) (holding that
“not [being] permitted to take advantage of alternative work schedule” is not an adverse employment
action). Second, an employee being moved “due to an office space restriction” constitutes “legitimate,
nondiscriminatory reasons.” Lorenzo v. St. Luke’s-Roosevelt Hosp. Cent., 837 F. Supp. 2d 53, 63 (E.D.N.Y.
2011).
25
However, with respect to Plaintiff’s claim that Ms. Geskey’s treatment towards her
changed after Plaintiff became pregnant, Plaintiff does not provide details regarding how her
treatment changed.19 With respect to Plaintiff’s claim that she was forced to move offices because
of her pregnancy, Plaintiff does not provide details regarding the timing of her move. See Jajeh
v. Cty. of Cook, 678 F.3d 560, 570 (7th Cir. 2012) (concluding that temporal gap of more than five
months was too long to support inference of causal nexus). Still, given that a reasonable juror
could find that Defendant’s justification for terminating Plaintiff’s employment was pretextual,
particularly given the timing of Plaintiff’s termination, the Court denies Defendant’s motion for
summary judgment on Plaintiff’s PDA claim.
C.
Family Medical Leave Act (Count III)
Defendant argues that it is entitled to summary judgment on Plaintiff’s claim under the
Family Medical Leave Act (“FMLA”) because Plaintiff already had used the entirety of the leave
to which she was entitled under the FMLA when her employment was terminated. In order to
bring a claim under the FMLA, Plaintiff “must necessarily first establish that she was subject to
the FMLA’s protections.” Gomez v. Dynamic Mfg., Inc., 2013 WL 3270660, at *2 (N.D. Ill. June
27, 2013) (citing Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Ames v. Home Depot
U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011)). Plaintiff does not dispute that she used the full
twelve weeks of leave to which she was entitled under the FMLA, but argues that she should be
19
Plaintiff did testify that she never had lunch with anyone at FCA after she got pregnant, even though she
sometimes had lunch with people before becoming pregnant. [45-2 (Scheidt Dep.), at 51:15-23.] Plaintiff
perceived that she was not included in a social group at work and believed that those in the friend group
received preferential treatment. [Id. at 49:23-51:13.] Plaintiff does not, however, present sufficient details
to infer that any social exclusion was motivated by animus. To the extent Plaintiff testified that she was
treated differently because she was not part of a social group, the Court recognizes that such testimony
undermines Plaintiff’s contention that she was discriminated against based on a protected status. Still, it is
for the trier of fact to determine whether—in light of the other evidence presented by Plaintiff—Defendant
acted with a discriminatory animus.
26
allowed to proceed with her FMLA claim because Defendant expressly approved her request for
leave through September 22, 2014. [51, at 8.]
Although Plaintiff does not cite to any authority explaining why that fact is relevant, courts
have held that employers are equitably estopped from challenging an employee’s eligibility for
leave under the FMLA when the employer’s misrepresentation caused the employee to justifiably
believe they were entitled to leave to their detriment. See Kosakow v. New Rochelle Radiology
Assocs., 274 F.3d 706, 724-25 (2d Cir. 2001); Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d
352, 359 (5th Cir. 2006); Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 494 (8th Cir. 2002); see
also Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000) (“[A]n employer who
by his silence misled an employee concerning the employee’s entitlement to family leave might,
if the employee reasonably relied and was harmed as a result, be estopped to plead the defense of
ineligibility to the employee’s claim of entitlement to family leave.” (citations omitted)).
Here, Plaintiff cannot show actual reliance because she admitted that she had not been
released to return to work as of July 30, 2014, and has no non-speculative basis for suggesting that
her doctor would have released her had she had known that her leave expired on that day.20
Although Plaintiff testified that she would have returned to work on July 30, 3014 if she was
released to return by her doctor [51, at 11 (quoting 45-2 (Scheidt Dep.), at 82:3-18)], Plaintiff’s
doctor did not release her to return to work until August 28, 2014. [55 (Def.’s Resp. to Pl.’s Stmt.
of Add’l Facts), at ¶ 39.] Plaintiff also testified that she did not start seeking employment after her
20
The parties address this argument in connection with Plaintiff’s promissory estoppel claim, but not in
connection with Plaintiff’s FMLA claim. Defendant likely did not address the argument because Plaintiff
did not specifically raise this defense (or cite to any case in support thereof). Still, Plaintiff did argue that
she should be allowed to proceed on her FMLA interference claim because Defendant approved her leave,
which touches upon the equitable estoppel argument. Because the parties have addressed the facts relating
to estoppel in connection with Plaintiff’s promissory estoppel claim, the Court also addresses it here.
27
termination until September 2014, because she was not released to work before then. [45-2
(Scheidt Dep.), at 11:16-12:23, 85:20-86:1.] Plaintiff also waited until September 2014 to apply
for unemployment for the same reasons. [Id. at 85:20-86:1.] In short, because there is no evidence
from which a jury could infer that Plaintiff was able to return to work on July 30, 2014, Plaintiff
cannot establish actual reliance and thus cannot invoke equitable estoppel to save her FMLA claim.
Plaintiff also argues that whether she had exhausted her rights under the FMLA is irrelevant
to her FMLA retaliation claim. However, as with an FMLA interference claim, Plaintiff must
“establish that she was subject to the FMLA’s protections” in order to bring a retaliation claim
under the FMLA.21 Gomez, 2013 WL 3270660, at *2 (citing Righi v. SMC Corp., 632 F.3d 404,
408 (7th Cir. 2011); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 670 (7th Cir. 2011)); see also
LaPorte v. Bureau Veritas N. Am., Inc., 2015 WL 425825, at *10 (N.D. Ill. Jan. 30, 2015) (holding
that FMLA retaliation claim fails as a matter of law where plaintiff “was unable to return at the
end of his twelve weeks of protected FMLA leave”); Pontolillo v. St. Vincent Health, Inc., 2009
WL 276784, at *11 (S.D. Ind. Feb. 4, 2009) (same, collecting cases). Accordingly, Defendant’s
motion for summary judgment on Plaintiff’s FMLA claim is granted.
D.
State Law Claims (Counts IV through VIII)
i.
Preemption
Defendant argues that Plaintiff’s state-law claims are preempted by the FMLA because
they rely on the same or similar factual allegations as Plaintiff’s FMLA claim. Defendant therefore
argues that it is entitled to summary judgment on Plaintiff’s state-law claims. In support of this
argument, Defendant cites Alvarez v. Hi-Temp Inc., which held that states cannot provide
additional remedies for FMLA violations. 2004 WL 603489, at *4 (N.D. Ill. Mar. 24, 2004).
21
Even though Defendant cited authority establishing this point, Plaintiff failed entirely to address the
authority.
28
Defendant assumes—without explanation—that Plaintiff’s state-law claims are premised on a
“right created by the FMLA” simply because they involve similar facts as Plaintiff’s FMLA claim
and that Plaintiff’s state-law claims therefore are preempted. But Plaintiff is not bringing statelaw claims premised on an alleged violation of the FMLA.
As recognized in Alvarez, Section 2651(b) of the FMLA provides that “[n]othing in this
Act or any amendment made to this Act shall be construed to supersede any provision of any State
or local law that provides greater family or medical leave rights than the rights established under
this Act or any amendment made by this Act.” 29 U.S.C. § 2651(b). Courts therefore have
concluded that the FMLA was not meant completely to preempt state-law claims in the field of
regulation relating to family and medical leave rights. See, e.g., Alvarez, 2004 WL 603489, at *4.
Rather, in order to determine whether the FMLA preempts state-law claims, courts consider
whether the state-law claims frustrate the purpose of the FMLA. Arango v. Work & Well, Inc.,
930 F. Supp. 2d 940, 942 (N.D. Ill. 2013) (citing MITE Corp. v. Dixon, 633 F.2d 486, 493 (7th
Cir. 1980)). Because there is no indication that Plaintiff’s state-law claims frustrate the purpose
of the FMLA—and because Defendant has not so argued—the Court denies Defendant’s motion
for summary judgment on Plaintiff’s state-law claims on preemption grounds.
ii.
Promissory Estoppel (Count IV)
Defendant argues that it is entitled to summary judgment on Plaintiff’s promissory estoppel
claim (Count IV) because Plaintiff cannot establish actual reliance. Under Illinois law, promissory
estoppel requires proof of the following: (1) existence of an unambiguous promise; (2) reliance on
that promise; (3) that the reliance was reasonable and foreseeable; and (4) that the promise actually
relied on the promise to her detriment. See Sembos v. Philips Components, 376 F.3d 696, 704 (7th
Cir. 2004). As discussed above, Plaintiff cannot establish actual reliance because she has come
29
forward with no admissible evidence that she could have returned to work on July 30, 2014 even
if she had known that her FMLA leave expired on that day. Accordingly, Defendant is granted
summary judgment on Plaintiff’s state-law promissory estoppel claim.
iii.
Illinois Human Rights Act (Count V)
Defendant argues that it is entitled to summary judgment on Plaintiff’s claim under the
Illinois Human Rights Act (Count V) because Plaintiff has not identified any evidence indicating
that another similarly situated, nonpregnant employee was treated more favorably than Plaintiff.
The Illinois Human Rights Act (“IHRA”) provides that it is a civil rights violation “[f]or an
employer * * * [to] discharge [an employee] * * * on the basis of pregnancy, childbirth, or medical
or common conditions related to pregnancy or childbirth.” 775 ILCS 5/2-102(I).
Defendant argues that to establish a prima facie discrimination claim under the IHRA,
Plaintiff must show that (1) she is a member of a protected class; (2) she met her employer’s
legitimate work expectations; (3) she suffered an adverse employment action; and (4) another
similarly situated, non-pregnant employee was treated more favorably. [44, at 13 (citing Martinez
v. Nw. Univ., 173 F. Supp. 3d 777, 785 (N.D. Ill. 2016)).] According to Defendant, Plaintiff has
not presented evidence sufficient to establish the last element of her prima facie claim. However,
Defendant again incorrectly confuses a burden-shifting framework for establishing
discrimination—which is just one method of establishing discrimination—with the elements of the
relevant cause of action. Martinez, 173 F. Supp. 3d at 785 (discussing the elements of the burdenshifting method of proving discrimination, formerly referred to as the “indirect method”).
Regardless, if Defendant had addressed other methods for proving discrimination,
Defendant’s argument would have failed. “Illinois courts apply the federal Title VII framework
to claims of discrimination made under the Illinois Human Rights Act.” Reed v. Freedom Mortg.
30
Corp., 869 F.3d 543, 547 (7th Cir. 2017). Because Plaintiff has identified sufficient evidence for
a reasonable jury to find discrimination under her PDA claim (which she brings pursuant to Title
VII), Defendant’s motion for summary judgment on Plaintiff’s IHRA claim is denied.
iv.
Retaliatory Discharge (Count VI)
Plaintiff seeks to bring a claim for retaliatory discharge under Illinois law. This “tort is an
exception to the general rule that an ‘at-will’ employment is terminable at any time for any or no
cause.” Blount v. Stroud, 904 N.E.2d 1, 9 (Ill. 2009) (quoting Palmateer v. Int’l Harvester Co.,
421 N.E.2d 876, 878 (Ill. 1981)). It is a “limited and narrow cause of action,” Turner v. Mem’l
Med. Ctr., 911 N.E.2d 369, 374 (Ill. 2009), that “seeks to achieve a proper balance * * * among
the employer’s interest in operating a business efficiently and profitably, the employee’s interest
in earning a livelihood, and society’s interest in seeing its public policies carried out.” Id. at 375
(quoting Fellhauer v. City of Geneva, 568 N.E.2d 870, 876 (Ill. 1991)); see also Brooks v. Pactiv
Corp., 729 F.3d 758, 767 (7th Cir. 2013) (“Illinois courts have emphasized that the retaliatorydischarge cause of action is a narrow and limited exception to the employment-at-will doctrine.”).
Generally, it is properly invoked where “an employer could effectively frustrate a significant
public policy by using its power of dismissal in a coercive manner.” Fellhauer, 568 N.E.2d at
876. Such a policy may arise under the Illinois state constitution, Illinois statutes, or judicial
decisions rendered by Illinois state courts. Turner, 911 N.E.2d at 374 (quoting Palmateer v. Int’l
Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981)). “The Illinois Supreme Court has defined ‘public
policy’ only within these limited bounds and thus has consistently sought to restrict the common
law tort of retaliatory discharge.” Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 629
(7th Cir. 2009) (citations and quotations omitted). Illinois courts consistently have refused to
31
expand the tort to reach personal and individual grievances. See, e.g., Irizarry v. Ill. Cent. R.R.
Co., 879 N.E.2d 1007, 1012 (Ill. App. Ct. 2007).
To that end, as the Supreme Court of Illinois recently recognized, “a review of Illinois case
law reveals that retaliatory discharge actions have been allowed in two settings: where an employee
is discharged for filing, or in anticipation of filing, a claim under the Workers’ Compensation Act;
or where an employee is discharged in retaliation for the reporting of illegal or improper conduct,
otherwise known as ‘whistleblowing.’” Michael v. Precision Alliance Grp., LLC, 21 N.E.3d 1183,
1188 (Ill. 2014) (citations omitted); see also Bourbon v. Kmart Corp., 223 F.3d 469, 472 (7th Cir.
2000) (“Illinois law allows claims for retaliatory discharge when an employee is terminated for
filing a workers’ compensation claim or because the employee has reported the employer’s
criminal conduct, either to law enforcement personnel or to the company itself.” (citations
omitted)). Defendant argues that it is entitled to summary judgment on Plaintiff’s retaliatory
discharge claim because Plaintiff’s claim does not fall within either of those settings.
Plaintiff does not contend that her retaliatory discharge claim falls within the two categories
of retaliatory discharge claims recognized by the Supreme Court of Illinois. Instead, Plaintiff
argues that she should be allowed to proceed with her retaliatory discharge claim because the
conduct at issue concerns a violation of public policy. Plaintiff does not cite any authority
indicating that violations of the PDA and/or the IHRA can serve as the basis of a retaliatory
discharge claim under Illinois law. Given the clear case law from the Supreme Court of Illinois
discussed above, the Court declines to expand the common law tort of retaliatory discharge
Accordingly, Defendant’s motion for summary judgment on Plaintiff’s retaliatory discharge claim
is granted.
32
v.
Intentional and Negligent Infliction of Emotional Distress (Counts VII and
VIII)
Defendant argues that it is entitled to summary judgment on Plaintiff’s intentional and
negligent infliction of emotional distress claims (Counts VII and VIII) because no reasonable jury
could find that their conduct was “extreme and outrageous” as required to succeed on those causes
of action under Illinois law. Illinois courts have been hesitant to find intentional infliction of
emotional distress in the workplace because, “if everyday job stresses resulting from discipline,
personality conflicts, job transfers or even terminations could give rise to a cause of action for
intentional infliction of emotional distress, nearly every employee would have a cause of action.”
Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 867 (Ill. App. Ct. 2000) (citations
omitted).
Indeed, courts have concluded that similar cases do not rise to the level of extreme and
outrageous. See, e.g., Stoecklein v. Illinois Tool Works, Inc., 589 F. Supp. 139, 146 (N.D. Ill. 1984)
(an employer’s conduct in demoting and forcing an employee into retirement because of his age,
then reneging on a promise of severance pay and job counseling, was not extreme and outrageous);
Balark v. Ethicon, Inc., 575 F. Supp. 1227, 1230-32 (N.D. Ill. 1983) (an employer’s refusal to
reinstate an employee despite an arbitration award in the employee’s favor, together with a baseless
referral of the employee’s name to the FBI for investigation, was not extreme and outrageous);
Witkowski v. St. Anne’s Hosp. of Chicago, Inc., 447 N.E.2d 1016, 1022-23 (Ill. App. Ct. 1983) (an
alleged wrongful discharge to prevent a plaintiff from securing long-term disability benefits was
not extreme and outrageous); see also Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684
(Ill. App. Ct. 1999) (“[I]n the absence of conduct calculated to coerce an employee to do something
illegal, courts have generally declined to find an employer’s retaliatory conduct sufficiently
extreme and outrageous as to give rise to an action for intentional infliction of emotional
33
distress.”). Plaintiff has not cited any contrary case—or any case or authority for that matter—in
support of her argument.
Accordingly, the Court grants Defendant summary judgment on
Plaintiff’s intentional and negligent infliction of emotional distress claims (Counts VII and VIII).22
IV.
Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment [44] is granted
in part and denied in part. The case is set for further status on October 15, 2018 at 9:00 a.m.
Dated: September 28, 2018
____________________________
Robert M. Dow, Jr.
United States District Judge
22
Because the Court grants Defendant’s motion for summary judgment on Plaintiff’s intentional and
negligent infliction of emotional distress claims, the Court need not consider Defendant’s alternative
argument that it should be granted summary judgment on Plaintiff’s negligent infliction of emotional
distress claim based on Plaintiff’s failure to identify any negligent acts. Given that Defendant’s only
legitimate explanation for approving Plaintiff’s leave through September 22, 2014 would be mistake,
however, the Court questions whether Defendant’s argument on this issue has any merit.
34
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