Jones v. Metropolitan Water Reclamation District et al
Filing
64
MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 8/9/2018. The Court grants the Defendant's Motion to Dismiss 52 . Counts I and II of the Plaintiff's Second Amended Complaint are dismissed with prejudice. The Court declines to exercise supplemental jurisdiction over Jones' only remaining state claim and, therefore, dismisses the state law claim for retaliatory discharge without prejudice. Mailed notice(lk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MONICA JONES,
Plaintiff,
v.
METROPOLITAN WATER RECLAMATION
DISTRICT OF GREATER CHICAGO
Defendant.
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No. 17 C 5879
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Monica Jones filed suit on August 11, 2017 against Defendant Metropolitan Water
Reclamation District of Greater Chicago (MWRD). (Dkt. 1). Jones’ First Amended Complaint
alleged violations of the Family Medical Leave Act (“FMLA”)1 and a state law claim of retaliatory
discharge against MWRD. (Dkt. 21). On March 27, 2018, the Court granted MWRD’s Motion to
Dismiss the FMLA claims pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. 47). Plaintiff filed a Second
Amended Complaint on April 13, 2018 and Defendant filed a Motion to Dismiss the FMLA claims
(Counts I and II) again. (Dkt. 49; Dkt. 52). The Motion to Dismiss (Dkt. 52) is granted for the
following reasons.
BACKGROUND
The facts set forth in Plaintiff’s Second Amended Complaint are accepted as true for the
purpose of reviewing the Motion to Dismiss. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,
1146 (7th Cir. 2010). The Court also considers the emails and attachments attached to the Second
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29 U.S.C § 2615 et seq.
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Amended Complaint, some of which were attached to the parties’ briefs on the first motion to
dismiss and considered by the Court in its prior opinion. (See Dkts. 49-1, 49-2, 49-3, 49-4 and 495); Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”). Overall, the facts alleged in the amended pleading remain
largely identical to Plaintiff’s First Amendment Complaint but for a few additions. (Dkt. 21; Dkt.
49). For purposes of deciding the Motion to Dismiss, the Court discusses only those facts relevant
to the FMLA claims at issue.
Plaintiff Monica Jones worked as a Diversity Officer for MWRD for nearly 11 months—
from September 8, 2015 until August 4, 2016. (Dkt. 49 at ¶ 5). On Friday, July 15, 2016, Jones
was in the office elevator when a co-worker carrying an oversized display case struck Jones in the
chest with the case causing her to suffer serious chest contusions. (Id. at ¶ 7). Later that day, Jones
left a voicemail for her immediate supervisor, Regina Berry, informing Berry that she had been
struck in the chest while on the elevator at work, that her chest was hurting, that she would treat
herself with medication and that she would keep Berry updated on her condition. (Id. at ¶ 8). On
Monday, July 18, Jones continued to feel chest pain and notified Berry that she had been injured
by the co-worker. (Id. at ¶¶ 7, 9). Berry instructed Jones to speak with Human Resources and she
did: Jones met with HR analyst Cordelia Henry that same day and met with Henry and HR analyst
Robert Byrne the following day. (Id. at ¶ ¶ 11, 13).
Jones also sought treatment for her injury. On Monday, July 18, after her conversations
with Berry and Henry, Jones visited the Immediate Care Center. (Id. at ¶ 13). By Thursday
morning, Jones’ chest pain had increased and she went to the emergency room. (Id. at ¶ 16). When
she returned to work that morning, Jones sent Berry, Henry and Byrne an email attaching the bill
from her emergency room visit and asking whether she should file a workers’ compensation claim.
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(Id. at ¶¶ 19-21, Dkt. 49-1). In response, Byrne told Jones she could contact Bob Gottstein, the
Claims Administrator, if she wished to file a worker’s compensation claim. (Dkt. 49 at ¶¶ 22-23;
Dkt. 49-1). Jones then emailed Gottstein stating she would like to file a worker’s compensation
claim. (Dkt. 49 at ¶¶ 24-25; Dkt. 49-1). Gottstein responded, telling Jones she would have to
complete an accident notification form with her supervisor to initiate the process. (Dkt. 49 at ¶¶
26-27; Dkt. 49-1).
Before she left work on Thursday, July 21, Jones emailed Berry a completed “Accident
Notification” form regarding the July 15, 2016 work-related injury. (Dkt. 49 at ¶ 34).
The
following day on Friday, July 22, Jones emailed Berry a copy of a “Patient Status Report”
completed by her doctor and dated June 22, 2016. (Id. at ¶ 35; Dkt. 49-3). The body of the email
stated only, “please see attached.” (Dkt. 49-3). Berry forwarded the email to Byrne and Henry.
(Id.).
The attached Patient Status Report listed Jones’ type of injury as “WC” for Worker’s
Compensation, listed the diagnosis as “L [left] chest wall contusion” and recommended a “light
duty” work restriction. (Dkt. 49 at ¶¶ 35-36). Specifically, under “Work Status,” the doctor
checked the box next to the option stating “Patient may return to limited duties with [certain]
restrictions on 7/25/16.” (Dkt. 49-3). The Report scheduled a follow-up appointment for six weeks
later on September 2, 2016. (Id.).
On Thursday, July 28, Jones experienced sharp pain in her left arm and on the left side of
her chest while at an off-site conference and scheduled an emergency doctor’s appointment. (Dkt.
49 at ¶¶ 37-39). The doctor opined that Jones needed to take time off of work completely in order
to recover from her injury. (Id. at ¶ 40). The doctor issued a second “Patient Status Report” listing
the same injury type and diagnosis as the first but this time, in the “Work Status” section, checking
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the box next to the option stating “Patient may not return to work/is to remain off work.” (Id. at
¶¶ 42-43; Dkt. 49-4). The July 28 Report did not specify when Jones could return to work but
scheduled a follow-up appointment for two weeks later on August 11, 2016. (Id.). In light of the
doctor’s recommendation, Jones understood that some form of ongoing, continued or intermittent
leave to treat her injury was reasonably foreseeable. (Id. at ¶ 44).
Jones returned to work that evening and emailed Berry, Henry and Byrne a copy of the
July 28 Patient Status Report. (Id. at ¶¶ 45-47; Dkts. 49-4). The body of the email stated:
My doctor is not allowing me to return to work for the next two weeks. I
have attached a soft copy for your review. Please advise if you have any
questions, comments, or concerns. Thank you.
(Dkt. 49-4). Jones also sent a copy of the July 28 Patient Status Report in a separate email to
Gottstein, copying Berry and Mary Nix, another MWRD employee. (Dkt. 49-5). The body of this
email similarly stated:
My doctor is not allowing me to return to work for the next two weeks. I
have attached a soft copy for your review. Do I need to fill out FMLA
paperwork for this time? Or is it notated that the Workers Comp claim is in
process? Or is this marked as a medical necessity and for the time used?
Please advise as soon as possible. Feel free to contact me if you have any
questions, comments, or concerns. Thank you.
(Dkt. 49-5). Jones alleges that her statement in the emails that she could not return for two weeks
was “erroneous.” (Dkt 49 at ¶ 48).
That same evening, Jones left a voicemail for Berry stating that “she just returned to the
office after seeing her doctor” and “her doctor was not letting her return” to work and asking
whether and how to initiate FMLA paperwork. (Id. at ¶¶ 49-50). Berry did not respond to the
voicemail. (Id. at ¶ 51). On Friday, July 29, Gottstein responded to Jones’ email stating that the
third-party workers compensation administrator was still investigating her workers’ compensation
claim and recommending that she “consider looking into completing possible FMLA paperwork.”
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(Id. at ¶ 52; Dkt. 49-5). MWRD provided no additional response to her July 28 Patient Status
Report or inquiries regarding her FMLA rights. (Id. at ¶ 53).
Jones did not work from Friday, July 29 through Wednesday, August 3. (Id. at ¶ 56). On
or about August 3, 2016, Berry submitted a written memorandum to David St. Pierre, Executive
Director of MWRD, recommending Jones’ termination. (Id. at ¶ 57). On Thursday, August 4,
Berry called Jones to inform her she was being fired for “unsatisfactory progress.” (Id. at ¶ 58).
Jones also received a letter from MWRD dated August 4, explaining that Berry had recommended
the termination based on Jones’ unsatisfactory services during her probationary period. (Id. at ¶
59).
September 8, 2016 would have marked 12 months’ employment at MWRD for Jones.
Jones’ period of recovery and ongoing medical treatment for the work-related injury ultimately
lasted until October 22, 2016. (Id. at ¶ 64).
LEGAL STANDARD
“To survive a motion to dismiss under 12(b)(6), a complaint must ‘state a claim to relief
that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 566 U.S. 662,
678 (2009)). “[I]t is not enough for a complaint to avoid foreclosing possible bases for relief; it
must actually suggest that the plaintiff has a right to relief . . . by providing allegations that ‘raise
a right to relief above the speculative level.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 777 (7th Cir. 2007) (citing Twombly, 550 U.S. at 555) (emphasis in original). The Court
construes the complaint “in the light most favorable to the nonmoving party, accept[s] well-
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pleaded facts as true, and draw[s] all inferences in her favor.” Reynolds, 623 F.3d at 1146.
“[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not
entitled to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011) (citing Iqbal, 566 U.S. at 678).
DISCUSSION
Plaintiff’s Second Amended Complaint realleges two claims under the FMLA against
Defendant MWRD: a claim of interference with Jones’ rights under the FMLA (Count I) and a
claim of retaliation for Jones’ attempt to exercise FMLA rights (Count II). Defendant MWRD
seeks dismissal of both for failure to state a claim pursuant to Rule 12(b)(6).
I.
Jones’ Interference Claim under the FMLA
As in the First Amended Complaint, Jones again alleges MWRD interfered with her FLMA
rights by terminating her employment and by failing to provide her with the requisite FMLAeligibility notice after she requested leave. To prevail on a claim for FMLA interference, Jones
must show that (1) she was eligible for protection under the FMLA, (2) her employer was covered
by the FMLA, (3) she was entitled to leave under the FMLA, (4) she provided sufficient notice of
her intent to take FMLA leave, and (5) her employer denied her the FMLA benefits to which she
was entitled. Goelzer v. Sheboygan Cty., Wis., 604 F.3d 987, 993 (7th Cir. 2010). The Court
previously dismissed Jones’ interference claim after finding that Jones failed to sufficiently allege
prongs (1) and (3)—that she is eligible for FMLA protection and entitled to FMLA leave. See
Jones v. Metro. Water Reclamation Dist. of Greater Chicago, No. 17 C 5879, 2018 WL 1508529
(N.D. Ill. Mar. 27, 2018).
To be eligible for the FMLA, an employee must be employed “for at least 12 months by
the employer” and have worked “at least 1,250 hours of service with such employer during the
previous 12-month period.” 29 U.S.C. § 2611(2)(A). The determination of whether an employee
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meets these requirements “must be made as of the date the FMLA leave is to start.” 20 C.F.R. §
825.110(d). Jones does not dispute that she had not worked for MWRD for 12 months and,
therefore, was not an “eligible employee” on July 28, 2016 when she inquired about taking leave.
In dismissing Jones’ FMLA claims in her First Amended Complaint, the Court held that
while a pre-eligibility request for post-eligibility leave is protected under the FMLA, Jones failed
to allege that she made such request. Jones, 2018 WL 1508529, at *4. Specifically, the Court
found that Jones failed to allege that she actually requested or put Defendants on notice that she
was requesting leave to begin on or after September 8, 2016 when she would have been eligible
for FMLA leave. Id. Rather, the Court found that the facts as alleged showed only that when
Jones was still five weeks away from becoming eligible under the FMLA, she merely requested
an immediate two weeks’ leave and mentioned the need for time off generally. Id. The Court
distinguished Jones’ allegations from cases in which a plaintiff successfully alleged a preeligibility request for post-eligibility leave. Id. (citing Reynolds v. Inter-Industry Conference on
Auto Collision Repair, 594 F. Supp. 2d 925, 926 (N.D. Ill. Jan. 13, 2009) (plaintiff who would
become eligible in August requested time off starting November); Pereda v. Brookdale Senior
Living Communities, Inc., 666 F.3d 1269, 1271 (11th Cir. 2012) (plaintiff who would become
eligible in October requested leave starting in November); Morkoetter v. Sonoco Prod. Co., 936
F. Supp. 2d 995, 997 (N.D. Ind. 2013) (plaintiff alleged his employer “knew that [he] had plans to
take medical leave after becoming eligible for FMLA leave”) (emphasis in original); Sine v.
Rockhill Mennonite Home, 275 F. Supp. 3d 538, 543-44 (E.D. Pa. 2017) (reasonable to conclude
from facts alleged that plaintiff was putting defendant on notice that she was scheduling surgery
to take place after her one-year work anniversary)).
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Jones argues she has amended her complaint to properly allege a pre-eligibility request for
post-eligibility leave. Jones amended her complaint by attaching copies of emails between her and
MWRD personnel and copies of the July 22 and July 28 Patient Status Reports. Some of the
emails, including the second email in which Jones states that her doctor is “not allowing [her] to
return to work for the next two weeks,” were attached to the parties’ briefs on the first motion to
dismiss and considered by the Court in its prior opinion. But Jones relies primarily on the Patient
Status Reports showing her doctor’s medical diagnosis and recommendations to cure the
deficiencies in her previous pleading. (See Dkt. 56 at 5-7). Also, in the Second Amended
Complaint, Jones clarifies what she said in the July 28 voicemail she left for Berry. Previously,
Jones alleged that she told Berry “about the doctor’s note, the need for time off” and asked “about
initiating the FMLA process and applicable paperwork.” (Dkt. 21 at ¶ 40). In the Second
Amended Complaint, Jones now alleges that she told Berry that “she just returned to the office
after seeing her doctor” and “[h]er doctor is not letting her return to work” and asking “whether
and how to initiate FMLA paperwork.” (Dkt. 49 at ¶ 50). Jones argues that these additional facts
sufficiently allege that her request was for “ongoing” and “open-ended” leave that may continue
into the eligibility period. (Dkt. 56 at 7-11).
But Jones’ communications with MWRD, even as realleged, never state that she needed or
that her doctor recommended “ongoing” or “open-ended” leave. Both of Jones’ emails to MWRD
stated that her doctor mandated that she take “the next two weeks” off work. Nothing about the
July 28 Patient Status Report indicated Jones would need more than two weeks off. Contrary to
Jones’ assertion, the Report did not recommend that she was to remain off work for an “openended period of time.” (See Dkt. 56 at 2). The Report stated only that Jones had a follow-up
appointment two weeks later and was otherwise silent as to whether she would need to take
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additional time off after that appointment. Likewise, Jones’ voicemail to Berry stated only that
her doctor “was not letting her return to work”; Jones never stated that she would need time off
indefinitely or that her doctor advised that she would need to be off work for an “open-ended”
period of time. To the extent the Patient Status Report or Jones’ email was ambiguous, Jones’
emails clarified that she was specifically requesting only two weeks’ leave.
When addressing the “serious health condition” element of an FMLA claim, the Seventh
Circuit has held that an employee need only place her employer on notice that she “likely” has an
FMLA-qualifying condition or of a “probable” basis for which she is entitled to FMLA leave. See
Burnett v. LFW Inc., 472 F.3d 471, 479 (7th Cir. 2006); Stevenson v. Hyre Elec. Co., 505 F.3d
720, 724-75 (7th Cir. 2007). Plaintiff argues the same “low bar” applies to notice that she is
requesting leave to begin at a time in which she would be eligible for leave under the FMLA. (Dkt.
56 at 8-10). Given the limited case law addressing pre-eligibility requests for post-eligibility
generally, it is no surprise the Seventh Circuit has not yet addressed what notice standard applies
when the timing rather than the basis of the requested leave is at issue. Regardless, Plaintiff’s
allegations fail to meet even the “low bar” set forth in the cases she cites.
Based on the information Jones provided to MWRD—the voicemail stating her doctor
“was not letting her return to work,” the first email stating that her doctor was “not allowing [her]
to return to work for the next two weeks,” the second email repeating the same, and the
accompanying doctor’s note showing she was to take off work and return for an appointment two
weeks’ later—MWRD was at best on notice that Jones’ needed two weeks off of work until her
follow-up appointment. Jones’ assertion that her two statements in the emails that she only needed
the “next two weeks” off work was erroneous changes nothing. Only Jones knew what her doctor
told her during her appointment. MWRD could rely only on the information Jones provided and
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based on that information as alleged, MWRD could not plausibly have been on notice that Jones
was requesting leave to begin five weeks later for the same injury or even that it was “likely” or
“probable” that she would need such leave.
Therefore, the Court’s prior reasoning still applies. Jones’ Second Amended Complaint
fails to sufficiently allege that she requested or put MWRD on notice that she was requesting leave
to begin on or after September 8, 2016. Jones’ FMLA interference claim is dismissed with
prejudice pursuant to Rule 12(b)(6).
II.
Jones’ Retaliation Claim Based on Termination
Jones also realleges her claim that MWRD unlawfully retaliated against her by terminating
her in response to her attempt to exercise her FMLA rights. To prevail on a claim for FMLA
retaliation, Jones must show that: (1) she engaged in a statutorily protected activity; (2) she
suffered an adverse employment decision; and (3) the decision was casually related to a protected
activity. Scruggs v. Carrier Corp., 688 F.3d 821, 826 (7th Cir. 2012). For the reasons discussed
above, Jones fails to allege she was entitled to FMLA protection and, therefore, that she engaged
in a statutorily protected activity. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828 (7th
Cir. 2012) (retaliation claim failed where employee failed to show he engaged in FMLA-protected
activity); Smith v. Hope Sch., 560 F.3d 694, 702 (7th Cir. 2009) (employee could not have been
fired for asserting rights under the FMLA where her request for leave was not protected).
Therefore, Jones’ FMLA retaliation claim based on her termination is also dismissed with
prejudice pursuant to Rule 12(b)(6).
III.
Jones’ Remaining State-Law Claim for Retaliatory Discharge under Illinois Common
Law
Jones’ only remaining claim alleges that MWRD discharged her in retaliation for seeking
and claiming benefits under the Workers’ Compensation Act. (Dkt. 49 at ¶¶ 91-100). “As a
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general matter, when all federal claims have been dismissed prior to trial, the federal court should
relinquish jurisdiction over the remaining pendant state claims.” Williams v. Rodriguez, 509 F.3d
392, 404 (7th Cir. 2007) (citing Wright v. Associated Ins. Cos., 29 F.3d 1244, 1252 (7th Cir.1994)).
This rule is subject to three exceptions: (1) when the statute of limitations bars the refiling of the
state claim, (2) where the court has already expended substantial judicial resources on the state
claim, and (3) when it is clearly apparent how the state claim is to be decided. Id. None of these
exceptions applies here. Under Illinois law, the statute of limitations for Jones’ retaliatory
discharge claim is five years and has, therefore, not expired on a claim based on events occurring
in 2016. See Zelman v. Hinsdale Twp. High Sch. Dist. 86, No. 10 C 00154, 2010 WL 4684039, at
*2 (N.D. Ill. Nov. 12, 2010) (five-year statute of limitation applies to tort of retaliatory discharge
claim under Illinois common law); see also Collins v. Town of Normal, 951 N.E.2d 1285, 1290
(Ill. App. Ct. 2011) (claim for discharge in retaliation for exercising rights under the Workers’
Compensation Act not subject to Tort Immunity Act’s one-year statute of limitation) (citing
Raintree Homes, Inc. v. Village of Long Grove, 807 N.E.2d 439, 447 (Ill. 2004)). Regardless,
Illinois law gives Jones one year from the dismissal of her state claim in federal court on
jurisdictional grounds to refile that claim in state court. 735 ILCS 5/13-217; Davis v. Cook Cty.,
534 F.3d 650, 654 (7th Cir. 2008). Because the case is still in the pleading stage, the Court has
not yet expended substantial resources on Jones’ state claim. The Court also has not decided any
issue that is dispositive to Jones’ state claim.
Therefore, the Court declines to exercise
supplemental jurisdiction over Jones’ remaining state law retaliatory discharge claim brought
under Illinois common law.
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CONCLUSION
For the reasons stated above, the Court grants the Defendant’s Motion to Dismiss. (Dkt.
52). Counts I and II of the Plaintiff’s Second Amended Complaint are dismissed with prejudice.
The Court declines to exercise supplemental jurisdiction over Jones’ only remaining state claim
and, therefore, dismisses the state law claim for retaliatory discharge without prejudice.
____________________________________
Hon, Virginia M. Kendall
United States District Judge
Date: August 9, 2018
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