Scales v. Federal Express Corporation, Inc.

Filing 43

ORDER : Defendant's motion for summary judgment 31 is granted. This case is closed. [See STATEMENT] Signed by the Honorable Frederick J. Kapala on 1/24/2017. Mailed notice (jp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Corey Scales,
Plaintiff,
v.
FedEx Ground Package System, Inc.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No: 15 C 50038

Judge Frederick J. Kapala

ORDER
Defendant’s motion for summary judgment [31] is granted. This case is closed.
STATEMENT
Plaintiff, Corey Scales, has sued his former employer, FedEx Ground Package System, Inc.
(“FedEx”) alleging violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601
et seq. FedEx has moved for summary judgment. For the reasons that follow, the motion is granted.
I. FACTS1
Plaintiff began working at FedEx as a part-time package handler in October 2005. In January
2008, plaintiff was promoted to a part-time operations manager position requiring him to supervise
package handlers. Plaintiff reported to Sort Manager Tim Olexa, who in turn reported to Station
Senior Manager Jeremy Sword.
Throughout his employment, plaintiff was advised of and received training on: (1) the FedEx
Ground Acceptable Conduct Policy-010, which prohibits comments or communications that
reasonably could be viewed as discriminatory or that might constitute harassment or bullying; or that
disparage, belittle, or demean employees; and (2) the FedEx Ground Anti-Harassment &
Anti-Discrimination Policy-020, which prohibits harassment that creates a hostile, intimidating, or
offensive working environment and prohibits any act that creates the potential for harassment,
including sexual harassment or harassment based on any other protected characteristic as well as
inappropriate conduct that is harassing in nature but does not rise to the level of being unlawful.
Plaintiff’s personnel records include the following disciplinary history. On November 26,
2008, plaintiff received a written warning and counseling because he failed to conduct a yard check
and failed to ensure that a trailer was unloaded. In June 2010, package handler Jeff Heisler,

1

The facts are taken from the pleadings, the defendants’ statements of undisputed facts, plaintiff’s response
thereto, and the evidence submitted in support. The facts are undisputed unless otherwise indicated.

complained about plaintiff’s use of profanity towards him. During the investigation, plaintiff
admitted that he used inappropriate language and did not handle the situation appropriately. Sword
conducted a formal counseling session with plaintiff who “agreed with the corrective action steps
discussed with [Sword] and [to] make sure that future conversations with package handlers are
conducted in a professional and respectful manner.” On August 17, 2010, plaintiff received
performance counseling because he failed to conduct an accurate yard check to ensure all trailers
were unloaded.
On August 10, 2011, Heisler complained again about plaintiff’s temper and use of profanity.
In order to verify Heisler’s complaint, Sword spoke with other package handlers who confirmed that
plaintiff engaged in yelling and the use of profanity. Sword conducted a formal counseling session
and discussed the Acceptable Conduct Policy-010 with plaintiff. Plaintiff admitted that his
inappropriate behavior had to stop and he said he would work on managing his temper. Sword
advised plaintiff “that this and similar types of behavior would not be tolerated any longer and
another report of a similar incident could and likely would result in termination under [Acceptable
Conduct] Policy-010.”
On June 29, 2012, package handler Jessica Taylor called Laura O’Neal in Human Resources
(“HR”) and filed a report regarding inappropriate text messages from plaintiff.2 Taylor indicated that
she wished to resign from her position because she did not want to work in an environment where
she felt uncomfortable. O’Neal explained the Anti-Harassment and Anti-Discrimination Policy to
plaintiff and he admitted that he had in fact sent text messages to Taylor. However, he claimed he
was just trying to be friendly and to get to know her better. Plaintiff denied the purported content
of the text messages, but admitted that he had seen Taylor working and his messages commented on
how he admired what a hard worker she was. Plaintiff promised that he would be more mindful in
the future about any contact outside of work with package handlers. Plaintiff received a written
warning from Sword for violating the Anti-Harassment and Anti-Discrimination Policy-020.
Plaintiff was advised that his failure to comply with policy may result in disciplinary action up to and
including termination.
In September 2012, plaintiff received performance counseling because he failed to follow
proper procedures for a yard check. As a result of his actions, a trailer with packages still inside sat
in the station yard on September 27 and 28. On September 13, 2013, plaintiff received a written
warning because he failed to report for his scheduled shift and failed to properly inform his manager
or get approval for his absence. In September 2013, package handler Brianna Carroll reported that,
she had heard plaintiff call another package handler a “homo,” and that plaintiff said to him “go
ahead and go to HR, I dare you.” Carroll also indicated that plaintiff mocks people, talks behind
their backs, and that plaintiff had been asking her for her phone number. Carroll reported that
2

Taylor reported that she received a text message from plaintiff stating something like, “Guess Who?” Taylor
didn’t recognize the phone number and thinking it was one of her friends, responded: “My future baby daddy.” The reply
was: “Guess again, it’s Corey [Scales],” followed by: “If only I was that lucky. You have no idea how much I watch you
at work.” Taylor then responded: “That’s creepy.” Plaintiff replied: “Don’t look at it as creepy, I admire you.” Taylor
then advised plaintiff not to text her again. During his deposition, plaintiff admitted that he did text something to the
extent of “you have no idea how much I watch you at work and that [I] admire you,” and in response to Taylor’s text:
“is this my future baby daddy?” plaintiff admitted that he replied: “If only I was that lucky.”

2

plaintiff made comments to her like “you seem interesting, I bet you’re a real goody-goody,” “I want
to get to know you–the real you–outside of work.” When interviewed, plaintiff admitted to calling
a package handler a “homo,” and that he told Carroll to put her phone number in his phone, but he
claimed he was joking on both occasions. FedEx conducted interviews of other employees who
confirmed that plaintiff often called people “homos” behind their backs. As a result, it was
determined that plaintiff violated the Acceptable Conduct Policy-010 and the Anti-Harassment and
Anti-Discrimination Policy-020. Plaintiff was advised that “an inability on [his] behalf to modify
his behavior and conduct himself in a manner befitting that of a FedEx manager and/or any
confirmed future reported incidents of this nature will result in termination of his employment with
FedEx Ground.” Given plaintiff’s history of misconduct, he was also advised that he would be
placed on a Performance Improvement Plan (“PIP”).
On December 14, 2013, Olexa had a documented discussion with plaintiff due to his failure
to turn in required paperwork and advised that a PIP may be initiated. On December 27, 2013, Olexa
had a documented discussion with plaintiff due to his failure to properly scan packages which
resulted in a rating of “less than satisfactory service.”
On January 4, 2014, plaintiff was placed on a formal 90-day PIP focusing on improvement
in: 1) communication skills including listening, presenting and conversing with managers, package
handlers, and drivers; and 2) accountability including completing assigned duties promptly and with
proper follow up. It was specifically noted that plaintiff’s performance with respect to package
handler interaction was:
Less than expected or no communication with packager handlers on an individual
basis regarding individual package handler performance; Complaints of harassment
or hostile work environment for package handlers as documented in [his personnel
records] . . . ; and [i]nappropriate comments made about package handlers and
managers to others on dock and in office.
On January 18, 2014, Olexa had a documented discussion with plaintiff because he failed to
follow the proper procedure to make an adjustment to an employee’s time card which was a violation
of time-keeping policy and an integrity issue. On February 12, 2014, Olexa had a documented
discussion with plaintiff because he failed to inspect his assigned area, and after the delivery trucks
had already been dispatched for the day, 22 packages were left behind in his assigned area.
At the end of the 90-day PIP in April 2014, plaintiff had made improvements, however, it
was noted that plaintiff only did what was asked of him when he knew someone was watching him
and the majority of the improvement he showed occurred in the last 30 days, if not the last 15 days,
of the PIP. Consequently, a second 90-day PIP was initiated on April 15, 2014, to ensure plaintiff’s
improvements could be sustained.
In Olexa’s annual performance review of plaintiff for the fiscal year June 1, 2013 to May 31,
2014, he noted “[plaintiff] has put a lot of time and effort into improving himself and that he had
grown his skills and abilities,” and gave plaintiff an overall rating for the year at 2.92 out of 5. A
score of 3.00 means an employee has fully achieved results. Olexa noted significant improvements
by plaintiff in May and the first half of June 2014.

3

During his time as an operations manager, plaintiff was advised that he should direct all
FMLA inquiries by his package handlers to the toll-free telephone number for Aetna, FedEx’s
FMLA administrator. Moreover, after a package handler submitted a claim, Aetna would send an
email to plaintiff titled: “Preliminary Designation Notification,” and providing: “[Aetna] administers
leave for [FedEx Ground] under the [FMLA]; the package handler had notified Aetna of his/her need
to take leave; and Aetna advised the employee to have his/her health care provider to complete a
form and return it to Aetna by a specific deadline.”
According to plaintiff, he discussed his need for hip surgery and the length of time he would
be out of work with Olexa and Sword in June 2014. On June 7, 2014, plaintiff sent the following
email to Kirby Reinhardt in HR regarding medical leave:
My doctor has scheduled me for hip replacement surgery for Monday, July 7, 2014.
My doctor has advised me that the expected recovery time is 6 to 8 weeks, during
which time I will be unable to work. Please advise me what medical information is
required to be submitted by my doctor to FedEx regarding this matter.
From previous conversations with Laura O’Neal, I am aware that there are no shortterm medical benefits available to me because I am not a full-time employee of
FedEx; however, am I able to use unaccrued vacation time for the 2014 fiscal year?
If so, please advise how much I can use so I can determine if I want to use this
option.
Reinhardt responded on June 10, 2014, “Sorry for the delayed response. I had to research a bit. You
may schedule all your vacation (that you would accrue for FY15) to cover the time off during
recovery.” On June 11, 2014, plaintiff replied, “Thanks. What medical documentation needs to be
submitted by my doctor?” Reinhardt responded the same day, “You will need to call Aetna to
initiate an FMLA claim first. Please use the attached document.” The header on Reinhardt’s June
11, 2014 email clearly indicated there was an attachment identified as “Family and Medical Leave
Act Request.HMR-440.pdf.” On June 12, 2014, plaintiff replied, “Thanks for the info.”
At his deposition, plaintiff testified that he did not recall receiving a document attached to
Reinhardt’s email. Plaintiff testified that he did not call Aetna’s toll-free number that he had
previously given to his package handlers that inquired about FMLA because he was under the
assumption that the FMLA guidelines for package handlers were different than those for managers.
Plaintiff admitted that he did not even attempt to call Aetna to inquire if the same procedure applied
to managers. The FedEx Ground Family Medical Leave Act Request HMR-440 states: “In order to
initiate the FMLA eligibility and approval process, an employee must immediately contact FedEx
Ground’s third party administrator (Aetna) at 1-866-464-7686, option 9 or via the [HR] Portal”
(located on FedEx Ground’s intranet website).
On June 20, 2014, Sean O’Conner, in the FedEx Ground’s Contractor Relations Department,
received an anonymous letter regarding a number of issues at the Rockford station. Among other
things, the letter stated that package handlers were being cussed at, spoken down to, harassed, and
that “[o]ne manager likes to walk around and try to intimidate people” and “another manager thinks
they [sic] can go around and bully people to do things their way. This manager has been turned in
several times because of their [sic] attitude and the way they [sic] talk down to workers.”
4

Reinhardt initiated an investigation into the assertions in the anonymous letter on July 1,
2014. She interviewed a number of package handlers including Patrick Rand who reported that he
heard plaintiff call an Asian package handler “Slant Eyes,” and once plaintiff told Rand, “you should
probably go kill yourself,” but it was all in good fun. Gianna Tran reported that plaintiff refers to
her as “Egg Roll” because she is Asian. Sandra Hamilton reported that plaintiff calls people by their
ethnicities instead of their names such as “Hey Eggroll” and “Hey Slant Eyes.” Hamilton also said
that plaintiff calls Middle Eastern or Indian employees “Hey Abeb” and “Hey Hodgie,” and he
“swears all the time at package handlers.” Reinhardt found that plaintiff violated the Acceptable
Conduct Policy-010 by calling package handlers ethnically derogatory names; cussing at the package
handlers he supervised; and telling a package handler to go kill himself. Reinhardt also found that
another operations manager, Davaki Redmon, cussed but did not direct it at package handlers and
the package handlers reporting to her did not feel bullied. Reinhardt found that Redmon violated
the Acceptable Conduct Policy-010 and proposed that a Documented Discussion be held with
Redmon.
Reinhardt conducted further interviews on July 1, 2014, based upon an email she received
from Redmon concerning plaintiff’s actions. Redmon reported that Rachel Miller-Larson indicated
that when she was a package handler, plaintiff flirted with her and asked her out on dates which
made her very uncomfortable. Miller-Larson also witnessed plaintiff touching Tran and
inappropriate closeness between plaintiff and Tran. Miller-Larson said that plaintiff called a package
handler of Indian decent “Abeb” and another “Hodgie,” and she heard plaintiff tell Rand to “go kill
himself.” Miller-Larson also advised that it was rumored among employees that plaintiff and Tran
were in a sexual relationship and that plaintiff gave Tran money. Tran denied any sexual or
inappropriate relationship with plaintiff, that plaintiff had inappropriately touched her, flirted with
her, sent her inappropriate texts, or gave her money. Tran acknowledged, however, that she
communicated with plaintiff outside of work, but only about work topics.
When Sword and O’Neal interviewed plaintiff on July 1, 2014, plaintiff admitted calling Tran
“Egg Roll” because Tran stated that she had been called that at her previous job. He denied any sort
of relationship with Tran, touching her, or giving her money, and denied telling Rand to “go kill
himself” and flirting with Miller-Larson. Plaintiff was put on paid suspension on July 1, 2014,
pending the final outcome of the investigation. Olexa spent a good deal of time instructing plaintiff
during his PIP and never observed any inappropriate interaction between plaintiff and the package
handlers.
Based on the entire investigation, Reinhardt determined that she could not substantiate that
plaintiff had a sexual relationship with Tran, gave her money, or inappropriate actions with respect
to Miller-Larson. However, there was sufficient corroboration that plaintiff touched Tran
inappropriately and communicated with her outside of work, that he called package handlers by
ethnically derogatory names, and that he told Rand to “go kill himself.” As a result, Reinhardt
concluded that plaintiff had violated the Acceptable Conduct Policy-010 and the Anti-Harassment
and Anti-Discrimination Policy-020, and she submitted him for termination review.
Reinhardt’s investigation was reviewed by her manager, the Corporate Case Manager, the
Regional Managing Director of Operations, and the FedEx Legal Department. There were no
objections made during plaintiff’s termination review process, and at the conclusion of the process
5

Sword made the decision to terminate plaintiff. Sword phoned plaintiff on July 29, 2014, and
advised him of his termination due to misconduct. Plaintiff had his hip surgery the day before on
July 28, 2014.
In his first amended complaint, plaintiff brings a claim for “compensatory damages under the
FMLA” alleging that he informed Sword and Olexa that he would be having hip surgery in July
2014, and he had an entitlement to leave under the FMLA. Plaintiff alleges further that by placing
him on administrative suspension and then terminating him, FedEx deprived him of leave in
violation of the FMLA. In more detail, plaintiff claimed during his deposition that part of the reason
he was terminated was because Sword was upset that he was going to be off of work for 6-8 weeks
and this would have a negative impact. Additionally, plaintiff claims he would not have been
available to do the pre-planning for the peak holiday season. However, plaintiff admitted that he
would have been back at work for the peak season itself which begins the week after the
Thanksgiving holiday.
II. ANALYSIS
Summary judgment is proper when “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A genuine issue of material fact exists and summary judgment is inappropriate if there is sufficient
evidence for a jury to return a verdict for the nonmoving party. Springer v. Durflinger, 518 F.3d 479,
483 (7th Cir. 2008). Summary judgment is mandated, “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). For the purposes of a motion for summary
judgment, the court must look at the evidence in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The FMLA prohibits “interfere[nce]” with the exercise of FMLA rights, 29 U.S.C.
§ 2615(a)(1), “discriminat[ion] against any individual for opposing any practice made unlawful by
this subchapter,” id. § 2615(a)(2), and “discriminat[ion] against any individual because such
individual–(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under
or related to this subchapter; (2) has given, or is about to give, any information in connection with
any inquiry or proceeding relating to any right provided under this subchapter; or (3) has testified,
or is about to testify, in any inquiry or proceeding relating to any right provided under this
subchapter,” id. § 2615(b). Despite the textual references to discrimination, the courts have
generally characterized the two types of FMLA claims as interference and retaliation. See Pagel v.
TIN Inc., 695 F.3d 622, 626 (7th Cir. 2012) (“Employers are prohibited from both interfering with
and retaliating against an employee’s use or attempted use of FMLA leave.”(citations omitted)); see
also Shaffer v. Am. Med. Ass’n, 662 F.3d 439, 443 (7th Cir. 2011) (“There are two types of FMLA
claims, those for interference and those for retaliation.”).
A. FMLA Interference
“The burden to prove FMLA interference lies with the plaintiff-employee.” Simpson v.
Office of Chief Judge of Circuit Court of Will Cty., 559 F.3d 706, 712 (7th Cir. 2009). To survive
summary judgment on his FMLA interference claim, plaintiff must identify evidence creating a
6

genuine dispute of material fact that: “(1) he was eligible for the FMLA protections; (2) his employer
was covered by FMLA; (3) he was entitled to take leave under FMLA; (4) he provided sufficient
notice of his intent to take leave; and (5) his employer denied him FMLA benefits to which he was
entitled.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 223 (7th Cir. 2015) (alterations
omitted)). FedEx argues that plaintiff has not done so with regard to the fifth element because he
cannot show that he was denied FMLA leave to which he was entitled as he never initiated a FMLA
claim. The court agrees.
At the summary judgment stage, plaintiff must raise a genuine issue of material fact regarding
his entitlement to FMLA leave. Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008).
An employee does not become entitled to FMLA leave until and unless he follows claims
procedures. 29 C.F.R. § 825.302(d) (“An employer may require an employee to comply with the
employer’s usual and customary notice and procedural requirements for requesting leave, absent
unusual circumstances.”). An employee’s failure to comply with his employer’s internal leave
policies and procedures forecloses an FMLA claim. Nicholson v. Pulte Homes Corp., 690 F.3d 819,
825 (7th Cir. 2012); Brown v. Auto. Components Holdings, LLC, 622 F.3d 685, 690-91 (7th Cir.
2010).
In this case, it is undisputed that plaintiff never contacted Aetna, FedEx’s third party FMLA
administrator, in order to initiate the FMLA eligibility and approval process as the FedEx policy
requires. Moreover, there is no evidence in the record before the court that FedEx interfered with
any attempt by plaintiff to request FMLA leave. On the contrary, the only evidence is that on June
7, 2014, plaintiff notified HR about his upcoming hip replacement surgery and on June 10 & 11
Reinhardt gave him instructions on how to request medical leave. The anonymous letter was
received almost two weeks later on June 20, 2014, the investigation leading to plaintiff’s suspension
did not occur until July 1, 2014, and plaintiff was not terminated until July 29, 2014. Consequently,
there was ample time to make an FMLA claim if that was really what plaintiff wanted to do and no
evidence that FedEx interfered with plaintiff’s ability to do so.
Plaintiff claims that he “did not recall” receiving the Aetna FMLA leave request form that
was attached to Reinhardt’s June 11, 2014 email. However, the only evidence is that plaintiff
responded to that email, which expressly referenced the attachment in both the email’s header and
in its text, by writing “Thanks for the info.” Nevertheless, there is evidence in the record that
plaintiff was well aware of the procedures for initiating and substantiating a claim for FMLA leave
through Aetna. It is undisputed that, as an operations manager, plaintiff was responsible for directing
FMLA inquiries by the package handlers he supervised to Aetna’s toll-free number. It is also
undisputed that when one of his package handlers submitted an FMLA claim to Aetna, plaintiff
would receive an email from Aetna indicating, among other things, that the package handler was
advised that his or her health care provider needed to complete a form and return it to Aetna by a
specific deadline.
Plaintiff testified that he thought there was a different procedure for managers to initiate and
substantiate FMLA claims than there was for package handlers. However, plaintiff failed to explain
why he so thought. Nevertheless, even if it is true that plaintiff did not recall getting the attachment
to the email and truly thought that managers followed a different procedure for requesting FMLA,
plaintiff does not deny that Reinhardt told him he needed to initiate the claim with Aetna and
7

defendant’s own words demonstrate his understanding that he would need to provide some
information from his doctor in order to substantiate his requested medical leave. See 29 U.S.C.
§ 2613(a) (providing that the FMLA permits an employer to require that a request for leave due to
a serious health condition be supported by certification issued by the health care provider of the
employee). Despite this understanding, it is undisputed that defendant never provided any medical
information and made no effort to request medical leave. Under these circumstances, FedEx had no
way of verifying that plaintiff actually needed hip replacement surgery, when the surgery would take
place, or how long plaintiff would need to be absent from work in order to recover. For these
reasons, there is no genuine issue of material fact as to whether FedEx denied plaintiff FMLA
benefits to which he was entitled. Therefore, FedEx is granted summary judgment on plaintiff’s
FMLA interference claim.
B. FMLA Retaliation
The FMLA provides that it is unlawful for any person to “discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful” by the FMLA.
29 U.S.C. § 2615(a)(2). To sustain a FMLA retaliation claim, plaintiff must show “(1) he engaged
in a protected activity; (2) his employer took an adverse employment action against him; and (3)
there is a causal connection between the protected activity and the adverse employment action.”
Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012). Claims of discriminatory/retaliatory discharge
under the FMLA are analyzed in the same manner as retaliatory discharge claims under other
employment statutes, such as Title VII and the ADA. See Buie v. Quad/Graphics, Inc., 366 F.3d
496, 503 (7th Cir. 2004).
The parties frame their arguments around the direct and indirect methods of proof. However,
the Seventh Circuit in Ortiz v. Werner Enterprises, Inc., has instructed “that district courts must stop
separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal
standards.” 834 F.3d 760, 765 (7th Cir. 2016). The court in Ortiz made clear, however, that:
The burden-shifting framework created by McDonnell Douglas Corp. v. Green
sometimes is referred to as an indirect means of proving employment discrimination.
Today’s decision does not concern McDonnell Douglas or any other burden-shifting
framework, no matter what it is called as a shorthand. We are instead concerned
about the proposition that evidence must be sorted into different piles, labeled
“direct” and “indirect,” that are evaluated differently. Instead, all evidence belongs
in a single pile and must be evaluated as a whole.
Id. at 766 (citation omitted). Thus, the “legal standard . . . is simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s [inquiry about taking FMLA leave]
caused the discharge.” Id. at 765.
FedEx argues that plaintiff has presented insufficient evidence to establish a genuine issue
of material fact that there was a causal connection between his FMLA inquiry and the termination
of his employment. In response, plaintiff argues that the record evidence clearly establishes a causal
connection:
Plaintiff advised FedEx of his impending surgery formally by email to Reinhardt on
8

June 7, 2014. An anonymous letter comes into FedEx Ground Contractor Relations
Department concerning treatment of package handlers at the Rockford station. An
investigation is conducted on July 1, 2014 that results in the charges leading to the
Plaintiff’s discharge. Plaintiff was at the end of a PIP that started at 90 days and was
extended by an additional 90 days. His supervisor, who had been closely observing
Plaintiff during the PIP, had not observed any of the conduct Reinhardt substantiated
after her investigation on July 1, 2014. Finally, Olexa, Plaintiff’s immediate
supervisor, who was monitoring the Plaintiff during the disciplinary, was not
interviewed during the July 1, 2014 investigation and his input was not sought as to
whether to discharge Plaintiff.
FedEx, perhaps out of an abundance of caution, gleans a suspicious-timing argument from this
paragraph. The court does not find such an argument to be adequately advanced but, in any event,
the Seventh Circuit has made clear that “temporal proximity between an employee’s protected
activity and an adverse employment action is rarely sufficient to show that the former caused the
latter.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011); see also Harden v.
Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 862 (7th Cir. 2015) (“Temporal proximity between an
employee’s protected activity and an adverse employment action is rarely enough to show
causation.”). Nevertheless, the timing of plaintiff’s termination in this case is not suspicious because
plaintiff was nearing the end of his second 90-day PIP–due to a disciplinary history going back to
2010 for using profanity at package handlers, inappropriate communications with female package
handlers, and calling package handlers by offensive names such as “homo”–when he inquired about
FMLA medical leave on June 7, 2014. The July 1, 2014, investigation into the claims asserted in
the June 20, 2014 anonymous letter only provided evidence that plaintiff’s performance was not
improving despite the PIP. Instead, it is undisputed that the investigation revealed that plaintiff was
calling Asian package handlers “Slant Eyes” and “Egg Roll,” Middle Eastern package handlers
“Abeb” and “Hodgie,” and continued to flirt with one female package handler and had now began
to inappropriately touch another. Although plaintiff’s FMLA inquiry and his termination were less
than two months apart, the undisputed evidence of plaintiff’s long history of misconduct and
continued misconduct during his PIPs would not permit a reasonable jury to find a causal connection
between plaintiff’s FMLA activity and FedEx’s decision to terminate his employment. See Buie,
366 F.3d at 509 (“[G]iven Buie’s myriad problems at work, a reasonable jury could not conclude
from timing alone that Quad/Graphics suspended or fired Buie because of his announcement that he
had AIDS and, implicitly, because he would thus be requesting benefits under the FMLA.”).
Plaintiff asks: “[i]f the Plaintiff was using ethnically derogatory names on the dock wouldn’t
Tim Olexa have observed that at least once during his intense observation of the Plaintiff from
January through June 2014?” The obvious answer is, not necessarily. In fact, it is not surprising that
Olexa did not observe any misconduct because plaintiff would no doubt avoid using racially
derogatory names and engaging in other inappropriate behavior in the presence of a supervisor while
under a PIP. In any event, Olexa’s lack of observation of plaintiff’s misconduct is not evidence that
plaintiff’s termination was causally connected to his FMLA inquiry because that circumstance does
not eliminate the evidence of plaintiff’s on-going misconduct that was revealed during Reinhardt’s
July 1, 2014 investigation of the anonymous letter. Nor does the fact that Olexa was not interviewed
on July 1, 2014, call into question the misconduct reported that day by various package handlers.
9

It is undisputed that package handlers reported misconduct on plaintiff’s part that was in violation
of the FedEx Ground Acceptable Conduct Policy and the FedEx Ground Anti-Harassment &
Anti-Discrimination Policy which constituted grounds for his termination. It is undisputed that
plaintiff even admitted to calling Tran “Egg Roll” during the July 1, 2014 investigation.
Finally, in apparent recognition of the still-intact burden-shifting method of proving
causation, plaintiff argues that FedEx has offered no evidence that plaintiff would have been
terminated regardless of any retaliatory motive. The court disagrees. The evidence does not even
support a prima facie case of FMLA retaliation but, assuming for the sake of argument that it did,
there is ample evidence of plaintiff’s misconduct warranting the decision to terminate his
employment and insufficient evidence that the reasons given, plaintiff’s violation of FedEx’s
Acceptable Conduct Policy and FedEx’s Anti-Harassment and Anti-Discrimination Policy, were
pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973). Because
plaintiff has failed to advance sufficient evidence that would permit a reasonable factfinder to
conclude that there was a causal connection between the termination of plaintiff’s employment and
his inquiry about taking FMLA leave, summary judgment for FedEx on plaintiff’s FMLA retaliation
claim is also appropriate.
III. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted.

Date: 1/24/2017

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

10