Ballard v. US Steel Corp et al
OPINION AND ORDER GRANTING 74 MOTION for Summary Judgment by Defendants William Dittrich, Matt Eldridge, United States Steel Corporation. The Final Pretrial Conference set for 8/21/2015 and the Jury Trial set for 9/21/2015 are VACATED. Clerk DIRECTED to enter judgment in favor of Defendants William Dittrich, Matt Eldridge and United States Steel Corporation and against Plaintiff Deborah D Ballard. Signed by Magistrate Judge Paul R Cherry on 8/17/15. (cc: Deborah D Ballard). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DEBORAH D. BALLARD,
UNITED STATES STEEL CORPORATION,
WILLIAM DITTRICH, and MATT ELDRIDGE,
CAUSE NO.: 2:12-CV-315-PRC
OPINION AND ORDER
This matter is before the Court on a Motion of Defendants, United States Steel Corporation,
William Dittrich, and Matt Eldridge for Summary Judgment [DE 74], filed on April 20, 2015.
Because Plaintiff Deborah Ballard cannot demonstrate that she qualified for FMLA leave in May
2011 and because she cannot show that her employment was terminated in May 2011 for any reason
other than her violation of the Last Chance Agreement, the Court grants the motion.
On August 7, 2012, Plaintiff, Deborah D. Ballard filed, pro se, an employment
discrimination complaint against United States Steel Corporation (“U.S. Steel”) and several of its
employees–William Dittrich, Matt Eldridge, and Greg Tokwitz. The Complaint alleged that
Defendants violated her equal rights under 42 U.S.C. § 1981. Ballard then retained counsel who filed
an Amended Verified Complaint on October 10, 2012, against U.S. Steel, Dittrich, Eldridge, and
Richard Baetz. The Amended Complaint dropped Greg Tokwitz as a defendant and brought claims
only under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.
On April 1, 2013, Ballard filed a Motion for Leave to File Second Amended Complaint
against all Defendants, attaching a copy of the proposed Second Amended Complaint. Each of the
four Defendants filed an Answer to the Second Amended Complaint on April 18, 2013, in which
they denied any violation of the FMLA occurred. On April 23, 2013, the Court granted Ballard’s
motion and ordered her to file the Second Amended Complaint upon receipt of the Order. Ballard
did not do so. However, on August 17, 2015, the Court directed the Clerk of Court to docket the
Second Amended Complaint as of April 23, 2013.
On October 1, 2013, the parties filed a stipulation of dismissal, dismissing with prejudice
only Defendant Baetz.
On April 21, 2014, Ballard’s counsel filed a Motion for Leave to Withdraw Appearance, and
the following day the motion was granted. Ballard has since been proceeding pro se.
On April 20, 2015, Defendants filed the instant Motion for Summary Judgment, a
memorandum in support, designated evidence, and a Notice to Pro Se Party of Summary Judgment
Motion, all of which were served on Ballard. Ballard did not file a response, and the time to do so
On February 25, 2015, the parties agreed orally to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be
granted “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). Rule 56 further requires the entry
of summary judgment, after adequate time for discovery, 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) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is appropriate—in fact, is
mandated—where there are no disputed issues of material fact and the movant must prevail as a
matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’–that
is, pointing out to the district court–that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof
at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus.,
Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254,
1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary
judgment with affidavits or other materials, and, if the moving party has “produced sufficient
evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts
to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill
Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s
Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)
provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting
materials–including the facts considered undisputed–show that the movant is entitled to it . . . .” Fed.
R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,” but must “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)).
In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
Ballard began working at U.S. Steel on December 2, 1996. She was a bargaining unit
employee represented by United Steelworker’s Union. The Union has a collective bargaining
agreement with U.S. Steel called a Basic Labor Agreement (“BLA”). Article 5, Section J of the BLA
provides that U.S. Steel “retains the exclusive rights to manage the business and Plants and to direct
the working forces.” (Def. Ex. 11, p.11 (Bates USS000096)). These rights include the right to hire,
suspend, or discharge for proper cause.
In April 2011, Ballard was working as a craneman at the Number 2 Caster. As a craneman,
Ballard worked as part of a five-person crew that consisted of two crane operators and three
shippers. Ballard was classified as a Labor Grade 2 Utility Technician. The job description for a
Grade 2 Utility Technician required the individual, among other things, to inspect and perform
maintenance on all associated equipment. Part of the job duties for this position included
housekeeping and maintenance, which included sweeping.
From April 18, 2010, through April 16, 2011, Ballard worked a total of 836.5 hours.
The BLA contains the following provision regarding the FMLA:
The Company shall comply with the Family Medical Leave Act of 1993 (FMLA)
and further agrees to the following regarding Employee eligibility and entitlement.
Nothing in this Section shall be construed to provide lesser treatment than that
required under the FMLA or to deprive any Employee of any right or forum
2. Eligibility and Entitlement
a. Leave under this Section shall be available to any Employee who
has twelve (12) months or more of continuous Service calculated
pursuant to the Seniority provisions of this Agreement. There shall
be no hours-worked requirement for eligibility.
(Def. Br., Ex. 11, p. 12-13 (Bates USS000155-56)).
In 2009 and 2010, Ballard sought and obtained intermittent leave to take care of her mother.
There was never a time when Ballard was denied FMLA leave to take care of her mother. Ballard
did not ask for leave under the BLA as a result of any of her own claimed medical conditions or
An employee who calls off work must do so two hours prior to her scheduled shift and must
indicate why she is calling off. This also applies to individuals calling off in connection with leave
under the BLA; the employee must indicate that she is taking time off in accordance with the leave
policy. Ballard used the absentee procedure numerous times throughout her employment at U.S.
During the time Ballard was taking intermittent leave under the BLA, when Ballard called
off work for intermittent leave or any other reason, another employee would have to work a double
shift, up to 16 hours, or other employees would have to be called in to cover her shift. As a result
of complaints and the disruption caused by the absences, Defendants switched Ballard to the day
shift and assigned her housekeeping duties, including sweeping, which were a part of her job duties
as a Labor Grade 2 Utility Technician. This change in duties occurred approximately in May or June
2010, and lasted for approximately five months. By assigning Ballard to a non-operating task, her
absences would not adversely affect Defendants’ operations or other employees. Defendants were
able to schedule other employees’ overtime, and the employees did not have to worry about getting
held over for an extra shift unexpectedly. During the time that she was on the day shift performing
maintenance and housekeeping, Ballard did not receive any decrease in salary and she maintained
her position as a Labor Grade 2 Utility Technician.
On February 9, 2011, when Ballard was visiting the Plant medical office for an evaluation,
Dr. Tokowitz, the Plant Medical Director for U.S. Steel, smelled alcohol on her breath. Subsequent
medical testing confirmed the presence of alcohol and a search of her vehicle revealed the presence
of alcoholic beverages. U.S. Steel’s policy prohibits alcohol from being brought onto the property
and does not permit anyone onto its property who is under the influence of alcohol. Ballard was
aware of the policy. That same date, Ballard was issued a suspension for her alcohol related
offenses, and Ballard ultimately agreed to a Last Chance Agreement (“LCA”) that would be in effect
for three years.
The LCA contained specific instructions as to how Ballard was to call off from work and
what documentation she was to provide. All future absences or late arrivals needed to be reported
at least two hours prior to the time she was scheduled to work. When such instances arose,
management would make a determination on a case-by-case basis whether the absence was justified.
If an illness or injury occurred, Ballard agreed as part of her LCA to provide a note from a qualified
physician listing the dates of treatment and a statement indicating that she was totally disabled and
could not work on the date(s) absent. Failure to comply with these provisions would result in a fiveday suspension subject to discharge. By her signature on the LCA, Ballard acknowledged that she
had read and understood the LCA and voluntarily signed the LCA with knowledge of the nature and
consequence of it.
Ballard called off work for multiple days in April 2011. Specifically, on April 15, 2011, at
6:22 p.m., Ballard called off work for her April 16, 2011, 11:00 p.m. to 7:00 a.m. shift.1 On April
16, 2011, at 10:09 a.m., Ballard called off work for her April 17 and 18, 2011, 11:00 PM to 7:00 AM
The 11:00 p.m. to 7:00 a.m. shift begins on the preceding day. For example, the April 18, 2011, 11:00 p.m. to 7:00
a.m. shift began at 11:00 p.m. on April 17 and ended at 7:00 a.m. on April 18.
shifts. At that time, she reported to her supervisor that she had a sinus infection and that her
physician would not be in until Monday. Ballard was scheduled to work the 3:00 p.m. to 11:00 p.m.
shift on April 18, 2011; she failed to call off work for this shift. At 4:28 p.m. on April 18, 2011,
Ballard called off work for her 11:00 p.m. to 7:00 a.m. April 19, 2011 shift.
Ballard provided documentation from a physician regarding her absences on April 16
through April 18, 2011. However, Defendants concluded that the documentation provided was
inconsistent and not credible. Defendants also determined that none of the documentation
established that Ballard was totally disabled and could not work.
As a result of her absences on April 16, 17, and 18, 2011, Ballard was suspended for
violating her LCA, and, ultimately, her employment was terminated. Ballard’s union filed three
grievances associated with her April 2011 discipline and discharge. On April 27, 2011, after a factfinding hearing, Ballard’s suspensions were converted to discharge effective May 2, 2011. Ballard’s
grievances proceeded through multiple steps, and at each step her discipline and discharge were
upheld. The Union withdrew its grievances before the grievance process was completed.
The decision of whether an employee violates the terms of an LCA is made by the Labor
Relations Department. That department also holds the final authority to discharge an employee. In
an Affidavit filed in support of the instant motion, the Labor Department’s Manager, Laura Kocel,
stated that the fact that Ballard had obtained intermittent leave under the BLA in the preceding years
to take care of her mother did not play any role in the decision to discipline her as a result of her
April 2011 absences. Kocel also states that she was unaware of any other employees who, at the time
of Ballard’s termination, had failed to follow the protocol for reporting off and who were not found
to be in violation of their LCAs. This included Michael J. Lopez who Ballard identified as a
comparator. Lopez, who was placed on an LCA after receiving discipline for absenteeism, was not
later terminated for violating his LCA because he had received his supervisor’s permission to take
an emergency vacation and, therefore, his subsequent absences were justified.
Ballard’s Second Amended Complaint includes two counts. In Count I, Ballard alleges she
was unlawfully discharged in April 2011 by Defendants in violation of the FMLA. In Count II,
Ballard alleges that she was punished for taking FMLA to care for her mother in 2010 when she was
removed from her position as a craneman and given housekeeping duties on the day shift and that
she was later retaliated against for filing a grievance about the change in duties when she was made
to enter into the Last Chance Agreement and her employment was eventually terminated. The Court
considers each count in turn.
In her Second Amended Complaint, Ballard alleges that she was employed by U.S. Steel for
a time period in excess of twelve months before April 16, 2011, that she worked over 1,250 hours
during those twelve months, and, therefore, that she was an eligible employee under FMLA. Ballard
alleges that, during this time, she was receiving treatment for various medical conditions and that
on April 18, 2011, she gave notice of her need for FMLA leave when she asked Eldridge to place
her on “will call” status. However, Defendants offer evidence that Ballard was not an eligible
employee under the FMLA because she worked less than 1,250 hours in the year preceding April
16, 2011. Defendants also offer evidence that her absences on April 16, 17, and 18, 2011, were not
excused and, thus, were a violation of her Last Chance Agreement (“LCA”).
The Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. (“FMLA”) guarantees
eligible employees twelve weeks of leave to take care of a child, spouse, or parent with a serious
health condition or “because of a serious health condition that makes the employee unable to
perform the functions of the employee’s position.” 29 U.S.C. § 2612(a)(1). An employer is
prohibited from interfering with the exercise of or the attempt to exercise any right under the FMLA.
Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citing James v. Hyatt
Regency Chi., 707 F.3d 775, 780 (7th Cir. 2013) (citing 29 U.S.C. § 2615(a)(1))). It is also unlawful
for an employer to retaliate against an employee who exercises or attempts to exercise FMLA rights.
Id. (citing 29 U.S.C. § 2516(a)(2)).
To prevail on an FMLA interference claim, Ballard must “demonstrate that: (1) she was
eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to
FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) her employer
denied her benefits to which she was entitled.” Brown v. Auto. Components Holding, LLC, 622 F.3d
685, 689 (7th Cir. 2010) (citing Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009)).
An “eligible employee” is defined by the statute as “an employee who has been employed
. . . for at least twelve months by the employer” and who has “at least 1,250 hours of service with
such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). “This is a bright line
requirement with no ‘close enough’ exception.” Weidener v. Unity Health Plans Ins. Co., 606 F.
Supp. 2d 949, 958 (W.D. Wis. 2009) (citing Pirant v. United States Postal Serv., 542 F.3d 202, 206
(7th Cir. 2008)). When calculating the number of hours that an employee has worked to determine
eligibility under the FMLA, courts look to the legal standards of the Fair Labor Standards Act. See
29 U.S.C. § 2611(2)(C) (citing 29 U.S.C. § 207).
Thus, in order for Ballard to establish her claim for interference under the FMLA related to
her termination, she must prove that she was an “eligible employee” by showing that she worked
1,250 hours from April 18, 2010, through April 16, 2011. Ballard cannot make this showing because
her pay stubs indicate that she only worked a total of 836.5 hours. Ballard does not dispute the
accuracy of the pay stubs nor does she argue that she worked hours that are unaccounted for. In
Pirant, the court refused to extend FMLA coverage to an employee who fell short of the 1,250 hour
requirement by .2 and 1.2 hours, reasoning that “the statutory text is perfectly clear . . . . The right
of family leave is conferred only on employees who have worked at least 1,250 hours in the previous
12 months.” 542 F.3d at 206 (emphasis in original) (quoting Dormeyer v. Comerica Bank-Ill., 223
F.3d 579, 582 (7th Cir. 2000)). Here, Ballard is more than 400 hours short of the requirement, is not
an “eligible employee” as defined by the FMLA, and cannot maintain her interference claim based
on her termination in April 2011. Accordingly, Defendants’ request for summary judgment on
Ballard’s interference claim in Count I is granted.
Defendants also argue that Ballard was not “entitled” to FMLA leave because she cannot
demonstrate that she suffered from a “serious health condition” that prevented her from fulfilling
the functions of her job. See 29 U.S.C. § 2612(a)(1)(E). The FMLA defines an employee with a
“serious health condition” as one who has “an illness, injury, impairment, or physical or mental
condition that involves--(A) inpatient care in a hospital, hospice, or residential medical care facility;
or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). An employee “must
demonstrate by a preponderance of evidence that he is entitled to the disputed leave.” Haefling v.
United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999). Because Ballard was not eligible for
FMLA leave, the Court need not determine whether Ballard was entitled to FMLA leave because
of a serious health condition.
In Count II, Ballard alleges that, when she took intermittent FMLA leave to care for her
mother in 2010, Defendants removed Ballard from her duties as a craneman and ordered her to
sweep the floors as a punishment for taking FMLA leave, that Ballard filed a grievance with U.S.
Steel’s Civil Rights Committee complaining about the harassment, that a hearing was held, that
shortly thereafter Ballard was placed back on the crane, and that Baetz continued to harass Ballard,
telling her to put her mother in a nursing home. Ballard further alleges that, in February 2011,
Ballard was suspended from her employment for five days and offered a Last Chance Agreement
(“LCA”) and that in May 2011, Ballard was terminated for violating the LCA. Thus, it appears that
Ballard is alleging that her termination in May 2011 was in retaliation for complaining about the
change in her job duties in 2010.
The FMLA makes it unlawful to “discharge or in any other matter discriminate against any
individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2); see
also 29 C.F.R. § 825.220(a). In addition, an employer is prohibited from “discriminating or
retaliating against an employee or prospective employee for having exercised or attempted to
exercise FMLA rights.” 29 C.F.R. § 825.220(c). “In other words, the employer cannot use an
employee’s use of FMLA leave as a negative factor in promotion, termination, and other
employment decisions.” James v. Hyatt Regency Chi., 707 F.3d 775, 781 (7th Cir. 2013). An FMLA
retaliation claim can proceed under either the direct or indirect method of proof. Id. Under both
methods, the plaintiff must present evidence that a materially adverse action was taken by her
employer. Id. (citing Daugherty v. Wabash Center Inc., 577 F.3d 747, 751 (7th Cir. 2009); Simpson
v. Office of Chief Judge of Circuit Ct. of Will Cnty., 559 F.3d 706, 718 (7th Cir. 2009)).
First, to the extent Ballard is alleging that her reassignment to housekeeping duties during
the intermittent leave to care for her mother in 2010 is an adverse employment action, her claim
fails. Under 29 U.S.C. § 2612(b)(2), an employer may require an employee needing intermittent
leave “to transfer temporarily to an available alternative position offered by the employer for which
the employee is qualified.” Such transfers are permissible when that position “has equivalent pay
and benefits” and “better accommodates recurring periods of leave than the regular employment
position of the employee.” Id. Moreover, the alternative position “does not need to have equivalent
duties,” so long as the pay and benefits are equivalent. 29 C.F.R. § 825.204(c); see also James, 707
F.3d at 782 (describing an adverse employment action that is “materially adverse” as “more
disruptive than mere inconvenience or an alteration of job responsibilities” (quotation marks and
Defendants have offered evidence that Ballard’s intermittent leave to care for her mother
caused problems when she worked rotating night shifts because other employees were required to
work unplanned longer hours or a double shift due to her absences. The evidence shows that her
frequent call-offs were causing morale problems with her coworkers who could not rely on her
scheduled attendance. Ballard was switched to the day shift and was assigned housekeeping duties,
including sweeping, which had always been a part of her job duties as a Labor Grade 2 Utility
Technician. By assigning Ballard to non-operating tasks, such as housekeeping, her absences did
not adversely affect operations or other employees. Ballard was paid the same amount that she was
earning as a craneman. Throughout Ballard’s time in the alternative position, her salary and position
remained the same. The change in duties lasted approximately five months. Ballard acknowledged
that she was never denied FMLA leave to care for her mother. Therefore, the change in her duties
during her intermittent leave in 2010 does not constitute retaliation.
Second, to the extent Ballard is alleging in Count II that she was required to sign the LCA
and was ultimately terminated under the LCA in retaliation for filing a grievance about her
reassignment of job duties in 2010, Ballard cannot survive summary judgment under either the direct
or indirect method because she has offered no evidence of a causal connection between her
grievance and/or prior intermittent leave and the decision to terminate her in May 2011 for violating
To establish a prima facie case for retaliatory discharge under the direct method, Ballard
must establish that: (1) she engaged in protected activity; (2) she suffered an adverse employment
action; and (3) there is a causal connection between the two. Carter v. Chi. State Univ., 778 F.3d
651, 657 (7th Cir. 2015) (citing Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009)). Under the
direct method, “proof of discrimination is not limited to near-admissions by the employer that his
decisions were based on a prescribed criterion, but rather, includes circumstantial evidence which
suggests discrimination albeit through a longer chain of inferences.” Cracco v. Vitran Express, Inc.,
559 F.3d 625, 633 (7th Cir. 2009) (internal quotes omitted) (quoting Luks v. Baxter Healthcare
Corp., 467 F.3d 1049, 1052 (7th Cir. 2006)).
Defendants have offered evidence that Ballard accepted the LCA in January 2011 after she
presented to the Plant medical office for an evaluation and tested positive for alcohol and alcoholic
beverages were discovered in her vehicle, both of which were against U.S. Steel policy. Ballard
offers no evidence to dispute the reason she entered into the LCA. Subsequently, Ballard was fired
in May 2011 for violating the LCA in April 2011, as set forth above. Ballard offers no evidence to
create any inference that her termination in May 2011 was for any reason other than her violation
of the LCA.
Under the indirect method, Ballard may create a presumption of discrimination by
establishing a prima facie case of discrimination. Cracco, 559 F.3d at 634-35. To do so, Ballard
must demonstrate that (1) she engaged in statutorily protected activity; (2) she met her employer’s
legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less
favorably than similarly situated employees who did not engage in statutorily protected activity. Id.
(citing Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 849-50 (7th Cir. 2008)). This
presumption shifts the burden to Defendants to produce a legitimate, non-discriminatory reason for
their actions. Id. at 635 (citing Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008)). If Defendants
satisfy their burden of production, the burden then shifts back to Ballard to show that Defendants’
reason is false and only a pretext for discrimination. Id.
As for the first prong, Ballard alleges that she was retaliated against for filing the grievance
regarding her change in job duties in 2010. However, because the change in job duties in 2010 was
not a violation of the FMLA, Ballard’s grievance was not in opposition to “any practice made
unlawful by this subchapter.” See 29 U.S.C. § 2615(a)(2). Nevertheless, for purposes of this
analysis, the Court will assume, without finding, that Ballard could show that she “reasonably
believed” that the change in job duties was a violation of the FMLA such that she could establish
the first prong of the prima facia test. See Tate v. Executive Mgmt. Servs., 546 F.3d 528, 532 (7th
Cir. 2008) (explaining that, in order to engage in protected conduct, the plaintiff only has to show
that she “reasonably believed in good faith the practice [she] opposed violated [the statute]” (citing
Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002))). For purposes of this motion, the
Court will assume, without finding, that Ballard was satisfactorily performing her job duties. Under
the third prong, Ballard’s termination was an adverse employment action.
However, under the fourth prong, Ballard has not demonstrated that a similarly situated
employee was treated more favorably. Defendants note that Ballard has identified Lopez as a
comparator. However, Lopez was granted leave by his supervisor to take emergency vacation under
the terms of his LCA; in contrast, Ballard did not request her leave before her scheduled shift nor
did she call off or timely call off for her April 8, 2011 3:00 p.m. to 11:00 p.m. shift. Finally, unlike
Lopez, Ballard failed to provide proper documentation for her April 16-18, 2011 absences.
Therefore, Ballard cannot make out a prima facie case of retaliation for her termination in May
Even if Ballard could establish a prima facie case, Defendants offer a legitimate, nondiscriminatory reason for her termination. As discussed under the direct method, Defendants offer
evidence of the basis for the LCA in January 2011 and the basis for Ballard’s termination under the
LCA in May 2011. Ballard offers no evidence to question the motivation behind these actions and
has identified no evidence that the reason was a pretext for discrimination. As a result, Ballard’s
claim fails under the indirect method as well.
Accordingly, Defendants’ request for summary judgment on Ballard’s retaliation claim in
Count II is granted.
For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion for Summary
Judgment [DE 74], granting summary judgment in favor of Defendants on all of Plaintiff’s claims
in the Second Amended Complaint.
The Court VACATES the final pretrial conference and trial.
The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Defendants
and against Plaintiff.
So ORDERED this 17th day of August, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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