Opinion
No. 99 C 8332
January 31, 2001
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Edward A. Evans ("Evans") sues Teresa Crayton ("Crayton") and Oliver Kimbrough ("Kimbrough") (collectively "defendants") for violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. Evans contends defendants terminated his employment in retaliation for his EMLA leave request. Defendants move for summary judgment, pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1.
This court dismissed defendants William Henderson and Rufus Porter without prejudice. See Evans v. Henderson, et al., 99 C 8332 (August 14, 2000).
BACKGROUND
Evans worked as a letter carrier for the Charles Hayes Station from 1993 to May 1998. Crayton is the manager of the station. As manager, Crayton approves disciplinary actions taken by the employees' supervisors.
On June 25, 1996, Evans was issued a 14 day-suspension for accumulating five unscheduled single day absences during the prior three months. Evans contends this suspension was Crayton's retaliation for the time he took off when his children were sick with chickenpox On July 10, 1996, Evans prepared a memorandum challenging the suspension. In the memorandum, he stated the absences were due to babysitting problems. Defendants' Statement of Undisputed Facts at ¶ 9. He never challenged the suspension on retaliation grounds.
Evans' complaint and response to defendants' motion for summary judgment are inconsistent. In his response, he agrees he was issued his first suspension on June 25, 1996 for five unscheduled single day absences. In his complaint, he states he requested and took leave on July 25, 1996 to care for his children who were suffering from chicken pox. However, his complaint also alleges his first suspension was in retaliation for the month he took off when his children had chicken pox. Read in a light most favorable to Evans, this court assumes Evans confused the dates, and his leave of absence to care for his sick children occurred before his first suspension was issued.
The suspension was eventually rescinded on procedural grounds.
On May 31, 1997, Evans was issued a second 14-day suspension for accumulating four unscheduled single day absences and four late arrivals within a three month period. Evans contends this suspension was Crayton's retaliation for Evans' first suspension challenge. On June 13, 1997, Evans wrote another memorandum challenging this suspension, listing excuses such as illness and babysitting problems. He never challenged this suspension on retaliation grounds.
This suspension was also rescinded on procedural grounds.
In April 1998, Crayton took a one-week vacation. Kimbrough acted as station manager in her absence. While Kimbrough was acting as manager, Evans came into the station on April 13, 1998 and reported he had hit a young boy while the boy was crossing a street. Kimbrough subsequently prepared a request for Evan's removal based on the accident. In the request, Kimbrough stated Evans was charged with: (1) failing to yield the right of way to a pedestrian and causing injury to a child; (2) unauthorized use of a private vehicle; (3) deviating from his postal route; (4) giving his assigned postal vehicle to a PTFS substitute carrier without authorization; (5) leaving the scene of the accident without notifying management; and (6) failing to perform his postal duties in a safe manner, evidenced by the injured boy and three prior accidents in which Evans was involved. Defendants' Statement of Undisputed Facts, Ex. B1. After reading Kimbrough's recommendation and interviewing Evans, Crayton approved Evan's termination on April 30, 1998. According to Crayton and Kimbrough, at the time Evans' employment was terminated they had no knowledge of any FMLA claims or requests made by Evans. In early 1999, the labor relations department of the Postal Service ruled there "just cause" for terminating Evans.
Evans contends: (1) the boy was not injured; (2) the station's customer services manager told Evans he did nothing wrong; and (3) his citation was subsequently dismissed. However, he provides no evidence to support his claims, and he fails to specifically deny defendants' claims to the contrary.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Resource Committee, Inc., 218 F.3d 719, 723 (7th Cir. 2000). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7ch Cir. 2000). A genuine issue of material fact exists when "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); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000).
II. Retaliation Claims Under the FMLA
Evans relies solely on indirect evidence to support his retaliation claims under the FMLA. When plaintiffs have no direct evidence of retaliation, courts analyze their claims under the burden-shifting framework established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999). Under this framework, a plaintiff must first establish a prima fade case of retaliation consisting of three elements: (1) the plaintiff participated in a protected activity; (2) the employer took an adverse employment action against the plaintiff; and (3) there is a causal connection between the protected activity and the adverse action. Id. If the plaintiff establishes a prima facie case, the burden shifts to the employer to offer a nondiscriminatory reason for the adverse action. The plaintiff must then prove the offered explanation is a pretext for discrimination. Id. at 892-93.
II. Evan's Prima Facie Case
A. Protected activity
The FMLA only covers childcare leave if the child has a "serious health condition." 29 U.S.C. § 2612 (a)(1)(C). In addition, the FMLA only covers a period of incapacity due to a serious health condition if that period is more than three consecutive days. Haefling v. United Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999); 29 C.F.R. § 825.114 (a)(2)(i). Evans' suspensions were based on single day absences, not absences lasting longer than three consecutive days. Furthermore, the undisputed evidence shows Evans cited babysitting problems as the reason for these absences. These absences clearly were not protected activities under the FMLA.
In regard to Evans' extended leave of absence, Evans provides no evidence other than his own view of the facts to establish he requested time off from his employer to care for his sick children. He provides no evidence to show he informed his employer about his children's chickenpox after he returned from his leave of absence. He also fails to provide evidence to establish the length of time he was actually absent as a result of his children's chickenpox. Based on the record before this court, Evans has not established protected activity status for the care of his sick children. See e.g., Corder v. Lucent Technologies, Inc., 162 F.3d 924, 927 (7th Cir. 1998) (granting summary judgment when plaintiff simply recited her own view of the facts).
Evans further contends defendants' retaliation was based on his challenges to the suspensions. However, it is undisputed Evans never mentioned the FMLA or FMLA protected activities in his suspension challenges. Therefore, Evans has no basis for claiming the suspension challenges were protected activities under the FMLA.
B. Causal connection
Even if Evans had presented sufficient evidence to show he engaged in an FMLA protected activity, he still could not prevail because he has not offered evidence to show a connection between a protected activity and his termination. "A substantial time lapse between the protected activity and the adverse employment action is counter-evidence of any causal connection." Filipovic v. K R. Express Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (internal quotation marks omitted). Even a four month gap between the protected activity and adverse action can preclude an employee's ability to establish a causal connection, especially when the employer has just cause to terminate the employee. Id. Evans' violations of employee rules and the events surrounding his accident on April 13, 1998 undoubtedly provide just cause for termination. In fact, the Labor Relations department made a just cause finding based on the events of April 13th.
Evans' termination occurred approximately two years after his alleged FMLA request, two years after challenging his first suspension, and ten months after challenging his second suspension. This substantial gap in time precludes Evans from establishing a causal connection.
In addition to the substantial time lapse, Evans fails to establish a causal connection because he provides no evidence the alleged retaliators had knowledge of the protected activity. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1146-47 (7th Cir. 1997). Both Crayton and Kimbrough signed sworn statements stating at the time Evans was terminated, they had no knowledge Evans made any FMLA requests, or more specifically, that he requested leave to take care of his sick children. Defendants Statement of Material Facts, Ex. A, B. Nor were they aware of any suspension challenge Evans made based on the FMLA. Id. Evans provides no evidence to dispute these facts other than his own views. Furthermore, the evidence shows Crayton played no role in Kimbrough's decision to recommend Evans' removal. In fact, Kimbrough had no contact with Crayton until Crayton returned from vacation one week after Kimbrough made his recommendation. Id. Evans provides no evidence to dispute these facts other than his own opinions. Accordingly, Evans cannot establish two of the necessary prongs for making a prima facie case of retaliation under the FMLA.
Even if Evans could establish a prima facie case, he could not prevail because defendants offer a nondiscriminatory reason for Evans' termination and Evans presents no evidence of pretext.
An alternative basis for granting defendants' motion for summary judgment is Evans' failure to comply with Fed.R.Civ.P. 56(e) and Local Rule 56.1(b). Although pro se plaintiffs are entitled to more lenient standards in some circumstances, there is no lower standard when it comes to complying with procedural rules. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Evans' Rule 56 violations include: (1) simply reciting his view of the facts without providing affidavits or other documents to support these facts; (2) providing no supporting memorandum of law in response to defendants' motion for summary judgment; and (3) failing to specifically deny defendants' claims that he was terminated for nondiscriminatory reasons and that Crayton and Kimbrough had no knowledge of any FMLA request made by him when they recommended termination. All facts in defendants' statement of material facts that are not specifically denied must be accepted as true. See e.g., Schulz v. Serfilco, Ltd, 965 F.2d 516, 518-19 (7th Cir. 1992).