Opinion
Cause No. IP01-0066-C-M/S
August 28, 2002
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant's, Interstate Brand Corporation, d/b/a Wonder Bread (hereinafter "IBC"), Motion for Summary Judgment on the claims of plaintiff, Gary G. Hammond ("Hammond"), under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL BACKGROUND
The facts in the light most favorable to Hammond are these:
IBC operates a bakery on Shadeland Avenue in Indianapolis, Indiana, at which it manufactures and distributes bread and cake products. Def.'s Stmt. of Facts ¶ 1. From March 1987 to December 31, 2001, Cathy Sites ("Sites") was the Human Resources Manager for IBC's Indianapolis Bakery. Id ¶ 2. From June 9, 1997, to July 3, 1999, Robert Feagan ("Feagan") was the Assistant Human Resources Manager for IBC's Indianapolis bakery. Id ¶ 3.
Hammond worked at IBC's Indianapolis bakery from February 25, 1978, until January of 1999. Id. ¶ 5. IBC contends that it terminated Hammond on January 15, 1999, but Hammond has pointed to some documents indicating that the effective date of his termination was not until January 20, 1999. See Exs. W, X. At the time of his termination, Hammond was working as a Relief Person in the Muffins Department at the Indianapolis bakery. Def.'s Stmt. of Facts ¶ 5. Hammond had worked in the Muffins Department for the two years prior to his termination. Id.
A. THE COLLECTIVE BARGAINING AGREEMENT
On August 26, 1997, IBC and the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union Local No. 372B ("the Union") entered into a Collective Bargaining Agreement ("CBA"). Id. ¶ 6. The CBA covered the period from June 15, 1997, through June 20, 2000. Id. Hammond was a member of the Union; thus, the CBA established the terms and conditions of his employment with IBC. Id. ¶ 7. Pursuant to Article X of the CBA, the company "agrees to comply with the Federal Family Medical Leave Act (FMLA) as prescribed by Congress." Id. ¶ 8. Article XIV of the CBA provides a four-step grievance-arbitration procedure under which the Company and the Union may grieve "differences [which] arise between the company and the Union as to the interpretation of the provisions of this Agreement." Id. ¶ 9. The first three steps of that process are handled internally between IBC and the Union. Id. ¶ 10. At the fourth and final step, either party may submit the dispute to final and binding arbitration. Id.
B. IBC'S FMLA AND ATTENDANCE CONTROL POLICIES
Since 1994, IBC has at all times posted an FMLA facts sheet on the employee bulletin board in the bakery. In addition, IBC has distributed the same fact sheet to all of its current employees in 1994 and its new hires since that date. Id. ¶ 11. On several occasions, IBC provided Hammond with an FMLA fact sheet. Id. ¶ 12. IBC also displays in its Indianapolis bakery the federal "5-in-1" poster which details, among other things, employees' FMLA rights. This poster was displayed at IBC in 1998 and January 1999. Id. ¶ 13.
IBC's "The Family and Medical Leave Act of 1993" policy provides:
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave may be required to provide:
30-day advance notice of the need to take FMLA leave when the need is foreseeable;
Medical certifications supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
Second or third medical opinions and periodic recertification (at the employer's expense); and,
Periodic reports during FMLA leave regarding the employee's status and intent to return to work.
Pl.'s Ex. 19. Similarly, IBC's "Family And Medical Leave Policy Notice of Rights" states:
Intent to Return to Work. You must provide Personnel with a periodic report on your status to return to work.
Pl.'s Ex. 20.
At all times since 1994, IBC has had in place an Attendance Control Policy ("Policy") applicable to hourly employees. Id. ¶ 14. The current version of IBC's Policy has been in place since 1994. Id. Hammond received a copy of the Policy and is familiar with its provisions. Id. ¶ 15.
The Policy operates pursuant to a point system that assigns predetermined "penalty points" according to specifically defined "unexcused absences or incidents." Pl.'s Stmt. of Add'l Mat'l Facts ¶ 75. Under this Policy, IBC will terminate the employment relationship of an employee who either: (a) accumulates twenty-four or more points, or (b) fails for three consecutive days to contact IBC and not report to work. Id. ¶ 76. IBC's Policy does not, however, assign penalty points for "excused absences or incidents." Id. ¶ 77. FMLA leave is an excused absence under the policy. Id. ¶ 78. A specific provision under "excused absences or incidents" covers "return to work" obligations:
Return to work: After an absence of less than one week you are required to notify your supervisor of your intent to return to work no later than the end of your normal shift the day before your expected return. This will allow the management to properly adjust manpower levels.
Pl.'s Ex. 13.
The Policy provides that: "An absence of several consecutive days shall only count as one occurrence. This becomes a new occurrence once an employee notifies supervision they are returning and are placed on the schedule but does not return." Id. ¶ 16. The Policy requires an employee to call IBC in advance of his or her shift if he or she is going to be absent. Specifically, the Policy provides that "[a]dvance calls in the case of absence must be made to the department management at least two (2) hours before the shift starts. Department Management is defined as follows: (1) Your immediate Supervisor or Supervisor on duty; (2) Your Assistant Department Head; (3) Your Department Head." Id. ¶ 17. If an employee fails to call IBC prior to his absence, he is deemed "Absent with No Call," and is assessed four points under the Policy. Id. ¶ 18. In addition, "[t]hree consecutive days of no call, no show, is not subject to the same principle as Absence with No Call (NNC) and is a dischargeable offense." Id. ¶ 19. According to IBC, if an employee is absent without calling IBC for three consecutive days, he or she is automatically terminated. Id. If an employee is absent — excused or otherwise — for three consecutive work days, he or she must visit IBC's company physician for a physical examination and drug screen prior to returning to work. Id. ¶ 20. If an employee is absent and has not been released to return to work by his or her doctor, the employee is obligated under the Policy to keep the company informed of when and how long the employee expects to be out. Sites Aff. ¶ 10. When the employee informs the company of his or her return to work, IBC schedules the employee's physical examination and drug screen by Methodist Occupational Health Care. Def.'s Stmt. of Facts ¶ 20. Under the Policy, once an employee notifies IBC that he or she will or may return to work on a specific date, the employee must contact the company on the date the employee indicated he or she would or may return. Id. ¶ 21. If the employee does not, IBC considers the employee "Absent with No Call." Id. If an employee has an unexcused absence, a supervisor or manager in the employee's department completes an Attendance Control Policy Violation Form for each day of absence and then forwards the form to the Human Resources Department. Id. ¶ 22. Assistant Human Resources Manager Feagan was responsible for administering the Policy. Id. ¶ 23. On a weekly basis, Feagan reviewed the Attendance Control Violation Forms and evaluated whether each employee with a violation was subject to discipline. Id. ¶ 24. Sites then reviewed any proposed disciplinary actions Feagan recommended and issued appropriate discipline, in conjunction with an employee's department management.
C. HAMMOND'S 1999 ABSENCES
In 1998 and 1999, the Muffins Department operated from Sunday through Thursday. Def.'s Stmt. of Facts ¶ 30. In accordance with that schedule, IBC scheduled Hammond to work Sundays through Thursdays with Fridays and Saturdays off. Id. ¶ 31. His daily shift ran from 7:00 a.m. until 3:30 p.m. Id.
IBC scheduled Hammond to work from Sunday, January 3, 1999, through Thursday, January 7, 1999. Id. ¶ 32. On January 3, 1999, Hammond did not work his shift because the bakery was not operating. Id. ¶ 33. Instead, on January 3, 1999, Hammond plowed snow for his self-owned snow-plowing business until 2:00 a.m. on January 4, 1999. Id. ¶ 34.
On January 4, 1999, Hammond was due for his shift at 7:00 a.m. Id. ¶ 37. At approximately 2:30 a.m., he called IBC to state that he would be absent because of a bad headache. Id. ¶ 38. On January 6, 1999, Hammond went to Village Family Medicine because of his elevated triglycerides and hypo-thyroidism. Id. ¶ 39. He saw Dr. Karen Morelock. Id. While visiting Dr. Morelock, Hammond complained of headaches. Id. Dr. Morelock diagnosed Hammond with sinusitis, i.e., a sinus infection headache, and she prescribed Ultram, a prescription pain-killer. Id. ¶ 40. In addition, Dr. Morelock told Hammond to return to her office if his condition did not improve. Id.
After seeing Dr. Morelock on January 6, 1999, Hammond spoke to his girlfriend, Sandra Muehl ("Muehl"), that same day and asked her to call IBC on his behalf. Muehl called IBC and spoke to a Muffins Department Supervisor, Clayton Bodily ("Bodily"). Muehl told Bodily that IBC knew that Hammond was having problems with headaches, and that he had gone to the doctor. Muehl also told Bodily that Hammond was scheduled to see the doctor on January 11, 1999, and that he would return to work on January 12, 1999, if the doctor released him on January 11. Muehl Dep. at 20-23.
Hammond's prescribed medication did not improve his condition. Pl.'s Stmt. of Add'l Mat'l Facts ¶ 125. Instead, from January 6-11, 1999, Hammond's headaches got extremely worse. Id. ¶ 126.
On January 11, 1999, Hammond returned to Village Family Medicine and visited Dr. Elisabeth Phillips, who was his regular doctor. Def.'s Stmt. of Facts ¶ 42. Hammond drove himself to the pharmacy to pick up his medications. Id. He was able to participate in Dr. Phillips' examination without any difficulties, and he was able to walk into and out of the office without any problems. Id. Dr. Phillips prescribed additional pain-killers for Hammond's headaches, including Pamelor, Phenergan, and Lortab. Id. ¶ 43. The medication would not have inhibited Hammond's ability to make a phone call. Id. The medication could make him drowsy, and could affect his judgment. Dr. Phillips Dep. at 56-57. It could also affect his ability to drive or operate heavy machinery. Id. However, the last entry in Hammond's progress notes from the January 11, 1999, visit was "return to work note written without restrictions." Id. at 28.
Despite the progress notes entry, a copy of the January 11 return to work release note was not placed in Hammond's medical file. See Dr. Phillips Dep. at 54-58. Dr. Phillips was uncertain if the office policy on January 11, 1999, was to place a copy of a return to work note in a patient's file. However, Dr. Phillips assumed that the nurse who was responsible for writing the note on her behalf would have placed a copy of the note in Hammond's medical file. See id. at 57-58.
According to IBC, because Hammond had reported that he would return to work on January 12, 1999, if his doctor released him, it scheduled him for work on January 12-14, 1999. Id. ¶ 45. Hammond failed to report to work on any of those days, however, and he failed to contact IBC to explain his absences. IBC issued an Attendance Control Violation to Hammond for being "Absent, No Call" on January 14, 1999. Id. ¶¶ 46-51. Hammond admits that he was physically capable of calling IBC on those days that he was scheduled to work. Id. ¶ 52. Hammond was aware that in an emergency or unexpected situation, he was required to inform IBC as soon as possible about a medically-related absence. Pl.'s Stmt. of Add'l Mat'l Facts ¶ 105. Hammond spent those days sleeping and occasionally watching television. Def.'s Stmt. of Facts ¶ 53.
On January 15, 1999, Feagan received Hammond's Attendance Control Policy Violation forms from the Muffin Department. Id. ¶ 54. In reviewing the Policy, Feagan determined that Hammond was "Absent, No Call" for three consecutive days and thus subject to termination under the No Call/No Show provision of the Policy. Id. ¶ 55. Based upon Hammond's failure to report on January 12-14, 1999, as required by the Policy, Feagan recommended to Sites that Hammond be discharged for three consecutive days of No Call/No Show. Id. ¶ 58. On January 15, 1999, Sites reviewed the Policy Violation forms, spoke to Hammond's department personnel and to Feagan, reviewed the Muffins Department Log entries, and decided to discharge Hammond for three consecutive days of No Call/No Show. Id. ¶ 59. That same day, Feagan sent a certified letter to Hammond's last known address informing him that IBC had terminated his employment under the Policy. Id. ¶ 60. Hammond did not receive IBC's letter until a grievance meeting on January 20, 1999, because he was not living at the address on file with the company. Id. ¶ 61.
On January 18, 1999, Hammond returned to Village Family Medicine and visited Dr. Cathy Rowe ("Dr. Rowe"). Pl.'s Stmt. of Add'l Mat'l Facts ¶ 136. That same day, Dr. Rowe gave Hammond a release to return to work without restrictions. Id. ¶ 137. A copy of that note was placed in Hammond's medical file. See Pl.'s Ex. 3.
Hammond did not contact IBC again until January 18, 1999, when he went to the bakery to explain his absences on January 12-14, 1999. Def.'s Stmt. of Facts ¶ 63. Hammond brought the January 18, 1999, note that released Hammond to return to work without restriction, but Feagan told Hammond that the note was insufficient, and that he had been terminated on January 15, 1999. Id. ¶ 63-64. After speaking with Feagan, Hammond then spoke to Sites about his termination. Id. ¶ 65. Sites told Hammond that he should contact his union and file a grievance regarding his termination if he disagreed with IBC's action. Id.
Hammond told IBC that he "didn't understand why" because he "was under the impression that they understood that I was off seeing the doctor and that I was having these headaches." Pl.'s Stmt. of Add'l Mat'l Facts ¶ 145. Because he had previously missed work due to headaches, Hammond assumed that his absences had qualified as FMLA leave. Id. ¶ 146. According to Hammond, in the past he had two days after returning to work to get the FMLA paperwork filled out. Id. ¶ 147.
D. HAMMOND'S GRIEVANCE OF HIS TERMINATION
On January 19, 1999, Hammond and the Union filed a grievance in which Hammond claimed that IBC violated Article VI of the collective bargaining agreement, which was the provision dealing with severance of employment. Id. ¶ 66. Hammond's grievance did not mention Article X, in which IBC agrees to comply with the FMLA. Id. ¶ 67. On January 20, 1999, IBC and the Union held a grievance meeting at which Hammond and Union Business Agent Roger Scott ("Scott") were present. Id. ¶ 67. Sites was present on behalf of IBC. Id. At the meeting, Hammond presented Sites with a note from Dr. Phillips dated January 19, 1999, which stated that Hammond was under her medical care and that she had prescribed medication that may cause drowsiness and blurred vision. Hammond also presented copies of prescription scripts for Hydrocordone, Phenargen, and Nortriptline, which were dated January 12, 1999. Id.
At the meeting, Sites presented Hammond and the Union with a copy of Hammond's January 15, 1999, termination letter. Id. ¶ 68. On February 1, 1999, IBC denied Hammond's grievance. Id. ¶ 69.
Sites explained in a letter to Scott that the company denied the grievance because:
At no time when a call was made for Mr. Hammond, on January 4, 1999 and January 6, 1999, was there any reference to his having a medical condition. The call on January 6, 1999 indicated that he would be in January 12, 1999 or would call to let someone know what he planned to do. He failed to call or show for work on January 12, 13, 14th and subsequently was discharged for no call — no show under the Plant's Attendance Control Policy for violation of the no call — no show for 3 consecutive work days.
Id. On February 2, 1999, the Union notified IBC that it intended to pursue the grievance to the fourth step in the process, arbitration. Id. ¶ 70. Hammond, however, subsequently failed to attend a scheduled meeting at which the arbitration would be discussed, and the Union decided not to pursue the arbitration. Id. ¶ 70.
On September 26, 1995, Caroline Lovejoy, IBC Assistant Human Resources Manager, forwarded to Hammond a letter concerning his FMLA rights that stated in relevant part:
In order to be covered under the Family Medical Leave Act (FMLA) you and your doctor must complete the enclosed form and return it to Personnel within 15 days of the date of the occurrence. If you do not meet the deadline you will not have fulfilled the notification requirements of the FMLA, you will receive points and it is possible that you will be terminated for being off work without requesting a leave of absence as directed in the Plant Attendance Control Policy.
If your absence is due to a planned event, such as surgery or birth, the FMLA law requires that you provide 30 days notice prior to the event. If this is not possible immediate written notification is required. If you do not notify us before your absence you will receive points and it is possible that you will be terminated for being off work without requesting a leave of absence as directed in the Plant Attendance Control Policy.
Pl.'s Stmt. of Add'l Mat'l Facts ¶ 82. On February 12, 1997, Jim May, IBC Assistant Human Resources Manager, forwarded to Hammond a letter concerning IBC's FMLA notification requirement, which stated:
I removed the 3 points from your attendance record that you received on January 8, 1997. Your doctor's note indicated that you were off due to headaches. For future reference, the Family and Medical Leave Act states that you must give the company at least 30 days advance notice for planned medical treatment. If you have an emergency and cannot give advance notice, you are required to notify the company of the reason for taking leave within two business days of returning to work.
Id. ¶ 83.
On December 26, 1997, IBC issued Hammond its "Family And Medical Leave Policy Notice of Rights," which provided, in pertinent part, as follows:
Medical Certification. If your leave request is based on your serious health condition or the serious health condition of your son, daughter, spouse or parent, you must provide Personnel with a medical certification prepared by the treating health care provider. The medical certification must be provided to Personnel within fifteen (15) days of its request, or in cases of medical emergencies or unforeseen circumstances, as soon as practicable after your leave begins. If you fail to provide Personnel with a timely medical certification, your leave request, or your continuation of leave, will be denied, until the required certification is provided.
Designation of Leave. The Company will make a preliminary designation that your absence qualifies as family and medical leave. After you provide the Company with the required documentation, the Company will evaluate the information and make a determination as to whether the absence qualifies as family and medical leave. The Company will notify you of its final designation. If you fail to provide the Company with the required information within the time specified, your absence will be classified as other than family and medical leave.
Id. ¶ 84.
On October 21, 1998, Feagan issued Hammond a notice that stated as follows:
If you are requesting leave because of a serious health condition, you are required to submit within 15 calendar days a complete medical certification in the form attached to this memorandum. Failure to do so will result in denial of delay of your leave.
Id.¶ 85.
E. UNITED STATES DEPARTMENT OF LABOR INVESTIGATION
On or about April 27, 1999, IBC received a letter from the United States Department of Labor, which stated in relevant part:
This is to advise you that a former employee of yours, Gary Hammond, alleged that his termination from International Brands was in violation of his rights under the Family Medical Leave Act. The Wage and Hour Division of the U.S. Department of Labor enforces compliance with this law. In order to determine whether Mr. Hammond's rights under this law were violated, it is necessary that you contact me no later than May 11, 1999, in order to discuss these issues.
Id. ¶ 162.
On or about May 14, 1999, IBC engaged the U.S. Department of Labor in a telephone conversation about Gary Hammond. Id. ¶ 163. During the May 14, 1999, telephone conversation with the Department of Labor, IBC made the following representations:
3) I explained that Gary was no stranger to FMLA, for example in 1998 he used his entire 12 week entitlement. I also told her that Gary had a habit of not reporting to work or calling off work for extended periods of time then later showing up with medical documentation requesting FMLA.
4) I explained that we finally told Gary that future FMLA request must be communicated to IBC within two business days of need. (Oct. `98). Therefore, we would no longer [accept] (sic) medical documentation weeks after he took off work.
5) I then explained the events of 1/4/99 1/6/99, and the telephone calls Clayton Bodily took from Sandy Muehl. Ms. McCollough asked I stated there was no mention of Gary['s] illness.
Id. ¶ 163.
F. IBC'S KNOWLEDGE OF HAMMOND'S PROBLEMS WITH HEADACHES
In January 1996 and August 1996, Hammond was absent from work for unexpected "intense headache pain." Id. ¶ 86. On August 21, 1996, Hammond notified IBC that he needed to take FMLA-qualifying leave because "migraine headaches were ongoing causing him to be absent." Id. ¶ 87. On October 9, 1996, Hammond notified IBC that his absences, which commenced October 6, 1996, qualified as FMLA leave. Id. ¶ 88.
On November 5, 1996, Hammond notified IBC that his absences, which commenced October 6, 1996, qualified as FMLA leave. In addition, he also indicated that he did not know how long he would remain absent from work because of his serious health condition that makes him unable to perform the essential functions of his job. Id. ¶ 89. On or around November 26, 1996, Hammond submitted to IBC its "Certification of Health Care Provider" that was completed by Dr. Phillips, which certified that Hammond's absences from work during August through November of 1996 were due to a serious health condition. Id. ¶ 90. He submitted a similar document from a neurologist that certified that his absences were due to headaches that continued but were no longer incapacitating. Id. ¶ 91.
On December 17 and 18, 1996, Hammond was absent from work for an "untractable" headache. Id. ¶ 92. On January 8, 9, 16, and 22, 1997, Hammond was absent from work due to headaches. Id. ¶ 93. IBC designated as FMLA-qualifying Hammond's absences in January 1996, August 1996, and October of 1996 through January of 1997. Id. ¶ 94.
Each time Hammond completed IBC's "Physical Examination" form following his release to return to work after a medically necessitated absence, Hammond consistently identified his medical history as "frequent headaches." Id. ¶ 95.
On certain occasions, IBC has contacted employees who were on disability, worker's compensation, or other types of leave if the employees failed to provide updated information. IBC does not contact employees who are merely absent to determine the circumstances. Pl.'s Ex. R. On or around April 16, 1998, IBC contacted Hammond to determine his "ability to return to work from a medically related absence that commenced in March 1998." Pl.'s Stmt. of Add'l Mat'l Facts ¶ 97.
G. HAMMOND'S RETALIATION CLAIM
In his Complaint, Hammond also claims that IBC retaliated against him based on his attempt to take FMLA leave in January 1999. Def.'s Stmt. of Facts at 71. Hammond concedes that he was not retaliated against for taking leave prior to January 1999, and that he is not pursuing a retaliation claim on that basis. Id. at 72. Potential notice that Hammond was taking FMLA leave in January 1999 came from Hammond's January 4, 1999, phone call to IBC when he informed them that he would be unable to work from January 4-6, 1999, due to his headaches, but would return to work on January 7, 1999. Sites Aff. ¶ 16. Potential notice also came from Muehl's January 6, 1999, phone call when she informed IBC that they knew Hammond was having problems with headaches, and that he would return to work on January 12, 1999, if the doctor released him. Muehl Dep. at 20-23.
II. STANDARDS A. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. FMLA STANDARDS
The FMLA establishes two categories of broad protections for employees. First, the FMLA contains prescriptive protections that are expressed as substantive statutory rights. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition as defined by the Act. See id. (citing 29 U.S.C. § 2612(a)(1)). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed prior to the exercise of the leave. See id. (citing 29 U.S.C. § 2614(a)). To insure the availability of these guarantees, the FMLA declares it "`unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.'" Id. (quoting 29 U.S.C. § 2615(a)(1)).
When an employee alleges a deprivation of these substantive guarantees, the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave. In such cases, the intent of the employer is immaterial. See id. (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997) ("We shall continue to resolve suits under the FMLA . . . by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims.")).
In addition to the substantive guarantees contemplated by the Act, the FMLA also affords employees protection in the event they are discriminated against for exercising their rights under the Act. See id. (citing 29 U.S.C. § 2615(a)(1)-(2)). Specifically, "`[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave.'" Id. (quoting 29 C.F.R. § 825.220(c)). Furthermore, an employer may not consider the taking of FMLA leave as a negative factor in employment actions. See id. Because the FMLA's implementing regulations bar certain discriminatory conduct, the protections contemplated by these sections have been characterized as proscriptive in nature. See id.
In contrast to what an employee must show to establish a deprivation of a substantive guarantee under the Act, when an employee raises the issue of whether the employer discriminated against that employee by taking adverse action against him for having exercised an FMLA right, the question of intent is relevant. See id. The issue becomes whether the employer's actions were motivated by an impermissible retaliatory or discriminatory animus. See id.
III. DISCUSSION A. HAMMOND'S FMLA CLAIMS 1. Statute of Limitations
IBC's first claim is that the action should be barred because Hammond failed to comply with the FMLA's two-year statute of limitations. IBC contends that January 15, 1999, when IBC sent a termination letter via certified mail to Hammond's last known address, was the official termination of Hammond's employment at IBC and thus "the date of the last event constituting the alleged violation." 29 U.S.C.A. § 2617(c)(1). Since Hammond filed his lawsuit on January 17, 2001, his claim would be untimely by two days under IBC's theory.
Hammond responds that January 20, 1999, is the date that the statute of limitations commenced because that was when he actually received the letter from IBC. Moreover, some of IBC's own documents, including exit interview documents and personnel records, cite January 20, 1999, as Hammond's termination date. Under Hammond's theory, he had until January 20, 2001, to file suit; therefore, the January 17, 2001, complaint was timely. In the alternative, Hammond alleges that IBC's conduct was a willful violation of his FMLA rights, entitling him to the applicable three-year statute of limitations. 29 U.S.C.A. § 2617(c)(2).
The certified letter sent to Hammond on January 15, 1999, was sent back to IBC without Hammond's signature.
Since the Court denies IBC's Motion for Summary Judgment based on the two-year statute of limitations, it does not reach the willfulness argument.
In many employment cases, the date of an employee's termination and the date of his notice or knowledge of the termination are the same day. In this case, however, it is undisputed that Hammond did not receive any notice of the termination until January 18, 1999, three days after IBC claims it terminated his employment. On January 18, 1999, Hammond appeared at work to explain his absences and was unequivocally notified by both the Human Resources Manager and the Assistant Human Resources Manager, Sites and Feagan, respectively, that he had been fired.
The narrow issue becomes whether an FMLA claim accrues when an employee receives notice of an allegedly discriminatory adverse employment decision, or when that termination decision is made. Although the Seventh Circuit has not answered this question in an FMLA case, it has clearly answered the question in other employment discrimination contexts. The Court will borrow from other analyses of employment discrimination statutes of limitations to resolve the present dispute. Accrual, i.e., the date the statute of limitations begins to run, is not the date a plaintiff is allegedly injured, but the date, if different from the date of the injury, the plaintiff discovers that he has been injured. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990) (concluding in ADEA case that statute of limitations began to run when termination was communicated to employee); see also Del. State Coll. v. Ricks, 449 U.S. 250 (1980) (holding that an employee's cause of action for wrongful termination under Civil Rights Act accrued on the date that the employee was notified of a wrongful decision to terminate). This "discovery rule" is read into statutes of limitations from federal statutes, absent a contrary directive from Congress. Cada 920 F.2d at 450.
In the present case, even if Hammond was officially terminated on January 15, 1999, as IBC contends, he had no notice of the termination until his conversations with Sites and Feagan on January 18, 1999. Thus, under the discovery rule, Hammond had until January 18, 2001, to file this lawsuit. Because he filed his complaint on January 17, 2001, the suit was timely. Thus, the Court DENIES IBC's Motion for Summary Judgment for failure to comply with the FMLA's statute of limitations.
2. Hammond's Substantive FMLA Claim
To succeed on his FMLA claim, Hammond must prove: (1) that he is an eligible employee under the FMLA, 29 U.S.C. § 2611(2); (2) that IBC is an employer under the FMLA, 29 U.S.C. § 2611(4); (3) that he is entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); and (4) that IBC improperly denied his leave under the FMLA, 29 U.S.C. § 2615. See Dey v. L. Marshall Roofing, 2002 WL 773989 (N.D.Ill.); Dormeyer v. Comerica BankIllinois, 1997 WL 403697 (N.D.Ill.) It is undisputed that Hammond is an eligible employee under the FMLA and that IBC is an employer under the FMLA; therefore, the first two elements are met. However, the parties dispute both whether Hammond was entitled to FMLA leave on January 12-14, 1999, and whether IBC improperly denied Hammond's leave under the FMLA.
a. Was Hammond Entitled to FMLA leave on January 12-14, 1999?
Under the FMLA, an employee is entitled to twelve weeks of leave during any twelve month period "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C.A. 2612(a)(1)(D). Hammond asserts that he was never released to return to work on January 11, 1999; thus, his headache problem was a serious health condition preventing him from performing the functions of his employment at IBC, and his January 12-14 absences were FMLA-qualifying. IBC, on the other hand, contends that Hammond was released to return to work by Dr. Phillips on January 11, 1999, so Hammond's January 12-14, 1999, absences were unexcused and Hammond could be discharged under their Attendance Policy provision for three consecutive days of unexcused absences.
In her deposition, Dr. Phillips interpreted the short hand used in Hammond's progress notes from his January 11 visit. See Phillips Dep. at 15-40. The final entry in the notes, kept in the regular course of a business activity, for the January 11 visit was "Return to work note written without restrictions." See id. at 28-30. Hammond disputes this record evidence by arguing that if a January 11 release had actually been given, a copy of the release note would have been in Hammond's medical file. There was no copy of a January 11 release to work in Hammond's medical file. See id. at 30. Dr. Phillips said she was not sure if the office policy at that time was to put a copy of a release to work note with a patient's medical file, but she assumed that the nurse who was responsible for writing the release note on behalf of Dr. Phillips would have put a copy of the release in the file. See id. at 57-58. Moreover, it is undisputed that Hammond was given a return to work without restrictions from Dr. Phillips on January 18, 1999, and that a copy of that note was placed in Hammond's file. See Pl.'s Ex. 3. Dr. Phillips also stated the medicine she prescribed for Hammond on January 11, 1999, could have made him drowsy or have affected his judgment. See Phillips Dep. at 56-57. The medication also could have impaired Hammond's ability to drive or operate heavy machinery, if that was required of him at work. See id.
Hammond argues that the absence of a copy of a January 11 return to work note in his medical file, coupled with the copy of the January 18 release in his medical file, proves that Hammond was not medically released on January 11. While the record does not support such an unequivocal conclusion, based on the absence of the January 11 note and the effect the medications could have had on Hammond, a rational juror could find that no medical release was given to Hammond on January 11, 1999. Viewing the disputed facts in the light most favorable to Hammond, there is a genuine issue of material fact as to whether Hammond was medically released to work on January 11, 1999.
b. Could IBC Terminate Hammond's Employment Even if Hammond Was on FMLA Leave?
IBC asserts that even if Hammond was released and consequently on FMLA leave, it could still terminate Hammond based on its "usual and customary" Attendance Policy. Hammond contends that he complied with the applicable Attendance Policy. Nothing in the FMLA prohibits an employer from requiring "an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave." 29 C.F.R. § 825.302(d). "Notice enables an employer to keep its business operating smoothly by bringing in substitutes or hiring temporary help." Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000). IBC analogizes two recent Seventh Circuit cases, Lewis and Gilliam, to the present case in support of its argument. See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (concluding that Holsum's company rules and Attendance Policy are "usual and customary" requirements); Gilliam, 233 F.3d at 971 (finding employee's obligation to give notice to employer under collective bargaining agreement to be "usual and customary" requirement).
Both Lewis and Gilliam support IBC's position. In Lewis, the Seventh Circuit held that the employee's termination for failure to comply with the employer's attendance policy did not violate the FMLA. See Lewis, 278 F.3d at 710. The employee had suffered an asthma attack at work, and gave the employer a "currently hospitalized" off-work slip from his doctor dated January 18, 1997. See id. at 708. The employee missed three subsequent scheduled days of work without calling in, and the employer designated the days as FMLA leave. See id. at 709. The employer fired the employee based on its Attendance Policy rule that terminates employment if an employee fails to call in for three consecutive scheduled work days. See id. The Lewis Court observed, "the FMLA does not `authorize employees on leave to keep their employers in the dark about when they will return.'" Id. at 710 (quoting Gilliam, 233 F.3d at 971). The holding in Lewis suggests that an employee cannot call in with an ambiguous return date and subsequently fail to follow up with the employer when the employee knows that the return date is no longer valid.
In Gilliam, the employee was given permission to take off a Friday, but did not contact his employer until the following Thursday. See Gilliam 233 F.3d at 970. In the meantime, the employee had been fired for violating a provision in the collective bargaining agreement that required employees to notify the company by the beginning of their third scheduled shift. See id. The Seventh Circuit held that, even assuming the employee was granted FMLA leave that Friday, the employer did not violate the FMLA in terminating the employee for his failure to comply with the collective bargaining agreement. See id.
Similarly, in the present case, Hammond failed to comply with company rules and policies by failing to report or call in for three consecutive days he was scheduled to work, and by failing to keep IBC sufficiently apprised of when he would return to work. IBC's Attendance Policy, like the Labor Agreement in Lewis, makes three consecutive unexcused absences a terminable offense, and Hammond's employment was terminated in accord with this provision. Hammond argues that this provision is not applicable because it applies only to unexcused absences, and under IBC's Policy, FMLA absences qualify as excused absences. Hammond argues that this "Return to work" provision, under the Excused Absences provision of IBC's Policy, applies:
Return to work: After an absence of less than one week you are required to notify your supervisor of your intent to return to work no later than the end of your normal shift the day before your expected return. This will allow management to properly adjust manpower levels.
Pl.'s Ex. 13. This provision does not help Hammond either. Muehl notified IBC that January 12, 1999, was Hammond's expected return date. As such, he was required to notify his supervisor no later than the end of his normal shift the day before his expected return, which would have required Hammond to call IBC on January 11, 1999, for IBC to adjust manpower levels.
Hammond also argues that it was also IBC's usual and customary requirement to contact him while he was off on leave. Hammond asserts that despite Muehl's phone call on his behalf on January 6, 1999, informing IBC he would be back on January 12 if released, it was still IBC's obligation to contact him to see if he would report to work on January 12 because that was its usual and customary requirement.
Hammond pointed to one specific occasion in 1998 when IBC contacted him while he was away on unspecified leave. See Pl.'s Stmt. of Add'l Mat'l Facts ¶ 97. When asked in his deposition if IBC had contacted him during past absences, Hammond responded, "[t]hey've left a couple of messages on the recorder . . . [asking] when I would be coming back to work." See Hammond Dep. at 106. But, IBC calling Hammond a few times during his numerous absences to verify his status and when he would return does not make it a usual and customary requirement. Hammond admitted that he knew if he was absent due to FMLA leave, he had to contact IBC as soon as possible. See Hammond Dep. at 93. Moreover, IBC's bulletin entitled "The Family and Medical Leave Act of 1993" provides:
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave may be required to provide:
Periodic reports during FMLA leave regarding the employee's status and intent to return to work.
Pl.'s Ex. 20. Further, IBC's bulletin entitled "Family and Medical Leave Policy Notice of Rights" for employees states:
Intent to Return to Work: You must provide Personnel with a periodic report on your status to return to work.
Pl.'s Ex. 19. Thus, Hammond's statement that IBC's usual and customary policy was to initiate periodic reports of Hammond's status is not supported by the facts, and IBC could terminate Hammond even if he was on FMLA leave.
c. Did IBC Improperly Deny Hammond Leave Under the FMLA for January 12-14, 1999?
Hammond also claims that IBC was on sufficient notice that he was on FMLA-qualified leave on January 12-14, 1999. Moreover, after this notice, IBC was obligated to make further inquiry to determine whether Hammond's absences were FMLA leave, and it violated Hammond's FMLA rights by failing to do so. IBC responds by claiming it did not have sufficient notice that Hammond was on FMLA leave, so it was under no duty to inquire into Hammond's condition. Further, IBC contends that even if Hammond was on FMLA leave, IBC did not deny Hammond's substantive FMLA rights because it merely terminated his employment due to his failure to comply with its Attendance Policy.
"It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title." 29 U.S.C.A. § 2615(a)(1).
The FMLA distinguishes between leave that is foreseeable and leave that is unforeseeable. Thirty days advance notice is required for foreseeable leave; "an expected birth, placement for adoption or foster care, or planned medical treatment for a serious condition of the employee or of a family member" are examples of reasons for foreseeable leave. 29 C.F.R. § 825.302(a). "When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). Hammond's recurring headaches were not planned or expected occurrences; therefore, they fit into the unforeseeable leave category and he was obliged to give notice of the need for leave as soon as practicable.
As for the content of the notice, it must be sufficient to alert the employer that the leave may be FMLA-qualifying. "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b). If the employee gives the employer sufficient notice that leave is needed for a "serious medical condition," then it is the employer's responsibility to designate the requested leave as FMLA-qualifying or otherwise. In Price v. City of Fort Wayne, 117 F.3d 1022, (7th Cir. 1997), the Seventh Circuit observed:
The FMLA does not require that an employee give notice of a desire to invoke the FMLA. Rather, it requires that the employee give notice of need for FMLA leave. This kind of notice is given when the employee requests leave for a covered reason. After a notice of this sort the employer can inquire further to determine if the FMLA applies.
Id. at 1026. The acceptable ways for an employee to provide notice include "in person, by telephone, telegraph, facsimile, . . . or other electronic means." 29 C.F.R. § 825.303(b). Thus, under the FMLA, if Hammond gave IBC sufficient notice that FMLA leave for a "serious medical condition" was needed on January 12, 13, and 14, 1999, the burden would be on IBC to inquire into the problem informally and designate it FMLA-qualifying or otherwise.
In Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001), the Seventh Circuit affirmed summary judgment for an employer when an employee called and advised her employer only that she was "sick," even assuming that the employee was suffering from clinical depression. The Seventh Circuit held that the notice was inadequate because "sick" does not imply a "serious medical condition" as required by 29 U.S.C. § 2612(a)(1)(D). See id. Thus, because the employer in Collins was not on notice that the medical condition of the employee might be serious or that the FMLA might otherwise apply, the employer could properly terminate the employee's employment without inquiring into the seriousness of the condition. See id. at 1008-09.
The instant case is distinguishable from Collins despite the fact that the only medical condition referred to in the January 6, 1999, phone call was Hammond's "headaches." In this case, IBC had ample knowledge over many years of Hammond's problems with headaches. In fact, IBC designated as FMLA-qualifying Hammond's numerous and extended absences in 1996, 1997, and 1998, all due to headaches. Moreover, IBC did not penalize Hammond for his absences from January 4, 1999, through January 6, 1999, based on his calling in early on January 4, 1999, and informing IBC he was suffering from "headaches," and that he would be back to work on January 7, 1999. According to Muehl, when she called in on Hammond's behalf on January 6, 1999, she explained to IBC that IBC already knew that Hammond had headaches, and that Hammond would return to work on January 12, 1999, if the doctor released him after his January 11, 1999, visit. In Collins, on the other hand, the employee only mentioned her problems with depression once, a year before the absence that led to her dismissal. See Collins 272 F.3d at 1008. Thus, Muehl's reference to Hammond's "headaches" was more meaningful notice to IBC of a potential FMLA-qualifying condition than the "sick" employee's notice to the employer in Collins. See Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002) (distinguishing Collins where employer knew employee suffered from depression, knew she had needed leave in the past for depression, and knew from employee specifically that she was suffering from "depression again" at the time of her relevant absence).
But the notice in the present case is still problematic. Even though Muehl referred to Hammond's headaches during her January 6, 1999, conversation with IBC, Muehl also gave IBC a date on which Hammond planned to return. Muehl stated that Hammond would return to work on January 12, 1999, if the doctor released him. Muehl Dep. at 20-23. IBC argues that this justified it in putting Hammond back on the work schedule starting January 12, 1999. Hammond, on the other hand, argues that despite Muehl's statement of his intent to return to work on January 12, IBC still had sufficient notice that Hammond needed FMLA leave on January 12-14, 1999.
For his January 4-6 absences, Hammond did give notice as soon as practicable. On January 4, 1999, he called IBC at 2:30 a.m., to inform them he would not be at work due to his headaches. After his January 6, 1999, appointment, Hammond had Muehl call on his behalf to inform IBC that Hammond's headaches persisted, but that he would be back at work on January 12, 1999, if the doctor released him. Even if IBC had sufficient notice that Hammond was requesting FMLA leave until January 11, 1999, it does not necessarily follow that it had sufficient notice that Hammond needed FMLA leave on January 12 if he did not show up.
For whatever reason, Hammond did not call IBC after his January 11, 1999, doctor's appointment with Dr. Phillips, or have Muehl call on his behalf as he did on January 6. Though the medication Hammond was taking on January 11, 1999, could make him drowsy, Hammond was capable of making a phone call. See Hammond Dep. at 22-24, 40. Hammond did not contact IBC until January 18, 1999, six days late and three days after IBC decided to terminate him pursuant to its Attendance Policy. Viewing the facts in the light most favorable to Hammond, he has not raised a material issue of fact as to whether IBC was on sufficient notice that he needed FMLA leave from January 12-14, 1999.
In sum, a material issue of fact exists as to whether Hammond was released by Dr. Phillips on January 11, 1999, and, consequently, whether Hammond was entitled to FMLA leave on January 12-14, 1999. However, even if Hammond was on FMLA leave on January 12-14, 1999, IBC, under Gilliam and Lewis, could require that Hammond comply with its usual and customary notice requirements, and terminate his employment if he did not. Finally, Hammond has not raised an issue of material fact as to whether IBC was put on sufficient notice that Hammond needed FMLA leave on January 12-14, 1999. Accordingly, the Court GRANTS IBC's Motion for Summary Judgment on the substantive FMLA claim.
3. Hammond's FMLA Retaliation Claim
a. Is Hammond's Retaliation Claim Truly Substantive in Nature?
Hammond also has asserted that IBC terminated him in retaliation for taking leave in January 1999 that was protected under the FMLA. IBC argues that Hammond's retaliation claim is more properly characterized, under Gilliam, as a substantive FMLA claim. In Gilliam, the plaintiff asserted a FMLA retaliation claim and the district court analyzed it that way. See Gilliam, 233 F.3d at 970. The Seventh Circuit, however, analyzed it as a substantive FMLA claim, reasoning that, "the thrust of Gilliam's claim is substantive; after all, UPS did not think that he had taken FMLA leave in the first place." Id. at 971.
Though IBC did not penalize Hammond for his absences from January 4, 1999, through January 11, 1999, IBC claims those absences were not FMLA-qualified. Hammond claims that those absences were FMLA-qualified. IBC had designated Hammond's past headache episodes as FMLA-qualifying, and the headaches commencing on January 4 required medical attention and prescription medication. Viewing the disputed facts in the light most favorable to Hammond, a rational trier of fact could find the January 4, 1999, through January 11, 1999, absences to be FMLA-qualifying and that IBC had notice of them. As discussed earlier, IBC did not have sufficient notice that the January 12, 13, and 14, 1999, absences were FMLA-qualifying, so Hammond has no FMLA retaliation claim based on those absences. He can, however, make a claim that IBC is retaliating against him for the potentially FMLA-qualifying January 4 through January 11, 1999, absences.
b. Hammond's Prima Facie Case
To establish a prima facie case of retaliation, Hammond must show that: (1) he engaged in a protected activity; (2) IBC took an adverse employment action against him; and (3) there is a causal connection between his protected activity and IBC's adverse employment action. See Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 616 (7th Cir. 2001). Upon the establishment of a prima facie case, the burden shifts to IBC to articulate a legitimate, non-discriminatory reason for the adverse employment action. See King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999). If IBC meets this burden of production, the presumption raised by the prima facie case is rebutted and drops from the case. See id. Hammond would then have the opportunity to show that the proffered reason was not the real reason for IBC's decision and that his taking the FMLA leave was, in fact, the real reason for the employment action at issue. See id. At all times throughout this burden-shifting approach, Hammond retains the ultimate burden of persuasion. See id. IBC argues that because Hammond was not entitled to take FMLA leave, he could not have engaged in any protected activity. However, the headaches that Hammond was experiencing on January 4, 1999, required medical attention and prescription medication, and were similar to the headaches IBC had designated as FMLA-qualifying in the past. Viewing the facts in the light most favorable to Hammond, he has raised a genuine issue of material fact as to whether he was entitled to FMLA leave from January 4 through January 11, 1999, and whether IBC was on notice of his need for leave, and FMLA leave is a protected activity. Separately, there is no dispute that Hammond suffered an adverse employment action when IBC terminated his employment, so he has met the second element of his prima facie case.
The third and final element of Hammond's prima facie case is causation. This element may be satisfied by the temporal proximity between Hammond's taking FMLA leave and his termination. King, 166 F.3d at 893. Feagan received Hammond's Attendance Control Policy Violation forms on January 15, 1999, and determined that Hammond was "Absent, No Call" for three consecutive days, from January 12-14, 1999. In accordance with the Policy, Feagan recommended to Sites that Hammond be discharged for those three consecutive days of No Call/No Show. On January 15, 1999, Sites reviewed the Attendance Control Policy Violation Forms, spoke to Hammond's department personnel and to Feagan, and decided to discharge Hammond for three consecutive days of No Call/No Show. That same day, Feagan sent a certified letter to Hammond informing him that IBC had terminated his employment. Thus, the termination decision was made by IBC four days after the potentially protected leave.
This close temporal proximity is sufficient to establish a prima facie case for retaliation. The Seventh Circuit has found that a plaintiff may be able to meet the causation element under similar circumstances. For example, in McClendon v. Ind. Sugars, Inc., 108 F.3d 789 (7th Cir. 1997), the plaintiff was terminated two or three days after he filed a lawsuit. In finding this temporal proximity to be sufficient to establish the causation element of the prima facie case, the Seventh Circuit explained that ". . . under this circuit's established case law, such a closely related sequence of events is sufficient to present a prima facie case. `Generally, a plaintiff may establish such a link through evidence that the discharge took place on the heels of protected activity.' A close temporal connection between the two events `is generally enough to satisfy the third element of the prima facie case.'" Id. at 796-97.
This is one of those cases in which the discharge took place "on the heels of protected activity." Hammond was fired four days after taking leave that was potentially FMLA-qualified. As a result, Hammond has established the third element of his prima facie case. The Court will now turn to IBC's asserted reasons for its decision.
c. Has IBC Asserted a Legitimate Nondiscriminatory Reason?
Because Hammond has established a prima facie case, the burden shifts to IBC to articulate a legitimate, nondiscriminatory reason for its decision to terminate Hammond's employment. IBC asserts that it terminated Hammond because he failed to comply with IBC's Attendance Control Policy, and evidence in the record fully supports this explanation. As discussed above, both Sites and Feagan reviewed the Attendance Violation forms, and determined that Hammond had violated the Attendance Control Policy. IBC's Policy was in effect at the time of Hammond's violation, and under the Policy, three consecutive days of absences with no call was a dischargable offense. This explanation is both legitimate and non-discriminatory. See King, 166 F.3d at 893 (concluding that employer's proffered reason for firing, that employee violated attendance policy, was reasonable and non-discriminatory). IBC has successfully rebutted Hammond's prima facie case; therefore, Hammond must show evidence that IBC's reasons are pretext.
d. Has Hammond Shown Pretext?
Hammond now bears the burden of persuasion to demonstrate that IBC's reason is false, and that discrimination was the real reason for the termination. An otherwise legitimate excuse is not pretextual if it is foolish, trivial, or even baseless, so long as the decision maker honestly believed it when taking the adverse action. See Debs v. Northeastern Ill. Univ., 153 F.3d 390, 396 (7th Cir. 1998). Thus, Hammond must prove that Sites did not honestly believe that Hammond violated IBC's Attendance Control Policy, and actually fired him due to his taking prior FMLA leave.
Hammond purports to show pretext by arguing that IBC made erroneous and misleading representations to the United States Department of Labor in 1999 about Hammond's termination, and later contradicted those representations to this Court in the pleadings. First, Hammond points out that IBC claimed to the Department of Labor that Hammond made no mention of his sickness during the January 1999 phone calls. Then, in its Statement of Facts at ¶ 41, IBC admits that a reference was made to the headaches in the January 6, 1999, phone call. However, in ¶ 41, IBC was merely restating Muehl's 2001 deposition testimony for purposes of the Summary Judgment Motion. In any event, the alleged conduct took place after the termination and does not shed light on why Sites and IBC decided to terminate Hammond's employment on January 15, 1999.
Hammond also indicates that IBC has taken contradictory positions before this Court and the Department of Labor on whether Hammond gave sufficient notice about FMLA leave in January 1999. However, Hammond is misconstruing IBC's current position; IBC did not concede the notice issue before this Court. Even if it did, this does not raise a question of material fact as to whether IBC's real reason to terminate Hammond was the Attendance Control Violation.
In sum, Hammond has failed to provide evidence that creates a factual issue about whether IBC's reasons for terminating his employment were lies or phony reasons. As a result, Hammond has failed under the indirect method of proof to demonstrate a triable issue of fact on his FMLA retaliation claim. The Court GRANTS IBC's Motion for Summary Judgment on that claim.
IV. CONCLUSION
For the reasons discussed herein, the Court finds that Hammond has failed to demonstrate that a genuine issue of material fact exists in this case. The Court DENIES IBC's Motion for Summary Judgment on the statute of limitations issue. The Court GRANTS IBC's Motion for Summary Judgment on the substantive FMLA claim. Finally, the Court GRANTS IBC's Motion for Summary Judgment on Hammond's FMLA retaliation claim.