Opinion
No. 04 C 0130.
January 13, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff, Jutonia Morris ("Morris"), brings this pro se action alleging that she was wrongfully discharged while on maternity leave by her former employer, OAO Technology Solutions, Inc. ("OAO"), in violation of OAO's medical leave policy and the Family and Medical Leave Act ("FMLA), 29 U.S.C. §§ 2601 et seq. This court has jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1367. Before the court is OAO's motion for summary judgment. For the reasons stated below, the court grants OAO's motion.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
FACTS
Local Rule 56.1(a) provides that a motion for summary must include, inter alia, a "statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." This statement of material facts "shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." Part(b) of Local Rule 56.1 requires a party opposing summary judgment to file, inter alia, a concise response to the movant's statement of material facts. For purposes relevant here, that statement is required to include a response to each numbered paragraph in the moving party's statement, including in the case of any disagreement, "specific references to the affidavits, parts of the record, and other supporting materials relied upon." The rule is very clear that "all material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party." Local Rule 56.1(b)(3)(B).
Morris failed to submit any response to OAO's Local Rule 56.1 Statement of Undisputed Facts despite being adequately warned of the consequences in OAO's Notice to Pro Se Litigant Opposing Motion for Summary Judgment. Instead, Morris's response to OAO's motion for summary judgment consisted of numbered paragraphs that contain unsupported statements and irrelevant facts and raise new allegations of discrimination without any citation to the record. Morris also submitted affidavits from two individuals that primarily involve their observations of the difficulties Morris experienced during her pregnancy. These affidavits do not contradict any of OAO's material facts and do not raise any new facts relevant to the pending summary judgment motion. Although Morris is pro se and thus not held to the same standards expected of attorneys, Morris is still required to comply with the Local Rules of the U.S. District Court for the Northern District of Illinois. See Laramore v. City of Chicago, No. 02 C 4220, 2004 U.S. Dist. LEXIS 18240, 2004 WL 2033005 at *2 (N.D. Ill. Sept. 10, 2004) (court deemed the defendant's Local Rule 56.1 Statement admitted to the extent supported by affidavits, record evidence or other supporting material where pro se litigant failed to comply with Local Rule 56.1) (collecting cases). Thus, all material facts set forth in OAO's Local Rule 56.1 Statement of Undisputed Facts are deemed admitted to the extent they are supported by affidavits, record evidence, and other supporting materials. See Local Rule 56.1(b)(3)(B). See also, e.g., Bordelon v. City of Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000).
Morris began working for OAO in February 1997. OAO provides information technology ("IT") services to companies that outsource these services, including staffing a client's IT department. For example, OAO provides employees to IBM Global Services ("IBM Global"). IBM Global then sends OAO's employees to its own clients, such as Commonwealth Edison. Morris worked for OAO in various capacities at job assignments for IBM Global. In January 2000, IBM Global assigned Morris to an end-user support position at Commonwealth Edison, a customer of IBM Global.
In her employment with OAO, Morris received an employee handbook entitled, "OAO Technology Solutions, Inc. U.S. Employee Reference Guide" (the "Reference Guide"). Morris signed a receipt for the Reference Guide, acknowledging that she understood that the Reference Guide, "as well as any other statements of OAO Technology Solutions, Inc. policies, procedures, and benefits, [were] not contracts of employment, nor [were] they intended to alter the mutual at-will employment relationship." Def.L.R. 56.1 at ¶ 19. The Reference Guide contained other disclaimers that notified its recipients that nothing contained within the Reference Guide or other OAO statements or policies created a contract of employment or altered the at-will employment relationship. See Def. L.R. 56.1 at ¶¶ 17-18. The Reference Guide further stated that OAO administers its leave of absence policy in accordance with the FMLA and that "[t]he Company cannot guarantee that a position will be available if a leave of absence extends beyond 12 weeks." Def. L.R. 56.1 at ¶ 20.
In March of 2001, Morris learned that she was pregnant and informed her OAO supervisor, Carl Rohde ("Rohde"), of her pregnancy. In September, Morris notified OAO that she would need to take maternity leave. OAO informed Morris that she would need to submit a doctor's certification concerning her need for maternity leave. Morris worked at the Commonwealth Edison site for IBM Global until Tuesday, October 16, 2001. Her leave of absence began on Wednesday, October 17, 2001. While Morris was on leave, Habib Bilfaqi filled Morris' job duties at Commonwealth Edison.
Morris gave birth on November 1, 2001. She visited her doctor for a six-week check-up following the birth of her child, and her doctor gave her a clean bill of health at that time. Morris did not request a written release to return to work at that time because she intended to take twelve weeks of leave. Morris believed that her twelve-week leave of absence required her to return to work on January 14, 2002, and she informed her supervisors that she would return to work on that date.
In early December of 2001, Morris submitted a certification from her doctor concerning her leave of absence to OAO. OAO subsequently sent a letter to Morris, notifying her that it had received her doctor's statement of disability and that she had been placed on a FMLA leave of absence, effective October 17, 2001. The letter further informed Morris that OAO required its employees to submit a doctor's certification releasing them to return to work and that OAO "cannot guarantee that a position will be available beyond 12 weeks of FMLA leave." Def. L.R. 56.1 at ¶ 30. On January 17, 2002, Morris telephoned her doctor's office to request a release to return to work on January 14, 2002. Def. L.R. 56.1 at ¶ 42.
On the afternoon of January 8, 2002, Rohde received an e-mail from David Palagi ("Palagi") at IBM Global. Def. L.R. 56.1 at ¶ 32. Palagi forwarded an e-mail to Rohde from Bobbie Augustyn ("Augustyn"), Morris' immediate supervisor at Commonwealth Edison. Augustyn's e-mail listed a number of problems that she had encountered with Morris' work performance. Def. L.R. 56.1 at ¶ 32. Palagi informed Rohde in his e-mail that IBM Global preferred to retain Habid Bilfaqi in light of the concerns raised by Augustyn. Def. L.R. 56.1 at ¶ 33. Under the terms of its contract with OAO, IBM Global had the right to request the removal of any employee provided by OAO at any time. Def. L.R. 56.1 at ¶ 4.
Rohde telephoned Morris on January 11, 2002, informing her that IBM Global did not want her to return to work at the Commonwealth Edison work site. Def. L.R. 56.1 at ¶ 34. Rohde said that he would try to find Morris another assignment and asked that she forward an updated copy of her resume to him, which she did. Rohde tried to locate another assignment for Morris but was unsuccessful. OAO does not keep employees on its payroll while they wait for new assignments. Def. L.R. 56.1 at ¶ 40. As a consequence, twelve weeks and five days after Morris began her FMLA leave, OAO terminated Morris' employment, effective January 14, 2002. Def. L.R. 56.1 at ¶ 41.
In her deposition, Morris claimed that her conversation with Rohde occurred between 8:00 or 9:00 a.m. on January 8, 2002 despite the fact that Rohde did not receive the e-mail from Palagi until the afternoon of January 8, 2002. Morris' failure to comply with Local Rule 56.1(b), however, results in her admission that the telephone conversation took place on January 11, 2002. Morris also claims in her Brief in Support of the Position that Your Honorable Judge Should not Grant Motion for Summary Judgment Dispute of Material Facts that Rohde informed her during that conversation on January 8, 2002 that her employment was terminated. Nevertheless, Morris admitted in her deposition that OAO did not terminate her on January 8, 2002. Def. L.R. 56.1 at ¶¶ 35-36. As a consequence, the court will also disregard Morris' contention that she was terminated on January 8, 2002 because it directly contradicts her sworn deposition testimony. See Piscione v. Ernst Young, LLP, 171 F.3d 527 at 532-33 (7th Cir. 1999).
ANALYSIS
I. Morris' FMLA Claim
The FMLA guarantees eligible employees up to twelve weeks of unpaid medical leave each year for, inter alia, the birth of a child or because of a serious health condition. 29 U.S.C. § 2612(a)(1). When an employee returns from FMLA leave in a timely fashion, the employer must reinstate the employee to his or her former or an equivalent position. 29 U.S.C. § 2614(a)(1). To the extent that the court is able to construe a claim as arising under the FMLA, Morris claims that she was wrongfully terminated while on her FMLA leave.
In her response to OAO's motion for summary judgment, Morris appears to concede that she only asserts a state law breach of contract claim arising from OAO's violation of its employee handbook. See Morris' Brief in Support of the Position that your Honorable Judge Should Not Grant Motion for Summary Judgment Dispute of Material Facts at ¶ 4. If this is Morris' only claim, it is possible that the court lacks jurisdiction over the action because it is unclear whether diversity jurisdiction exists. See OAO's L.R. 56.1 Statement of Undisputed Material Facts at n. 2. Nevertheless, the court construes this action as including a claim that OAO violated the FMLA by terminating Morris' employment while she was on FMLA leave. See Gil v. Reed, 381 F.3d 649 at 658 (7th Cir. 2004) (although pro se plaintiff's pleadings were inartfully pled, the court construed the pleadings liberally and gave him the benefit of the doubt).
The parties do not dispute that Morris was entitled to twelve weeks of FMLA leave. The parties also do not dispute that Morris began her leave on October 17, 2001 and that she was notified by OAO that her FMLA leave began on October 17, 2001. Morris, however, argues without citing to any legal authority or admissible evidence that her FMLA leave did not technically begin until November 1, 2001 because she was on paid leave from October 17th through November 1st and that she was entitled to twelve weeks of FMLA leave after she exhausted her accrued paid leave. The FMLA, however, allows an employer to require its employees to exhaust their accrued paid vacation leave, personal leave, or family leave for any part of the twelve-week period. 29 U.S.C. § 2612(d)(2). Morris received her twelve weeks of FMLA leave and did not return to work at the expiration of the twelve-week period. Morris was afforded all that was required under the FMLA. Thus, the court grants summary judgment Morris' claim.
II. Morris' Breach of Contract Claim
Morris contends that OAO breached its employment contract with her by violating the leave policy contained within the Reference Guide by terminating her employment before her twelve weeks of leave expired. OAO argues to the contrary that the express disclaimers contained within the Reference Guide and the release signed by Morris serve as a complete defense to Morris' breach of contract claim. OAO further argues that not only did it follow its leave policy because Morris was not terminated until after the twelve-week period ended, OAO would have terminated Morris regardless of whether she was on leave because a client requested that she not return and there were no other available positions.
In her response to OAO's motion for summary judgment, Morris failed to respond to OAO's arguments that the express disclaimers function as a complete defense to Morris' breach of contract claim and that OAO would have terminated Morris regardless of whether she took maternity leave. Although the court liberally construes pro se filings, this liberal construction does not extend so far as developing and researching legal arguments for litigants proceeding without counsel. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001); Mathis v. N.Y. Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998). Morris still must challenge the arguments raised by OAO and demonstrate a genuine issue of material fact, which Morris failed to do. Morris' failure to respond to these arguments results in a waiver of her opposition to these contentions. See Volvosek v. Wis. Dep't of Agr., Trade and Consumer Protection, 344 F.3d 680, 689 n. 6 (7th Cir. 2003) (the total absence of argument regarding the plaintiff's termination waived consideration of the issue), citing United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).
In addition, as the court discussed above, OAO followed its leave policy by terminating Morris only after her twelve weeks of leave expired. The Reference Guide established that OAO administers its leave of absence policy in accordance with the FMLA and that "[t]he Company cannot guarantee that a position will be available if a leave of absence extends beyond 12 weeks." Morris was on notice that her leave started on October 17, 2001, that she needed to submit a certificate from her doctor releasing her to return to work, and that OAO was unable to guarantee that a position would be available after the twelve-week period. Morris received twelve weeks of leave, thereby receiving all of the benefits of OAO's leave policy to which she was entitled. She was terminated after the twelve-week period. Thus, Morris' claim that OAO breached its contract with Morris fails as a matter of law. The court therefore grants summary judgment in OAO's favor on Morris' state law claim of breach of contract.
III. Additional Claims Raised by Morris
Morris asserted new claims and allegations in her response to OAO's motion for summary judgment. These claims include breach of an oral contract, breach of an implied covenant of good faith and fair dealing, promissory estoppel, race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), pregnancy discrimination in violation of Title VII as amended by the Pregnancy Discrimination Act, disability discrimination in violation of the Americans with Disabilities Act, defamation, conspiracy to terminate her employment, termination without just cause, and failure to post required information regarding the FMLA. Because Morris did not raise any of these claims in her complaint, however, these claims are not properly before the court. See Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002) ("a plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment").
CONCLUSION
For the reasons stated above, OAO's motion for summary judgment is granted. The clerk is directed to enter judgment in favor of OAO Technology Solutions, Inc.
In addition, IBM Global Services has not answered Morris' complaint or filed an appearance in this matter. It does not appear that Morris properly served IBM Global Services with a copy of the summons and complaint in accordance with Rule 4(j) of the Federal Rules of Civil Procedure. Morris is directed to submit proof by January 28, 2005 that IBM Global Services was served with the complaint within 120 days of the filing of the complaint. If Morris fails to submit proof of service, the court will dismiss the complaint against IBM Global Services for lack of prosecution.