Opinion
Cause No. IP99-1457-C-T/G
October 26, 2000
Entry Discussing Defendant's Motion For Summary Judgment, Plaintiff's Motion To Strike and Plaintiff's Notice Of Motion For Sanctions
Plaintiff, Donna Niese, alleges that Defendant, General Electric Appliances ("GE"), discriminated against her on the basis of an alleged disability and failed to reasonably accommodate her in violation of the Americans with Disabilities Act ("ADA"). Niese also alleges that GE violated the Family Medical Leave Act ("FMLA") by denying her unpaid leave and retaliating against her for attempting to exercise her rights under the FMLA. She also alleges entitlement to vacation pay and liquidated damages under the Indiana Wage Payment Statute. GE moves for summary judgment on all claims. Ms. Niese moves to strike portions of GE's memorandum supporting its summary judgment motion and for sanctions. Having considered the motions and the parties filings, the court makes its ruling.
I. Factual and Procedural Background
The following facts are supported by proper citations to admissible evidence and are taken in the light most favorable to the Plaintiff, the non-moving party, with all reasonable inferences based on the facts drawn in her favor.
Plaintiff, Donna Niese, worked as an hourly employee at GE's Bloomington, Indiana plant. She held a coordinator position in which she was responsible for ensuring that all individuals necessary for the startup of the assembly line had reported for work. If they did not, she was responsible for calling the work pool to obtain replacements, or, if necessary, to work on the line herself. She also was responsible for ensuring that the correct parts were delivered for each model change and responsible for dealing with repair. She was a member of the Union, Local No. 2249, International Brotherhood of Electrical Workers ("Local 2249.")
While at GE, Ms. Niese received a copy of the 1997-2000 Collective Bargaining Agreement ("CBA") to which she was subject. The CBA contains provisions governing leaves of absence (Article XVI), vacations and vacation pay (Article XII), and grievance and arbitration procedure for the interpretation of the CBA (Articles XVIII and XIX). Under the CBA, to be eligible for vacation pay in a calendar year, an employee had to have been employed by GE as of December 31 of the preceding year or as of her last scheduled workday in the last week of the preceding year. (Def.'s Ex. B at 45). In addition, the employee must have either performed work as an active employee during the last full calendar week of the preceding year, or received earnings from GE for all or part of the last full calendar week of the preceding year. (Def.'s Ex. B at 45-46). The CBA also provides for the basic formulas for computation of vacation pay. (Id. at 48). The provision governing leaves of absences states that requests for unpaid absences will be granted at GE's discretion. The grievance and arbitration provisions require arbitration of "any grievance which remains unsettled after having been fully processed pursuant to the provisions of Article XVIII . . . [and which involve interpretation or application of a provision of the CBA]. . . . (Id. at 64).
The applicable page of the CBA contains no page number.
Ms. Niese asserts that she is a qualified individual with a disability under the ADA as a result of depression, with which she was diagnosed sometime before May 1997.
Because of the depression she does not want to get out of bed, cries for no reason, gets upset too easily, feels like she does not handle normal daily tasks the same as she did in the past, does not always care for her personal appearance as she once did (e.g., she doesn't always put on makeup or fix her hair), sometimes plans to go places and then does not want to go, sometimes may have to go to the restroom because of crying at work, and sometimes it would hurt her to lift her arms and legs and hurt to get out of bed. When first diagnosed with depression, she was prescribed Prozac, and she still is taking Prozac today. Though there are a few days when she does not do very well, for the most part, she does well and generally feels better when on the medication. The depression does not limit her ability to drive, read, or complete daily activities, though it is more difficult to complete housework.
In September or October 1997, she temporarily stopped taking Prozac because she thought she might be pregnant.
Ms. Niese took a paid medical leave of absence from October 6, 1997, through October 26, 1997. On October 27, 1997, she obtained a medical release indicating she could return to work that day with "unlimited placement". Around this same time, she also "cleared the clinic" at the GE Bloomington plant.
The parties do not explain what this means, but the court assumes that some medical professional at GE's medical clinic reviewed Ms. Niese's medical records or examined Ms. Niese, or both, and determined that she was fit to return to work.
Also on October 27, Ms. Niese requested an unpaid leave of absence, citing "personal problems and childcare issues" as her reason for requesting the leave. Her supervisor signed the form, and Ms. Niese assumed her leave had been approved. Her request for leave had not been approved, however. On October 30, 1997, Ben Lane, GE's Human Resources Director, denied her request for unpaid leave. He indicated that the reason for which leave was requested did not meet the requirements for unpaid leave.
Sometime the next week, around November 11, 1997, Ms. Niese contacted Mr. Lane by telephone and explained to him in detail what the "personal issues" and "child care issues" were, i.e., her depression and her son's medical problems (her son suffers from stomach pains and severe vomiting which has been diagnosed as irritable bowel syndrome). (Niese Dep. at 46-47, 94-97, 101-02; see also id. at 54.) Mr. Lane replied that he could only go by what was on the leave request form. Ms. Niese did not return to work after October 27. Nor did she submit any medical information after October 27, 1997, indicating that she was unable to work or was in any way limited in her ability to return to work.
On approximately November 15, 1997, Ms. Niese went to GE's Bloomington plant and met with Milton Johnson, a GE Human Relations Specialist and Human Resources Manager for the second shift as well as Ruthann Vaught, the second shift Chief Union Steward. She had intended to quit her job in order to avoid getting fired over the dispute about her leave request and absences from work. Ms. Niese explained her son's stomach illness and related problems to Mr. Johnson at that meeting. (Niese Dep. at 46-47.) Mr. Johnson told her "not to worry about it." (Id. at 47-48.) Nobody from GE contacted Ms. Niese about her absence through late November.
On or about December 5, 1997, Ms. Niese returned to the plant, and met with Carven Thomas, the Union President, Mike Harris, a GE Human Relations Specialist and Human Resources Manager for the first shift, Don Niese, her husband and also a GE employee, and Ms. Vaught. She intended to quit at this second meeting and produced a completed "quit form." At this meeting, Ms. Niese told Mr. Harris about her medical condition and her son's condition and indicated she did not want to quit her job because it was the end of the year and she would lose all of her vacation pay that she had coming as of January 1, 1998. Mr. Harris refused to accept the quit form, told Ms. Niese that he would talk to Ben Lane about her absences, and assured her that she would get her vacation pay. (Niese Dep. at 52.) Based on this assurance, Ms. Niese believed she would receive her vacation pay.
The parties have not referred the court to anything in the record which indicates whether Ms. Niese worked on the first shift or second shift.
The court understands this form to be the resignation letter dated December 5, 1997, which Ms. Niese eventually submitted to GE around December 15-20, 1997.
By letter, dated December 12, 1997, to Ms. Niese from Milton Thompson, a GE Human Relations Specialist, Ms. Niese's employment with GE was terminated for "unexcused absences," effective December 9, 1997. (Niese Dep., Def.'s Ex. 12.)
Subsequently, around December 15-20, 1997, Ms. Niese submitted a resignation form to GE which stated that she voluntarily terminated her employment with GE as of December 5, 1997. (Niese Dep., Def.'s Ex. 6.) Ms. Niese did so in order (1) to maintain health insurance coverage — GE's Betty Meyers informed her that GE could switch insurance coverage from her to her husband if she quit; and (2) to protect her employment record, that is, in an effort to avoid being fired over the lack of a resolution of her leave request.
Ms. Niese alleges that according to the terms of an employment agreement between her and GE, she is owed vacation pay and pay for personal days in the amount of $2,592.16. On September 29, 1998, she filed a Statement of Grievance, alleging a violation of Article XII of the CBA in that she was denied vacation days. This grievance was denied by GE, stating that she quit in 1997 and did not have any vacation days for 1998. Ms. Niese did not arbitrate the grievance.
Ms. Niese claims that the grievance states she was grieving other issues as well, but the phrase "Art. VII, but not limited to" in the grievance refers not to different issues but rather, to the basis for the grievance, i.e., a contractual provision, state law, or company policy.
Ms. Niese claims she did not arbitrate the grievance because she assumed she would receive her vacation pay since Carven Thomas, President of Local 2249 in 1997 and 1998, told her that as a result of a "strike vote" meeting, GE had agreed to pay her vacation pay. As evidentiary support, she cites her own deposition, pages 68-70, and Mr. Thomas' Affidavit, paragraphs 8-11, the former essentially repeating what is contained in the latter. GE objects to these statements as hearasy, and Ms. Niese has not responded to the objection. What someone at GE told Mr. Thomas appears to be hearsay. Similarly, what Mr. Thomas told Ms. Niese appears to be hearsay layered upon hearsay. These statements, therefore, are insufficient to create a genuine issue of material fact for purposes of defeating a summary judgment motion. See, e.g., Patel v. Allstate Ins. Co., 105 F.3d 365, 368 (7th Cir. 1997); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Because the individual(s) at GE who allegedly agreed on behalf of GE to settle Ms. Niese's grievance as part of the strike vote settlement is(are) not identified by Mr. Thomas, there is no basis for concluding that statements attributable to such person(s) are anything other than hearsay. For example, the court cannot determine that such statements were made by an agent of GE concerning a matter within the scope of the agency or employment. Thus, the statements in Mr. Thomas' affidavit and Ms. Niese's deposition that GE agreed to settle Ms. Niese's grievance over vacation pay must be disregarded on summary judgment.
Ms. Niese filed suit against GE in Indiana state court alleging a violation of the Indiana Wage Statute. GE filed an answer which asserted that "plaintiff is barred from recovery because she failed to exhaust her remedies under the union's collective bargaining agreement." Ms. Niese amended her complaint to include a claim under the FMLA. GE's amended answer included the same failure to exhaust remedies defense.
GE filed an untimely motion to remove the case to this court. At a pretrial conference on January 4, 2000, Ms. Niese agreed to removal by way of amending her complaint. The undersigned's order, dated January 7, 2000, states "the Defendant will not raise new defenses which have not been raised in the answer in that state court proceeding." (Aff. Michael K. Bonnell, Ex. C.)
II. Plaintiff's Motion to Strike and Motion for Sanctions
Ms. Niese moves to strike Section III.B of GE's Memorandum In Support Of Defendant's Motion For Summary Judgment, in which GE raises a federal preemption defense to her wage claim based on the Labor Management Relations Act of 1947 (the "LMRA"). She contends that GE should not be allowed to raise this defense because of a prior agreement of the parties, which was approved by the court's order. She states that the parties had agreed that she would agree to amend her federal complaint to incorporate claims for violation of the FMLA and the Indiana Wage Statute if GE agreed not to raise any new defenses. GE had untimely moved for removal of Ms. Niese's state action. This court's Trial Setting And Notice of Conference, dated January 7, 2000, states in pertinent part that "the Defendant will not raise new defenses which have not been raised in the answer in that state court proceeding." (Tr. Setting Notice Conf. at 1.)
The court agrees with GE that it did raise federal preemption, though indirectly, in the answer in the state court action. In both its Answer and Amended Answer in the state court action, GE alleged that "the plaintiff is barred from recovery because she failed to exhaust her remedies under the union's collective bargaining grievance procedure agreement." (Answer, § II; Answer to Amended Compl., § II.) Thus, the existence of federal preemption under Section 301 of the LMRA "fairly shouted" from the pleadings. See Nat'l Metalcrafters, Div. of Keystone Consol. Indus. v. McNeil, 784 F.2d 817, 826 (7th Cir. 1986). Ms. Niese's motion to strike therefore is DENIED.
Plaintiff's Notice of Motion for Sanctions states that Ms. Niese will move the court for an order requiring GE to pay its expenses, including attorney's fees, incurred as a result of attempting to respond to factual allegations and argument presented in GE's summary judgment motion, specifically regarding GE's claim that the LMRA preempts Ms. Niese's claim under the Wage Payment Statute. Given the court's ruling that GE did not violate any agreement by arguing that the LMRA preempts Ms. Niese's wage claim, imposition of sanctions would be inappropriate. It is noted, however, that Plaintiff's Notice indicates that she "will move" for sanctions. She has not done so at this time. Therefore, no ruling on Plaintiff's Notice is necessary.
III. Motion for Summary Judgment A. Summary Judgment Standard
Summary judgment is appropriate "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." FED. R. CIV. P. 56(c); see Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 898 (7th Cir. 2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). If the moving party carries this burden, then the nonmovant must "go beyond the pleadings" and present specific facts which show that a genuine issue exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When considering a summary judgment motion, the court views the record and draws all reasonable inferences from the record in the light most favorable to the nonmovant. See Jovanovic, 201 F.3d at 898.
B. ADA Claims
To prevail on any claim under the ADA, including discrimination and failure to accommodate, a plaintiff must first establish that she is a "qualified individual with a disability." See 42 U.S.C. § 12112(a) (prohibiting discrimination in employment "against a qualified individual with a disability because of the disability of such individual. . . ."); Gile v. United Airlines, Inc., 213 F.3d 365, 372 (7th Cir. 2000) ("The ADA requires accommodation only for a `qualified individual with a disability' who can perform her job with or without reasonable accommodation."); Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see Jovanovic, 201 F.3d at 898. The plaintiff bears the burden of proving that she is a "qualified individual with a disability." See Weiler, 101 F.3d at 524; Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1284 (7th Cir. 1996).
1. Disability
GE first contends that Ms. Niese cannot prove she is a qualified individual with a disability because she cannot prove that she has a disability. "Disability" is defined under the ADA as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); Krocka v. Chicago, 203 F.3d 507, 512 (7th Cir. 2000). Ms. Niese alleges she is disabled because she suffers from a mental impairment, depression, that substantially limits one or more of her major life activities and because GE regarded her as having such an impairment.
Severe depression can qualify as a mental impairment. See, e.g., Krocka, 203 F.3d at 512; Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1061 (7th Cir. 2000). But not all depression is a disability under the ADA. See id. The depression must substantially limit the ability to perform a major life activity. See Krocka, 203 F.3d at 212-13; Schneiker, 200 F.3d at 1061 ("It is not enough . . . to demonstrate that [the plaintiff] suffers from depression. . . . [S]he must also demonstrate in the record that her depression substantially limits her ability to perform a major life activity."). "Substantially limits" means that "the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which the individual can perform, a major life activity as compared to an average person in the general population." Krocka, 203 F.3d at 213 (citing Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998); 29 C.F.R. § 1630.2(j)(1)(i), (ii)). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Ms. Niese alleges that she was substantially limited in caring for her family, performing household chores, taking care of her personal health, and working.
Ms. Niese testified that she had pain in her arms and legs making it difficult to get out of bed at times, that she could complete daily tasks only with difficulty and her husband's aid, and she lost interest in her personal appearance. She also testified, however, that she still does the grocery shopping for her family, sometimes makes meals, cleans house with her husband's help, is not limited in her ability to drive, reads often, is able to care for her son, and has not brought anyone in to help her with her daily activities.
The inability to perform activities with "ordinary ease" does not mean that an individual is significantly restricted in performing such activities. See Orme v. Swifty Oil Co., No. IP 98-1494-C H/G, 2000 WL 682678, at *5 (S.D.Ind. 2000). Given this evidence, Ms. Niese cannot raise a reasonable inference that she was substantially limited in caring for her family, performing household chores, and taking care of her personal health.
To show a substantial limitation in working, Ms. Niese must show that her depression "`preclude[s her] from more than one type of job, a specialized job, or a particular job of choice.'" Schneiker, 200 F.3d at 1060 (quoting Sutton, 119 S.Ct. at 2151). Proof of "an inability to perform a particular job for a particular employer" is not enough, see Weiler, 101 F.3d at 524; Schneiker, 200 F.3d at 1060. Rather, Ms. Niese must produce evidence that her depression "substantially limit[s] employment generally." Weiler, 101 F.3d at 524; see Schneiker, 200 F.3d at 1060 (quoting Skorup v. Modern Door Corp., 153 F.3d 512, 514-15 (7th Cir. 1998)). In other words, she must create an issue of fact as to whether her depression significantly restricts her ability to perform "a class of jobs or a broad range of jobs in various classes." Weiler, 101 F.3d at 525.
Ms. Niese testified that her depression affected her work in the following ways: she would "just cry for no reason," (Niese Dep. at 103); "sometimes [she] would have to leave and go to the rest room," (id.), and "[s]ometimes . . . it would hurt [her] to lift [her] arms to move." (Id. at 104.) The undersigned is in agreement with Judge McKinney that "`[s]ometimes' does not qualify as a `substantial limit' or a `significant restriction,' a standard that requires something more considerable." Hawkins v. Trustees of Ind. Univ., 83 F. Supp.2d 987, 997 (S.D.Ind. 1999) (citing Sutton, 527 U.S. 471, 119 S.Ct. at 2150-51 (discussing the meaning of "substantially limits"), and 29 C.F.R. § 1630.2(j)(2) (suggesting that the nature and severity, the duration or expected duration, and the permanent or long term impact of or resulting from the impairment be considered when determine whether an impairment is substantially limiting)). Further, the medical release Ms. Niese provided GE indicating that she could return to work on October 27, 1997, without restrictions (unlimited placement) is compelling evidence that she was not substantially limited in the major life activity of working. See Brookins v. Indianapolis Power Light Co., 90 F. Supp.2d 993, 1002 (S.D.Ind. 2000) (employee's testimony that depression left him unable to work was insufficient to establish a substantial limitation in major life activity of working where employee's physician testified employee could work without any restrictions). In addition, the evidence demonstrates that on October 27, Ms. Niese "cleared the clinic" at the GE plant, which is additional evidence that she was not substantially limited in the major life activity of working.
Furthermore, "if an impaired individual employs measures to mitigate [an] impairment, such as taking medication . . . the individual must be evaluated taking into account the ameliorating . . . effects of the measures on his ability to perform a major life activity." Krocka, 203 F.3d at 213; see Sutton v. United Airlines, Inc., 527 U.S. 471, 482-83 (1999). If medication corrects a physical or mental impairment, then the individual does not have an impairment that "substantially limits" a major life activity. See Sutton, 527 U.S. at 482-83. Ms. Niese testified that when on Prozac she felt better and "for the most part does really well." (Niese Dep. at 32-33, 75.) The beneficial impact of this prescription medication on Ms. Niese's condition further supports the finding that she was not substantially limited in any major life activity. See Sutton, 527 U.S. at 482-83; Krocka, 203 F.3d at 213.
Ms. Niese argues that a substantially limiting impairment may be found even if an impairment itself is not severe, where the impairment combined with acerbating factors becomes severe and substantially limiting. Pritchard v. Southern Co. Servs., 92 F.3d 1130 (11th Cir.), amended on reh'g in other part, 102 F.3d 1118 (11th Cir. 1996), cited by Ms. Niese is of no benefit to her. The plaintiff claimed she suffered from depression and dysautonomia. The court found a genuine issue of material fact as to whether she also suffered from symptoms of profound fatigue, difficulty sleeping, communicating, and concentrating, lack of energy and interest, poor concentration, memory problems, suicidal thoughts, depressed affect, and irritability. Work in the nuclear field, the plaintiff's field of work, exacerbated her stress and other symptoms. Id. at 1133-34. Her doctor opined that she was able to return to work, but not in the nuclear field. See id. at 1334. Ms. Niese does not allege that work in her field exacerbated any symptoms; rather, she claims that the "health problems of her son and the shock of finding that her leave had not been approved" combined with her depression substantially limited her ability to work. Further, unlike the plaintiff in Pritchard, Ms. Niese submitted a medical release to GE that released her to work without restriction. Thus, Pritchard is distinguishable.
The court finds that Ms. Niese has not come forward with sufficient evidence to create a triable issue regarding whether her depression substantially limits her in any major life activity and, therefore, she cannot establish she suffers from a disability under the ADA. This does not end the inquiry, however, as Ms. Niese argues, albeit in a footnote, that GE regarded her as having a disability.
The evidence does not support a reasonable inference that GE regarded Ms. Niese as having such an impairment. To show that GE regarded her as having a disability, "[i]t is not enough for [Ms. Niese] to show that [GE] was aware of [her] impairment; instead [she] must show that [GE] knew of the impairment and believed that [she] was substantially limited because of it." Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 954 (7th Cir. 2000) (quotation omitted). The same standards applicable to an actual disability are applicable to a perceived disability. Id. Thus, Ms. Niese must produce evidence that GE perceived that her depression significantly restricted her ability to perform a class of jobs or a broad range of jobs. See id.; Weiler, 101 F.3d at 525.
Ms. Niese argues that GE regarded her as having a disability because it was aware of her depression and granted her prior request for leave. This evidence is insufficient to raise a reasonable inference that GE believed that Ms. Niese was significantly restricted in her ability to perform a class or range of jobs on October 27 or thereafter. See Moore, 221 F.3d at 954 (employee's termination as a result of his rheumatoid arthritis held insufficient to establish that employer perceived him as disabled).
Even when this evidence is viewed in the light most favorable to Ms. Niese, the only permissible inference is that GE believed she was unable to perform her particular job at the time of her prior leave. Evidence of the prior leave does not tend to prove that Ms. Niese subsequently was unable to perform a class or range of jobs or, for that matter, her own job. Furthermore, Ms. Niese's medical release to return to work without any restrictions and her having "cleared" GE's plant clinic are strong evidence that GE did not believe she was unable to perform a class or range of jobs or even the particular position she held at GE on October 27. And, after that date, Ms. Niese did not submit to GE any medical information to suggest she was unable to work or was in any way limited in her ability to return to work.
Ms. Niese has come forward with insufficient evidence to create a genuine issue as to whether she has a disability as that term is defined under the ADA. For this reason, GE's motion for summary judgment should be granted as to the discrimination and failure to accommodate claims under the ADA.
2. Qualified Individual
Even assuming that Ms. Niese could produce evidence sufficient to raise a reasonable inference that she is disabled under the ADA, GE would nevertheless be entitled to summary judgment on her ADA claims. This is because she has not presented evidence sufficient to reach a jury on the question of whether she is a "qualified individual" under the ADA. Specifically, she has not come forward with sufficient evidence to create a triable issue regarding her ability to perform the essential functions of her job at GE.
Though the Seventh Circuit has not held that regular attendance is an essential function of every job, see Jovanovic, 201 F.3d at 900; Waggoner, 169 F.3d at 485 ("working part-time is an accommodation which can and often should be made" and "[i]n some jobs . . . working at home for a time might be an option"), it has held in a number of different employment contexts that regular job attendance is an essential function of the job in question. See Jovanovic, 201 F.3d at 900 (holding regular and timely attendance was essential function of his tool and die maker position which had to be performed on a regular basis by a small group of employees and plaintiff's attendance was erratic); Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) (holding regular attendance was essential function of production position and stating that "in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability."); Corder v. Lucent Tech., Inc., 162 F.3d 924, 928 (7th Cir. 1998) (holding attendance was an essential function of a job as account representative); Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998) (stating that a teacher "who does not come to work cannot perform the essential functions of his job"). As the Jovanovic court explained, "regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job." Jovanovic, 201 F.3d at 899-900; accord Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) ("Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise."). In determining that regular attendance is an essential function of a particular job, the Seventh Circuit has relied on the fact that the job was one that had to be performed at the employer's premises and had to be performed "on a regular basis." See Jovanovic, 201 F.3d at 900 (stating "if a tool and die maker is not on the premise, he could not carry out the employment responsibilities for which he was hired.")
The uncontradicted evidence, specifically Ms. Niese's own testimony, establishes that her position had to be performed on GE's premises and on a regular basis. As a coordinator, she was responsible for ensuring that all the individuals necessary for the startup of the assembly line reported for work, and if they didn't, she had to call the work pool for replacements, and, if necessary, ultimately work on the line herself. She also was responsible for ensuring that the correct parts were delivered and for dealing with repair.
To discharge these duties, Ms. Niese had to be present at GE's plant and had to be there on a regular basis. Thus, the court finds that regular attendance was an essential function of her job at GE. Ms. Niese has pointed to no evidence to raise a reasonable inference that she was willing and able to come to work after October 27, 1997. Because of her failure to attend work after that date, Ms. Niese cannot demonstrate that she was a "qualified individual."
Ms. Niese argues that she was not "deliberately avoiding work," but she cites no authority to establish that deliberate avoidance is necessary. The case law suggests no such requirement. In Nowak, the plaintiff teacher was absent from work because of hospitalization for quadruple-by-pass open heart surgery and subsequent infection, surgery to stabilize his spine, surgery on both hands, and amputation of a leg. See Nowak, 142 F.3d at 1001. The Seventh Circuit affirmed the grant of summary judgment to the employer because the plaintiff was unable to establish he was a qualified individual as he could not show he was able to come to work on a regular basis. Id. at 1003. No one reasonably could argue that the Nowak plaintiff deliberately avoided going to work.
Ms. Niese argues that because other employers have tolerated a greater number of absences, GE should have tolerated more from her. (See Pl.'s Answer Br. at 13-15.) The case law does not support her argument. "Attendance at the job site is a basic requirement of most jobs." Waggoner, 169 F.3d at 484. None of the cases cited in Ms. Niese's brief holds that where attendance is an essential function, a certain number of absences from work must be excused before it can be said the employee is unable to perform the job. Ms. Niese was absent from work for an extended period of time.
Lastly, Ms. Niese argues that even if she couldn't perform the essential functions of her job, GE had a duty to maintain her employment until such time as she could. She cites to Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996), for support. Gile recognizes that an employer may have a duty to reassign a disabled employee who cannot perform the essential functions of her current position. Id. at 498; see also Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000). But this duty has limits. See id. The employee must be "otherwise qualified" for another position before reassignment is required as an accommodation. See Rehling, 207 F.3d at 1014; Gile, 95 F.3d at 498.
The uncontradicted evidence is that regular attendance is an essential function for all of GE's positions. Because Ms. Niese did not attend work, she was not otherwise qualified for any other position, and GE was under no obligation to maintain her employment in her current position or to reassign her to a different position.
Ms. Niese has not produced any evidence to create a triable issue as to whether she was a "qualified individual" under the ADA. Therefore, GE should be granted summary judgment on her ADA claims.
C. FMLA Claims
Ms. Niese claims GE violated the FMLA by denying her unpaid leave and retaliating against her for attempting to exercise her rights under the FMLA.
1. Leave Claim
The FMLA provides that:
an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
. . .
(C) In order to care for . . . a son . . . of the employee, if such . . . son . . . has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the of such employee.29 U.S.C. § 2612(a)(1). Ms. Niese requested leave for "personal problems and child care issues," and later informed GE that she was referring to her depression and her son's stomach problems.
GE first contends that Ms. Niese cannot prove entitlement to FMLA leave because she cannot produce evidence showing that she had a "serious health condition." To show entitlement to FMLA leave because of her depression, Ms. Niese must be able to show that her depression made her unable to perform her job at the time she requested leave. See 29 U.S.C. § 2612(a)(1)(D); Stoops v. One Call Commun., Inc., 141 F.3d 309, 312 (7th Cir. 1998). Though she may have been unable to work prior to the time she requested unpaid leave, the medical release provided to GE's Benefits Coordinator on October 27, 1997, the same day Ms. Niese requested unpaid leave, indicates that Ms. Niese was able to return to work with no restrictions. An employer may determine whether an employee's requested leave is FMLA-qualifying based on certification by the employee's physician that the employee was not qualified for such leave. See Stoops, 141 F.3d at 312-13. Ms. Niese responds that the medical release:
was not provided for the purpose of actually returning to work but rather so that Niese could move from the status of paid leave to unpaid leave because she was having problems with GE's insurance provider concerning coverage . . . the medical release and Niese's actual condition did not coincide.
(Pl.'s Answer Br. at 16.) Plaintiff's unsupported assertion is insufficient to create a genuine issue of material fact regarding whether Ms. Niese was able to perform the functions of her job at the time she requested leave on October 27.
GE next argues that Ms. Niese's notice about her serious health condition and that of her son was insufficient to entitle her to FMLA leave. When giving notice of the need for FMLA leave, an employee does not have to assert her rights under the FMLA or even mention the FMLA. See, e.g., Stoops, 141 F.3d at 313; Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 1995); 29 C.F.R. § 825.303(b). But it is not enough that an employee simply inform the employer she needs leave, as Ms. Niese suggests. Rather, the employee must give the employer "enough information to put the employer on notice that FMLA-qualifying leave is needed." Stoops, 141 F.3d at 312; Price v. City of Ft. Wayne, Ind., 117 F.3d 1022, 1025-26 (7th Cir. 1997) (holding request for leave for medical reasons accompanied by a doctor's note to take time off was sufficient notice).
To put it differently, when providing notice of the need for FMLA leave, an employee "`need[s] to state a qualifying reason for that needed leave.'" Stoops, 141 F.3d at 313 (quoting 29 C.F.R. § 825.208(a)(2)) (emphasis in Stoops). No reasonable jury could find that Ms. Niese's initial, written request for FMLA leave constituted sufficient notice that FMLA leave was needed. Ms. Niese's request for leave stated that the request was for "personal problems and child care issues." Neither "personal problems" nor "child care issues" is a reason which qualifies for FMLA leave, and neither reason fairly implies a serious health condition.
Had Ms. Niese argued that her discussion with GE's Human Resources Director Lane approximately two weeks after she requested leave and her discussion a few days later with Human Relations Specialist Johnson created a genuine issue of fact regarding the sufficiency of her notice to GE of her need for FMLA qualifying leave, her argument would fail. Notice of the need for FMLA leave must be both adequate and timely. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980-81 (5th Cir.) (notice to the employer must be both adequate and timely), cert. denied, 525 U.S. 826 (1998); Carter v. Ford Motor Co., 121 F.3d 1146, 1148-49 (8th Cir. 1997) (same). Even assuming that the content of these discussions were sufficient to inform GE that Ms. Niese or her son had a serious health condition and that she needed FMLA leave, no reasonable trier of fact could find that the notice was timely. Where the need for FMLA leave is not foreseeable, the applicable regulations provide that:
She did not make this argument directly, but it can be inferred from her brief.
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. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.29 C.F.R. § 825.303(a). Ms. Niese did not give this subsequent notice within two working days of learning of the need for leave. In fact, this subsequent notice was not given until approximately two weeks after Ms. Niese knew of the need for leave. No reasonable person could find notice timely if given approximately two weeks after the need for leave is known. See 29 C.F.R. § 825.303(a) (notice expected to be given in one or two working days).
Ms. Niese contends that once she requested unpaid leave, GE had a duty to inquire further if it needed more information to determine whether the leave was FMLA qualifying.
Her contention is in error. Case law and common sense dictate that the employee must first give the employer notice that the requested leave is potentially FMLA qualifying before the employer's duty to inquire arises. See Stoops, 141 F.3d at 313; Price, 117 F.3d at 1025-26. As the Seventh Circuit stated in Price:
Price filled out the City-provided leave request form and indicated that the cause was medical need. She attached a doctor's note requiring her to take the time off. This was sufficient information to put the City on notice that this was a possible FMLA leave situation. It was then the City's responsibility to inquire further.
Price, 117 F.3d at 1025-26 (citing 29 C.F.R. § 825.303(b)). The court continued by explaining that "the employee [must] 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.
No reasonable jury could find that Ms. Niese requested leave for a reason covered under the FMLA. Thus, GE had no duty to inquire further to determine whether the FMLA applied to her requested leave.
Ms. Niese has not created a genuine issue as to whether she had a "serious health condition" under the FMLA. Even if she could establish that she had a serious health condition or that her son had a serious health condition, she has not created a genuine issue as to whether she gave GE adequate and timely notice of the need for FMLA leave.
Therefore, GE is entitled to summary judgment on her claim for leave under the FMLA.
2. Retaliation Claim
Ms. Niese alleges GE violated the FMLA by terminating her employment because she attempted to exercise her right to FMLA leave. In the alternative, she claims she was constructively discharged. GE argues the retaliation claim fails because Ms. Niese cannot establish a prima facie case.
In the absence of direct evidence of retaliation, the Seventh Circuit applies the familiar burden-shifting framework established in McDonnell Douglas v. Green, 411 U.S. 792 (1973), to retaliation claims under the FMLA. See King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999). Under this framework, a plaintiff must first set forth a prima facie case of retaliation. See id. A prima facie case of retaliation consists of three elements: (1) the plaintiff engaged in a protected activity; (2) the employer took an adverse employment action against the employee; and (3) there is a causal connection between the two. See id. GE argues that Ms. Niese cannot prove any adverse action was taken against her by GE because she turned in her quit form stating she was voluntarily terminating her employment with GE. The court disagrees.
Ms. Niese has come forward with sufficient evidence to create a triable issue as to whether she quit or whether her employment was terminated by GE. Ms. Niese's resignation letter and the termination letter from GE create a dispute of fact on this issue.
A reasonable jury could find based on the evidence that on or about December 12, GE terminated Ms. Niese's employment, effective retroactively to December 9. A reasonable jury could further find that only after receiving the December 12 letter, Ms. Niese submitted a resignation letter to GE, attempting to resign rather than be fired. GE has made no effort to explain how Ms. Niese's resignation letter- a letter that was not submitted to GE until after GE already had terminated Ms. Niese's employment-supercedes the prior termination. Since GE has only argued that it is entitled to summary judgment because Ms. Niese cannot establish an adverse action, summary judgment on her retaliation claim is inappropriate. GE's motion for summary judgment should be denied on Ms. Niese's retaliation claim under the FMLA.
Even assuming that Ms. Niese's claim is a constructive discharge claim rather than a retaliation claim, there is a disputed material fact precluding entry of summary judgment. To prove constructive discharge, a plaintiff must show that (1) her working conditions were so intolerable that a reasonable person would have been compelled to resign, and (2) the conditions were intolerable because of unlawful discrimination. See, e.g., Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000); Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999). GE argues only that Ms. Niese's working conditions were not intolerable. However, a jury must decide whether a reasonable person would have quit her job when she had been reassured that her leave situation would be taken care of, but it was not; she had a "clean" employment record; and discharge was imminent.
D. State Law Wage Claim
GE contends Ms. Niese's claim for vacation pay is preempted by Section 301 of the LMRA because her claim is based on a CBA. It further contends that because she did not exhaust her remedies under the CBA, she cannot bring this claim in this action. Ms. Niese responds that her wage claim is not preempted because "it does not involve significant interpretation of the CBA." (Pl.'s Answer Br. at 26; see also id. at 27) ("This case hinges not so much on the CBA but on the testimony of GE officials. The CBA is not implicated to the extent where preemption is warranted.")
Section 301 of the LMRA "authorizes federal courts to develop federal common law for the interpretation of collective bargaining agreements." In re Bluffton Casting Corp., 186 F.3d 857, 862 (7th Cir. 1999); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403-4 (1988); Loewen Group Int'l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir. 1995). To ensure uniform interpretation, Section requires the application of federal law to interpretation of such agreements. See, e.g., Loewen Group Int'l, 65 F.3d at 1421. Section 301 of the LMRA preempts a claim that is "founded on the CBA" or "depends on interpretation of a CBA." In re Bluffton Casting Corp., 186 F.3d at 862 (holding state law lien claims based on rights provided under CBA including wages, vacation pay, health care expenses and pension contributions, were founded on CBA and therefore preempted); Lingle, 486 U.S. at 410; Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987); Atchley v. Heritage Cable Vision Assocs., 101 F.3d 495, 498-99 (7th Cir. 1996).
Section 301 provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).
A claim based on an independent employment contract is preempted by Section 301 where the contract is inconsistent with an applicable CBA. See J.I. Case Co. v. N.L.R.B., 321 U.S. 332 (1943); Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285-86 (9th Cir. 1989); cf. Caterpillar, 482 U.S. at 395 n. 9 (holding claims for breach individual employment contracts not preempted by Section 301 where individual contracts were made with employees when they were not in positions covered by the CBA). In J.I. Case the Supreme Court held that individual contracts could not be used to defeat or delay procedures prescribed by the NLRB, to forestall bargaining, or to limit or condition terms of a CBA. See J.I. Case, 321 U.S. at 337-38. The Court did not prohibit every individual contract, but left open the question of whether individual contracts more advantageous than the CBA could be enforced. Id. at 339. The court continued: "We know of nothing to prevent the employee's, because he is an employee, making any contract provided it is not inconsistent with a collective agreement or does not amount to or result from or is not part of an unfair labor practice." Id. (emphasis added); see also Loewen Group Int'l, 65 F.3d at 1423 ("A collective bargaining agreement therefore supersedes an individual employment contract to the extent that they are inconsistent."); Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015-16 (9th Cir. 2000) (same).
Ms. Niese argues that this claim is premised upon an employment contract with GE which she identifies as GE's assurances that she would receive her vacation pay. (See Pl.'s Answer Br. at 24) (arguing that the CBA was supplemented and in part superceded by the assurances that she would receive vacation pay)). But any independent contract regarding vacation pay between Ms. Niese and GE is inconsistent with the CBA. Under the CBA, as Ms. Niese acknowledged at the December 5th meeting, if her employment ended before December 31, 1997, she would not be entitled to any vacation pay for 1998.
Because GE's assurances that Ms. Niese would receive her vacation pay even if she were to quit conflict with the CBA, her claim for vacation pay is preempted by Section 301 of the LMRA. It is undisputed that Ms. Niese did not arbitrate that claim and that the CBA requires arbitration. Therefore, her claim for vacation pay must be dismissed for failure to exhaust her remedies under the CBA.
It is noted that GE also argues the claim is time-barred. GE's argument is in error. The six-month limitations applies to "hybrid" suits under Section 301 alleging breach of the duty of fair representation against the union and breach of contract against the employer. That limitations does not apply to "straightforward" Section 301 claims against the employer only. See Jones v. Gen. Elec. Corp., 87 F.3d 209, 211-12 (7th Cir. 1996).
IV. Conclusion
Ms. Niese's claim for vacation pay under the Indiana Wage Statute will be DISMISSED for failure to exhaust her remedies under the CBA; GE's motion for summary judgment is DENIED on the FMLA retaliation claim and will be GRANTED on all other claims. As this entry does not dispose of all claims, no judgment will be entered at this time.ALL OF WHICH IS ORDERED this 26th day of October 2000.