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April 9, 1998

MARY HUBBARD, Plaintiff,

The opinion of the court was delivered by: CASTILLO


 This dispute centers on allegations that defendant Blue Cross Blue Shield subjected plaintiff Mary Hubbard to various forms of employment discrimination during her tenure, ultimately terminating her while she was on medical leave. Specifically, Hubbard claims in her amended complaint that Blue Cross violated the Family Medical Leave Act ("FMLA"), 28 U.S.C. § 2617 and 28 U.S.C. § 1331, by firing her while she was on leave (Count I); and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by failing to promote her because she is female (Count III) and by retaliating against her for complaining that sex played a role in her non-promotion (Count IV). *fn1" Before this Court is Blue Cross' Motion for Summary Judgment on all counts.


 The following facts are drawn from the parties' Local General Rule 12 statements of fact. *fn2" In March 1987, Hubbard began working for Blue Cross as a secretary. She advanced through a series of promotions to the level of Billing Manager in Blue Cross' Operations Service Center ("OSC"). Def.'s Facts PP 5-6. She worked in this position, apparently without incident, from November 1994 until early June 1995, when OSC was reorganized by the department manager, Michael Lacivita. Def.'s Facts P 9. Lacivita rewrote the job descriptions for two of the four Billing Manager employees, promoting them to Billing Manager II -- a supervisory position. *fn3" Id. P 11; Def.'s Resp. Add'l Facts P 8. Those promoted, Anthony Fortier and Kenneth Thompson, were male. Def.'s Facts P 11. Two females, Hubbard and Ju-Ton Loving, remained in Billing Manager positions and subsequently lost their offices. Pl.'s Facts P 9; Hubbard Aff. PP 2, 5. Under the OSC reorganization, Hubbard reported to her former peer, Fortier, an employee with whom she had been having some personal differences. Def.'s Facts P 18; Pl.'s Add'l Facts P 20.

 Shortly after the reorganization, Lacivita gave Hubbard a positive one-year performance review. Pl.'s Add'l Facts P 21. Signed on June 21, 1995, *fn4" the review awarded Hubbard a "CME" rating -- meaning that she "consistently meets and at times exceeds expectations." *fn5" Pl.'s Facts Ex. 6, at 6. A generally glowing review, it marked only two areas for Hubbard's improvement: the need to "be even more aggressive in getting her ideas expressed" and to follow up "with the many open items a billing manager has to deal with" -- although Lacivita admitted that the main reason for the open items was "Mary's own initiatives in resolving billing issues that she has surfaced," and later conceded that Hubbard "in fact closes out most items very quickly." Id. at 2, 5. Otherwise, Hubbard was "masterful at handling our customers . . . in difficult situations," possessed "top-notch" customer service skills, and was "driven to provide client satisfaction. She represents HMO-USA in a positive, professional manner." Id. at 2-3. Although the evaluation did not specifically address Hubbard's attitude toward or relationships with superiors, Lacivita did note as "particular strengths" that Hubbard "interacts courteously and professionally with peers, subordinates, and other employees" and that she "creates a positive corporate image in dealing with co-workers . . . ." Id. at 3-4.

 Notwithstanding her positive review, Hubbard was dissatisfied with her working conditions after the reorganization. She lodged two complaints -- one to Beth Williams in the Human Resources Department and one to Lacivita. Pl.'s Add'l Facts PP 9-10. Hubbard complained to Williams about the fact that two males had been promoted to Billing Manager II. Pl.'s Add'l Facts P 10. To Lacivita, Hubbard indicated that "sex played a role" in her non-promotion; she testified that she indicated this by asking him "why the women lost their office[s] and the men didn't." Hubbard Dep. at 578. Hubbard did not, however, specifically tell Lacivita that she believed she did not get the promotion to Billing Manager II because she is female. Id.

 On July 12, 1995, approximately one week after Hubbard complained to Williams and Lacivita, *fn6" Hubbard received a Documented Verbal Warning ("DVW"), which is a step toward termination. Def.'s Facts P 20; Pl.'s Add'l Facts P 12. Fortier issued the DVW at Lacivita's direction. Fortier Dep. at 116; Lacivita Dep. at 25, 42. In the month since Fortier had begun supervising Hubbard, he noticed certain behaviors on her part that he felt justified the DVW. First, he testified that Hubbard did not pay attention to detail. Fortier Dep. at 105. Second, he testified that Hubbard "had a history of arriving late and leaving early," although he could neither point to a specific occasion nor estimate how often she trimmed work hours. Id. at 106-08. Fortier's final justification for the DVW was Hubbard's insubordination. He testified that Hubbard refused to provide him on one occasion with information about her accounts, remarking to Fortier that it was "not a good day," and she was "not in the mood" to discuss them. Id. at 109-10. Fortier conveyed Hubbard's performance expectations following the DVW in a memo dated July 12. See Def.'s Facts Ex. 7. Before Fortier issued the DVW, he learned from Lacivita that Hubbard had complained about her non-promotion to both Lacivita and Williams -- although it is unclear from the record whether he knew the basis for Hubbard's objection to her non-promotion. Id. at 115-16; Pl.'s Add'l Facts P 12.

 Lacivita testified that he and Fortier had met with Beth Williams in early July to "explore our options" in disciplining Hubbard. Lacivita Dep. at 25. Personally, Lacivita wanted Hubbard fired. Lacivita Dep. at 25-26. He testified that a single incident of insubordination -- an incident he never witnessed, but only heard about from Fortier -- prompted the DVW and, he felt, justified her termination. Id. at 26; Pl.'s Add'l Facts P 18. According to Lacivita, Hubbard "created a scene at her cubical when given an assignment"; he explained that "she refused to accept the assignment and she spoke in tones that were clearly disrespectful to her supervisor." Lacivita Dep. at 26-27. Lacivita instructed Fortier to issue the DVW without any further investigation.

 Lacivita admitted that Fortier's report was inconsistent with his four-month experience supervising Hubbard and with her entire personnel history. Lacivita Dep. at 40. Hubbard's personnel file revealed no previous incidents of insubordination. Id. at 28. Lacivita acknowledged that Hubbard had never been insubordinate toward him either, and was cordial when he approached her with suggestions for improvement. Pl.'s Add'l Facts P 15.

 What followed was a deterioration in Hubbard's employment situation. Between July and September, Hubbard admits that she filled out time sheets indicating her attendance on four days that she was actually absent, and that she frequently turned in her time sheets late. Def.'s Facts PP 24-26. Lacivita received reports from several sources that Hubbard was missing deadlines and refusing assignments. Lacivita Dep. at 48. She often arrived at work late and left early. Prior to the OSC reorganization, however, Hubbard was given informal permission to keep flexible hours because she was taking classes outside of work. Blue Cross admits that Lacivita instructed Fortier to monitor and log Hubbard's arrival, and that no such log was kept on any other employee, even though several were regularly late for work. Pl.'s Add'l Facts PP 26-33.

 On September 25, 1995, Hubbard was placed on a Corrective Action Program ("CAP"). Def.'s Facts P 27. The CAP was a probationary program that was to last 90 days. It required Hubbard to meet several performance goals, including arriving at work on time, reducing unreported absenteeism, completing time sheets correctly, ceasing insubordinate and hostile responses to work assignments, and providing Fortier with face-to-face bi-weekly status reports. The CAP stated that Hubbard's failure to meet any one of these performance objectives would result in her termination. Def.'s Facts Ex. 9. Hubbard denies that she ever responded in a hostile or insubordinate manner to receiving work assignments. Pl.'s Resp. P 28.

 While on the CAP, Hubbard continued to make errors on her time sheets and to turn them in late. Def.'s Facts P 32. Fortier reported these incidents on Hubbard's first bi-weekly review, dated October 6, 1997. In addition, on both this and a subsequent review dated October 20th, Fortier reported that Hubbard continued to exhibit hostility and to resist work assignments. Id. P 33. The October 20th review also faulted Hubbard for tardiness on one occasion. Id. P 34. Hubbard refused to sign these reviews; however, she did not specifically contest them in writing or contact anyone to register her disagreement. Def.'s Facts P 36.

 Lacivita testified that on Friday, October 20, 1995, he met with Fortier and two Human Resources employees, Kari Kronborg and Tenia Glass, to discuss Hubbard's employment situation. Lacivita Dep. at 70. At that time, he claims, the four of them decided to terminate Hubbard effective Monday, October 23, 1995. Id. at 70-71. But Hubbard did not return to work on or after October 23. Def.'s Facts P 41. She filed for short-term disability for depression, and began leave under the Family and Medical Leave Act ("FMLA") on November 11, 1995. Id. P 42.

 According to Hubbard, the decision to terminate her was made not on October 20, but rather while she was on medical leave. Pl.'s Resp. PP 39-40. She draws this conclusion from various pieces of evidence. First, Hubbard points out that Fortier sent her an e-mail message on October 23 requesting her time sheet. Pl.'s Add'l Facts P 45. Second, Hubbard cites Fortier's testimony that he, Lacivita and human resources personnel discussed among themselves whether Hubbard would be returning and whether they could take disciplinary action against her while she was on medical leave. Fortier Dep. at 182. Third, Hubbard attaches to her summary judgment materials a letter that Tenia Glass wrote, but never signed, directing Hubbard to return to work on January 2, 1996. *fn7" Pl.'s Add'l Facts P 48. Lacivita testified, however, that Hubbard would have been terminated if she had come back to work on October 23. Lacivita Dep. at 71-72.

 Nevertheless, Hubbard states that she had no idea that her termination was contemplated until December 29, 1995, when she received a letter from Beth Williams informing her that failing the CAP goals prevented Hubbard from returning to her previous position and department. Pl.'s Add'l Facts P 47. Williams' letter presented two options: a 30-day job transition program, without pay, after which Hubbard could interview for other positions at Blue Cross, or immediate termination. Def.'s Facts Ex. 11. The chosen option was to take effect on January 2, 1996, upon Hubbard's return from leave. Pl.'s Ex. 11. Hubbard entered the transition program on that date, but did not seek another position within the company. She was ultimately terminated on February 16, 1996. Def.'s Facts P 46.

 On January 4, 1996, Hubbard filed charges with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights. After receiving a notice of right to sue, she filed this action on February 6, 1997.

 Hubbard alleges that (1) her termination while on medical leave violated the FMLA; (2) her non-promotion and loss of office were the result of sex discrimination; and (3) the DVW, the CAP, and her termination were retaliation for complaining that sex played a role in how Lacivita implemented the OSC reorganization. Blue Cross moves for summary judgment on all these claims, contending that (1) Hubbard cannot establish a FMLA violation because poor performance prevented her from returning to the Billing Manager position after her medical leave; and (2) Hubbard fails the prima facie case for both sex discrimination and retaliation under Title VII, and has no evidence impugning Blue Cross' nondiscriminatory reasons for issuing the DVW, placing Hubbard on the CAP, or terminating her.

 Evaluating these arguments under the standards for summary judgment, we conclude that Hubbard cannot prevail on her FMLA claim as a matter of law; however, she has raised genuine issues of material fact that require trial on her sex discrimination and retaliation claims. Blue Cross' motion for summary judgment is therefore granted in part and denied in part.


 Summary judgment is proper only when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When ruling on a motion for summary judgment, the court must view all evidence in a light most favorable to the non-moving party, and draw all inferences in the non-movant's favor. See Wolf v. Buss America, Inc., 77 F.3d 914, 918 (7th Cir. 1996), cert. denied, 519 U.S. 866, 136 L. Ed. 2d 116, 117 S. Ct. 175 (1996). But if the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Unterreiner v. Volkswagen, Inc., 8 F.3d 1206, 1212 (7th Cir. 1993).

 In ascertaining whether a genuine issue of material fact exists, the court must "view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254. If the "record taken as a whole could not lead the trier of fact to find for the non-moving party, there is no genuine issue of material fact for trial." See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In making this determination, this Court's sole duty is to determine whether sufficient evidence exists to support a verdict in the non-movant's favor; credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of the judge deciding a motion for summary judgment. See Liberty Lobby, 477 U.S. at 255. These pronouncements apply with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993). Mindful of these standards, we examine each of Hubbard's claims.


 I. Count I -- The FMLA Claim

 In general terms, the FMLA permits eligible employees to take up to twelve weeks of unpaid leave during any twelve-month period for family or medical reasons, including depression. See 29 U.S.C. § 2612. Once the employee returns from leave, the employer must restore the employee "to the position of employment held by the employee when the leave commenced" or to an equivalent position. Id. § 2614(a)(1)(A), (B). The employer is not required, however, to provide the employee "any right, benefit, or position of employment other than the right, ...

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