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BELL v. JEWEL FOOD STORE

February 22, 2000

MAURICE BELL, PLAINTIFF,
V.
JEWEL FOOD STORE, DEFENDANT.



The opinion of the court was delivered by: James H. Alesia, United States District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is defendant Jewel Food Stores' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (c). For the following reasons the court grants the motion.

I. BACKGROUND*fn1

Plaintiff Maurice Bell ("Bell") is an African-American man who was employed by defendant Jewel Food Stores ("Jewel") from 1992 until March of 1998. Jewel owns and operates retail grocery stores in the Chicago area. Bell brought this suit against Jewel under (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (2) the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2600 et seq.; and (3) Illinois law prohibiting retaliatory discharge. Because Bell has voluntarily dismissed his Title VII race discrimination claim,*fn2 the court addresses only the two remaining claims. First, Bell alleges that Jewel violated the FMLA when it refused to grant Bell leave for his illness and instead terminated his employment. Second, Bell alleges that Jewel violated Illinois law when it retaliated against him for filing a workers' compensation claim by terminating his employment.

The matter is currently before the court on Jewel's motion for summary judgment. Jewel contends that it is entitled to judgment as a matter of law on Bell's FMLA claim because (1) Bell has failed to establish that he requested leave under the FMLA, and (2) Bell has failed to establish that he suffers from a "serious health condition" as required to qualify for leave under the FMLA. Jewel also contends that it is entitled to judgment as a matter of law on his retaliatory discharge claim because (1) Bell has failed to establish the prima facie element of causation as required to state a claim for retaliatory discharge, and (2) Bell has failed to show that Jewel's reason for discharge was pretextual.

Bell worked as an assembler — responsible for moving products within a warehouse — in three different locations owned by Jewel. Bell began working at a warehouse in Hillside, Illinois, then transferred to the "Fresh Foods Center" in Melrose Park, Illinois. Finally, Bell was transferred to the "Dry Grocery Building" in Melrose Park, where he remained until his termination in March of 1998. During Bell's employment at the Dry Grocery Building, Dan Frasco ("Frasco") served as Distribution Manager and Joe Herrmann ("Herrmann") served as Plant Superintendent. At all times during his employment, Bell was a member of the Chicago Truck Drivers Union and was covered by the collective bargaining agreement executed by the union and Jewel.

In order to understand this court's opinion, one must be aware of a number of facts. For the sake of clarity, a recitation of these facts is in four parts. Part A discusses the relevant policies and procedures in place at Jewel. Part B discusses Bell's employment history at Jewel. Part C discusses events which relate to Bell's FMLA and retaliatory discharge claims. Part D discusses Bell's medical treatment.

A. Jewel's policies and procedures

Part of the collective bargaining agreement — entered into between Jewel and the union of which Bell is a member — is an attendance policy which governs employee absences. This policy is based upon a point system. Under the policy, if an employee is going to be absent, he is required to call work and notify the supervisors of the reason for his absence. Points accumulate for various violations of this policy. As the points accumulate, Jewel must follow certain procedures and protocol for disciplining the employees, which include sending a written warning prior to termination. Bell admits that he was aware of these call-in procedures.

Between June 26, 1996 and January 26, 1998, Bell received several points under the attendance policy, resulting in five separate written warnings. Moreover, in October of 1998, Bell accumulated forty-five points, which is enough to warrant indefinite suspension or termination. However, because Bell had accumulated the points so quickly, Jewel was not able to follow the correct protocol for terminating an employee.

In addition to the point-based attendance policy, the collective bargaining agreement contains a rule referred to by the parties as the "four day no call/no show" rule. Under the four day no call/no show rule, "[a]n employee shall be considered as quitting . . . (d) who is absent from work without approval for four (4) consecutive calendar days in a scheduled workweek." (Def. Mot. for Summ. J., Ex. 10.) Bell admits that he was familiar with this policy as well. In fact, Bell was terminated — and ultimately reinstated — in 1995 for violating this rule.

Related to the four day no call/no show rule, Jewel is in the practice of treating an employee as "sick" for four days. In other words, when an employee calls in sick, Jewel considers that person sick for that day and the next three consecutive work days (relieving the employee of the obligation to call in every day he is sick). However, after four days, the employee must either return to work or call in to report that he is still sick. If the employee fails to call in and is absent for four consecutive days, then that employee is subject to termination.

B. Bell's Employment History

In 1995, Bell suffered from ulcers and was absent from work for four consecutive days. Because Jewel had no record of Bell calling in to say he would be absent, it terminated Bell's employment. In a letter dated June 5, 1998, Jewel explained to Bell that it considered Bell as quitting because he was absent for four consecutive days without calling in to notify his supervisors of the reason for his absence. Bell was also contacted by union representative Lloyd Caldwell ("Caldwell") to explain that he had been fired for violating the four day no call/no show rule. During this time, Bell met with his supervisor and Caldwell, who both explained the four day no call/no show rule to Bell. Bell claimed that he had, in fact, phoned in to report that he would be absent. Bell backed up that claim with his phone records which showed that he had called in on the day in question. After proving that he had called, Bell was reinstated.

Bell was also absent from work for two weeks in March of 1997 for an injury sustained while at work. As a result of this injury, Bell filed a workers' compensation claim in June of 1997. This claim ultimately settled for approximately $4,700.00, including attorneys' fees, in 1998. Neither Frasco and Herrmann claim to have any knowledge of Bell's workers' compensation claim. (Def. Rule 12(M) Statement ¶ 23 (citing Exs. 11, 12).) Although Bell claims that the managers knew about his claim, he does not offer any basis for this belief. (Def Mot. for Summ. J., Ex. 3 at 194:5-17.) Furthermore, Bell even admits that he had no conversations with Herrmann, or any other supervisor, regarding his workers' compensation claim. (Id. at 192:2-6.)

C. Events leading up to Bell's claims

On February 24, 1998, Bell called Jewel and spoke to Judy Kittredge ("Kittredge"), who is responsible for documenting employee absences. Kittredge records the information regarding employee absences, which she receives from the employees, and forwards the information on to the supervisors, including Herrmann. When Bell called on February 24, 1998, he told Kittredge that he was sick and not feeling well. He further said that he was "going to take [his] three days" and that he would come in if he was feeling better. (Id. at 96:15-18.) Bell claims that he was suffering from pain to his lower back at that time. However, when he called in on February 24, 1998, Bell did not explain his illness to Kittredge.

According to Jewel's practice, Bell had until March 2, 1998 to either return to work or to call in to report that he was still sick. Bell did not return to work on March 2, 1998. Instead, Bell again called to say that he was sick and would not be returning to work. This time Bell spoke to Matt Barkmeier ("Barkmeier"). Bell told Barkmeier that he was "still a sick man" and that he was hurting and would not be in to work. Again, Bell did not explain his illness or pain to Barkmeier. Bell did tell Barkmeier that he was "going to be under [his] doctor's care," meaning that he "was going to get back with them." (Id. at 102:2-7.) When he called in on March 2, 1998, Bell was not under a doctor's care, nor had he seen a doctor at that point.

Now, according to Jewel's practice, Bell had until March 8, 1998 to either return to work or to call in to report that he was still sick. Bell did not return to work, but was absent from work for five consecutive days during the week of March 8, 1998. Bell did not call Jewel, or any agent of Jewel, after March 2, 1998 to report that he was sick and unable to work. Kittredge recorded that Bell was absent without notice on March 8, 9, 10, 11, and 12, 1998 and notified Herrmann of Bell's absences. On March 17, 1998 Herrmann prepared a letter addressed to Bell which stated: "During the period of Saturday, March 8, 1998 through Monday, March 16, 1998, we have no record of your calling to ...


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