Schumacher's leave as FMLA leave in compliance with
29 C.F.R. § 825.208(a). Plaintiff further argues that CCI violated
the FMLA when it failed to restore Schumacher to his former position
after an allegedly qualified leave. (Compl. 7).
Plaintiff's FMLA claim fails since Defendant's failure to formally
designate Plaintiff's leave as FMLA time does not extend the ninety days
allegedly provided under the collective bargaining agreement. See
McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999) (
29 C.F.R. § 825.208 is "invalid and unenforceable" to the extent it
extends employees leave beyond the ninety days mandated by the FMLA). At
least one other court in this district has reached a similar conclusion.
See Neal v. Children's Habilitation Center, 1999 WL 706117 (N.D.
Consequently, Defendant's failure to reinstate Plaintiff after his
leave did not violate the FMLA since his leave exceeded that which is
provided under the FMLA. Summary judgment is granted on Plaintiff's Count
Count IV: ADEA
Plaintiff alleges that Defendant discriminated against him in violation
of the ADEA when it terminated his employment. (Compl. 8).
Plaintiff may prove discrimination under the ADEA through direct
evidence or indirectly through the burden-shifting mechanism of McDonnell
Douglas. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973). In this case, Plaintiff has presented no direct evidence of age
discrimination. Direct evidence of intentional discrimination entails
proof of acknowledgment by the Defendant of a discriminatory motive.
Troupe v. May Department Store, 20 F.3d 821, 823 (7th Cir. 1994).
To prove discrimination indirectly, Plaintiff must establish that: (1)
he is a member of a protected class; (2) he suffered an adverse
employment action; (3) he was meeting his employer's legitimate
performance expectations; and (4) his employer treated similarly situated
employees who were not in the protected class more favorably. Maarouf v.
Walker Manufacturing Co., 210 F.3d 750, 751 (7th Cir. 2000).
Plaintiff has failed to meet the fourth element of a prima facie case
of age discrimination in that he has failed to show that his employer
treated similarly situated employees who were not in the protected class
more favorably. Plaintiff has not shown that Defendant retained
substantially younger employees when they took leaves of absence and
filed workers' compensation claims. Furthermore, the fact that Defendant
decided to hire Plaintiff when he was fifty-eight years old (Pl.'s 56.1
¶ 2) makes it unlikely that Defendant illegally discriminated against
him on the basis of age when it decided to terminate his employment at
Summary Judgment is granted on Plaintiffs Count IV.
For the reasons stated herein, Defendant's Motion for Summary Judgment is
GRANTED as to claims II, III, and IV. Plaintiff's Count I is remanded for
lack of federal jurisdiction.
IT IS SO ORDERED.
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