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LILEIKIS v. SBC AMERITECH

February 6, 2003

NIJOLA LILEIKIS, PLAINTIFF,
v.
SBC AMERITECH, INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Defendant SBC Ameritech's Motion for Summary Judgment. For the reasons set forth in this opinion, Defendant's Motion for Summary Judgment is granted.

FINDINGS OF FACT

Plaintiff Nijola Lileikis ("Plaintiff" or "Lileikis") was employed by Defendant SBC Ameritech, Inc. ("Defendant" or "Ameritech") as a Directory Assistance Operator at its Network Services Business unit in Chicago Heights, Illinois. Plaintiff began working for Ameritech as a Directory Assistance Operator on June 26, 1981. The Chicago Heights office was one of six Ameritech facilities that together are responsible for providing directory assistance to 2.3 million customers a day.

Plaintiff's job consisted of sitting at a computer keyboard with a headset. She would push a button to connect with a caller, and the caller would then request a directory listing, usually a phone number. Plaintiff would provide the customer with the number and then immediately take another call. Plaintiff believed that she served between 1200 and 1300 customers a day.

In the field of directory assistance, time is of the essence. If Defendant Ameritech did not provide service to callers within a set number of seconds, Ameritech could be subject to fines and penalties. According to Plaintiff's uncontested deposition testimony, she was responsible for helping customers courteously, accurately and within seven seconds, eight hours a day, five days a week.

Ameritech maintained multiple strategies to maintain full, fast service to its customer base with a minimum of operator idleness. One strategy it pursued was to offer unpaid Excused Time, or "E-time", to its operators during periods with few customer queries. At any given time, there might be full days of B-time available or there might be none at all. Plaintiff took full advantage of E-time whenever it became available. Another strategy was to offer optional overtime to its employees during periods with many customer queries. Plaintiff almost never took advantage of optional overtime when it was available.

A third strategy was to implement a fairly strict progressive discipline policy to discourage employee absenteeism. At Ameritech, employee attendance was unacceptable when chargeable absences, i.e. those not covered by paid leave, approved as a disability, or taken under the Family and Medical Leave Act, reached four days or three cases within a 12 month period. Absent employees would initially receive a warning for their absence; after the accumulation of one or more warnings, further absences within 6 months would result in a written final warning. An employee who accrued further absences within twelve months of a final warning could be suspended from work, After suspension, the company had a right to terminate an employee if further absences occurred within twelve months. After twelve months of perfect attendance, the final warning would be cancelled for the purposes of further discipline, but it would not be expunged from the employee's record.

Plaintiff's attendance history during her employment was spotty. Lileikis received final warnings for poor attendance in 1986, 1989, 1991, and 1994. Lileikis was suspended from work for poor attendance on July 9, 1991 (one day suspension), November 26, 1991 (two day suspension), January 27, 1992 (five day suspension), August 3, 1994 (four day suspension), and in November 1997 (four and a half day suspension). Twice during her tenure, in February 1993 and September 1995, Plaintiff did have final warnings cancelled after 12 months of perfect attendance.

In late 1997 and into 1998, Plaintiff continued to struggle with her attendance. After her November 1997 suspension, Plaintiff was informed in writing that she needed to maintain six months of perfect attendance or she would be subject to further discipline. After six months of perfect attendance, Plaintiff was informed that she had been downgraded from the post-suspension level of discipline to the pre-final warning level. Shortly thereafter, on June 23, 1998, Plaintiff was again informed that her attendance record was unsatisfactory, and there would be zero tolerance for absences for six more months. In August 1998, Plaintiff was tardy for work, after which she was informed that if she was tardy twice more or had another chargeable absence, she could be subject to dismissal. On October 8, 1998, Plaintiff received a written notification from her supervisor, repeating again that Plaintiff's attendance record was poor and any further absences could result in further discipline, up to and including dismissal.

On October 15 and 16, 1998, Plaintiff was absent from work due to a migraine headache. When she returned to work, Plaintiff was reminded that she could file a request for those absences to be covered by the Family and Medical Leave Act. Plaintiff submitted that she had not visited a doctor for her condition, so she could not satisfy the Ameritech policy, which required supporting medical documentation to approve requests for leave under the Family and Medical Leave Act. As a result of these absences, Plaintiff received her sixth suspension from work, this for five days.

When Plaintiff returned from her suspension, she had a post-suspension meeting with her supervisor, Gladys Hanner. Ms. Hanner reiterated the seriousness of Plaintiff's poor attendance record, and stressed that Plaintiff was required to come to work as scheduled. Between her return to work on October 27 and December 3, Plaintiff filled out a "Health Care Provider's Certificate" ("certificate") in support of a request for leave. (P1. Dep. Ex. 18) The certificate, which Plaintiff signed on November 18, 1998, requested leave for the days she was absent with the migraine, October 15 to October 18, 1998, and from December 3, 1998 to March 3, 1998 [sic]. (Id.) The health care provider's portion of the certificate was completed by Dr. Mahim Vora.*fn1 (Id.) Dr. Vora indicated on the form that Plaintiff suffered from "depression, insonmia, lack of motiva[tion], lack of concentration, crying spells, [and] social withdrawal" begining in August 1998 with "duration undetermined." (Id.) Dr. Vora also indicated that Plaintiff was unable to perform work of any kind. (Id.)

On December 3, 1998, Plaintiff did not report to work. She telephoned that she was unable to report to work because of acute back pain. On December 4, 1998, Plaintiff filed a short term disability report via telephone with Ameritech. (P1. Dep. Ex. 10) On December 7, 1998, Defendant mailed Plaintiff a letter detailing the policies relating to Sickness Disability benefits, which included a description of the necessary medical documentation. (P1. Dep. Ex. 11) On January 7, 1999, Jean Ascher, a Licensed Certified Social Worker, sent further information relating to Plaintiff's condition to Defendant. The bulk of the documents were the social worker's notes, but the documents also contained a two page summary diagnosis from Dr. Mahim Vora diagnosing Plaintiff with "Major Depression, Single Episode."*fn2 (P1. Dep. Ex 12) On January 27, 1999, Defendant mailed Plaintiff a letter denying her claim for Sickness Disability benefits because the medical documentation she provided did not indicate "severe impairment or reference to [her] functional capacity . . . to perform [her] occupation as an Operator with or without reasonable accommodation." (Pl. Dep. Ex 14) The letter also informed Plaintiff of her right to appeal the denial of Sickness Disability benefits. (Id.)

Plaintiff did not file an appeal of the denial of her Sickness Disability benefits. On February 22, 1999, Plaintiff spoke with her supervisor on the telephone. (P1. Dep. Ex. 38, at D000422) Her supervisor informed Plaintiff that she had exhausted the 60 days of FMLA time arguably available to her, and that she should keep the office informed about her plans regarding a return to work. (Id.) At some point in March, Plaintiff received a handwritten note from Dr. Vora, dated March 17, 1999, which read in its entirety: "Ms. Nijola Lileikis is under my care. In my opinion she can return to work on Part time basis on 3-22-99." (P1. Dep. Ex 16) Though she may have spoken with her supervisor by telephone about this note, she did not submit this note to Defendant at any time. (P1. Dep. at 99-100) On April 12, 1999, Plaintiff called her supervisor to inquire about retirement benefits. (P1. Dep. Ex 38, at D000422) Plaintiff called her supervisor again on April 19, 1999 to learn whether she would be fired or suspended if she returned to work, as she had to return to work to be eligible for retirement benefits. (P1. Dep. Ex 38, at D000422-D000423) Her supervisor informed her that she would not be fired if she wanted to retire, but Plaintiff assumed she would ...


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