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July 30, 2003


The opinion of the court was delivered by: Blanche M. Manning, District Judge


Plaintiff Jacob Strykowski brought this action against Defendant Rush North Shore Medical Center ("RNS"), under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, Ct. seq., alleging unlawful discharge (Count I) and retahatoiy discharge (Count II). The instant matter comes before the Court on RNS's Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is GRANTED.


A. Strykowski's Work History with RNS

Strykowski, a respiratory therapist, was hired by RNS on August 30, 1993 and terminated on April 1, 2002. He worked the night shift along with one other employee, Ben Ramirez. His responsibilities included: (1) administering medication through aerosols, nebulizers, and incentive spirometers; (2) performing chest percussion; (3) drawing blood gas; (4) intubating patients; (5) setting up and maintaining ventilators; (6) performing CPR; and (7) responding to "codes" as part of the emergency response team when patients went into cardiac arrest.

The RNS job description for a respiratory therapist, which Strykowski signed and agreed to, requires that the employee have the ability "to lift, carry and push medium to heavy objects." Additionally, respiratory therapists are required to "stand" when performing chest percussions, during the initiation of nebulizer and aerosol treatments, and, when setting up ventilators. When responding to emergencies, eight to ten health care providers move quickly around the patient's bed trying to save his/her life. The scene is hectic and a respiratory therapist is standing or may be required to climb on the patient's bed to perform CPR. Respiratory therapists are also required to move patients in different positions when performing treatments and responding to emergencies.

In August 2001, Strykowski learned that he needed to undergo back surgery due to a "non-occupational injury." To cover his absences, Strykowski arranged with his immediate supervisor to take 6-8 weeks of vacation, using his accumulated paid time off ("PTO"). Prior to his leave, Strykowski's work performance was satisfactory. His immediate supervisor had the authority to approve Strykowski's request as his role was to determine if "they could afford to let [the employee] be gone" Strykowski did not inform Human Resources that he was having surgery or taking an extended absence.

B. Strykowski's Medical Condition

Strykowski had surgery on August 28, 2001, at Lutheran General Hospital. Unfortunately, there were unexpected complications following the surgery, and Strykowski suffered from "foot drop," lost feeling in both legs, which affected his balance and ability to walk. As a result, he was prone to fall if bumped and needed to hold something for balance when he walked. After using a walker for several months, he began using a cane around November 2001 to keep his balance. This condition continued through his termination on April 1, 2002.

Strykowski was not able to return to work after his six weeks of PTO elapsed. On October 16, 2001, after his PTO time had run out, he requested a formal medical leave of absence from Human Resources to begin on October 8, 2001 and to continue for six months (the maximum allowed under RNS "s policy). Strykowski chose October 8, 2001, because his six weeks of PTO expired on that date. He intended to return to work prior to the expiration of the twelve weeks guaranteed under the FMLA. In support of his request, Strykowski submitted a note from his physician, which stated that his medical condition began on August 28, 2001, its duration was "unknown at present" and that Strykowski "needs a walker for balance." Human Resources granted Strykowski's leave request and informed him that he was being placed on Family and Medical Leave effective October 8, 2001.

C. Proposal to Return to Work

In the beginning of November 2001, Strykowski visited his immediate supervisor at the hospital to discuss his return to work Although he no longer needed a walker and could use a cane to walk, Strykowski told his boss that he continued to have problems with his balance. They discussed Strykowski returning to work on a trial basis working in the pulmonary function lab. Strykowski claims that there were other jobs besides the pulmonary function lab such as oxygen rounds that he could perform, whereas RNS claims that he proposed working solely in the lab.

Although one of the duties of a respiratory therapist is to administer pulmonary function tests, Strykowski was not trained for and did not work in the pulmonaiy function lab because the lab is not open during the evenings, when he primarily worked. The pulmonary function tests are often performed in a dedicated pulmonary function lab although there is a portable bedside tester. The day shift respiratory therapists rotate through the pulmonary function lab. One day shift respiratory therapist, Fred Hotel, works in the lab more than others, but also performs the other duties of a respiratory therapist. For a few years in the early 1990s Hotel was the only respiratory therapist who worked in the pulmonary function lab but it was decided that others should be cross-trained and about 5 respiratory therapists now can work in the lab.

Strykowski intended to return part-time, working four hours a day. Strykowski and his immediate supervisor agreed that he would return to work on December 3, 2001. This arrangement required Strykowski to be moved from night to day shift and to be trained to work in the pulmonary function lab in a newly created position dedicated to the pulmonary function lab.

On November 12, 2001, Strykowski wrote a letter to Dr. Bauer, his surgeon, describing his limitations and asking Dr. Bauer to prepare a letter reciting the same limitations. Strykowski claims the purpose of the letter was to obtain bus service to his home as he had difficulty climbing stairs. Dr. Bauer's letter ...

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