The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Yolanda Willis sues the United States Postal Service
("defendant") for terminating her employment and denying her
medical leave required by the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601 et seq. Defendant denies Willis was
entitled to FMLA leave, that it improperly sought additional
documentation regarding her need for leave, or that it improperly
terminated her employment. Cross-summary judgment motions are
before the court. Willis also moves to strike specific evidence
submitted by defendant in support of its cross-summary judgment
All facts are undisputed unless otherwise noted.*fn1
Willis worked for defendant as a distribution clerk at
defendant's AMC O'Hare facility. Willis Facts at ¶ 7. Defendant
is an employer covered by the FMLA; Willis worked at least 1250
hours by February 2003. Id. at ¶¶ 5-6. Defendant's family and medical leave policies are contained in
its employee and labor relations manual at section 515. Id. at
¶ 9. To request FMLA leave, an employee must submit a request for
absence form with documentation supporting the request, including
a certification form from a health care provider. Id. at ¶ 10;
Def. Facts at ¶ 76. Defendant's certification form seeks
information regarding the employee's medical condition, including
the probable frequency and duration of absences from work. Def.
Facts at ¶ 77. Defendant's FMLA policy provides employees 15 days
to resubmit FMLA certification forms if clarification is needed.
Willis' Facts at ¶ 13. Defendant may require a second medical
opinion by a health care provider and, when the original and
second opinions differ, a third opinion may be required. Id. at
Nancy McCoy-Williams served as defendant's leave control
supervisor at all relevant times. Id. at ¶ 8. McCoy-Williams
was responsible for reviewing employees' attendance, conducting
interviews after unscheduled absences and issuing discipline when
appropriate. Id. at ¶ 15. If McCoy-Williams was notified that
an employee's absence was possibly covered by the FMLA, she would
give the employee a FMLA request form for the employee's doctor.
Id. at ¶ 16. McCoy-Williams would fax the returned form to a
postal physician who would advise her whether the employee's
condition was covered by the FMLA. Id. at ¶ 19. McCoy-Williams'
primary role in approving or rejecting an FMLA request was to
determine whether the FMLA certification request was complete.
Id. at ¶ 20. If an employee was absent for five days and had
not submitted a doctor's note, McCoy-Williams would request
acceptable documentation. Id. at ¶ 27. If she questioned the
medical documentation, she would give the employee an opportunity
to submit further documentation. Id. at ¶ 29. Employees were
allowed 15 days to resubmit FMLA certification forms if they
needed clarification. Id. at ¶ 30. On February 20, 2002, defendant received a medical slip from
Willis indicating she was unable to work February 1-3, 2002 due
to rheumatoid arthritis. Id. at ¶ 32. On April 23, 2003,
defendant received another medical slip from Willis indicating
she was unable to work April 16-20, 2002 due to severe arthritis.
Id. at ¶ 33. Both notes were signed by Dr. Albert R. Rosanova,
Jr. Id. at ¶¶ 32-33. In June 2002, Willis received treatment
from Dr. Rosanova for arthritis, a thyroid problem, headaches and
stress. Id. at ¶ 34. On August 19, 2002, Dr. Rosanova completed
a FMLA certification form that diagnosed Willis with multiple
joint disease of the knees, hips and feet. Id. at ¶ 35.
Arthritis is also known as multiple joint disease. Def. Facts at
¶ 80. The note indicated Willis' condition was chronic and
permanent. Willis Facts at ¶ 35.
Willis claims she requested FMLA leave in August 2002, based on
Dr. Rosanova's diagnosis. Id. at ¶ 36. McCoy-Williams never
approved Willis' August 2002 request. Id. at ¶ 42. Defendant
states that the FMLA documentation Willis submitted in August
2002 was actually related to her previous absence from June
19-July 22, 2002, which was taken without prior submission of
medical documentation. Def. Resp. to Willis Facts at ¶ 36. The
August 2002 certification form question regarding the probable
frequency or duration of absences indicated the doctor was
"unable to determine frequency and duration, however will be off
2-4 days or more per episode per week per year." Def. Facts at ¶
81. McCoy-Williams did not believe this response clearly provided
the doctor's understanding of Willis' probable frequency and
duration of absences. Def. Resp. Willis Facts at ¶¶ 39-40.
Willis submitted certification forms to defendant on October
22, 2002, again related to her arthritis. Def. Facts at ¶ 79. The
form indicated the doctor was "unable to determine frequency and
duration" of absences. Id. at ¶ 81. On December 10, 2002,
Willis requested a temporary light duty assignment because of pain in her legs and feet. Willis Facts at
¶ 43. Willis attached a light duty medical status report stating
she was not to stand for long periods of time and that she should
rotate one hour standing and one hour sitting. Id. at ¶ 44.
Willis never received a response to her temporary light duty
assignment request, but continued working. Id. at ¶ 46. On
December 13, 2002, McCoy-Williams sent a fitness for duty request
to Phyllis Burtley, a postal service nurse, requesting a second
opinion regarding Willis' condition. Id. at ¶ 48. In her
request, McCoy-Williams explained that Willis took off seven
weeks in June and July 2002 and had increased episodes of
absences. Def. Facts at ¶ 86. On January 31, 2003, Dr. Scott Kale
performed the second opinion examination. Id. at ¶ 87.
Also on January 31, 2003, Willis submitted a request for 30
days of FMLA leave because of her arthritis. Willis Facts at ¶
52. McCoy-Williams informed Willis only one day of leave would be
approved. Id. at ¶ 53. On February 1, 2003, Willis obtained a
doctor's note and FMLA certification form from Dr. Rosanova;
three days later, she submitted both forms to defendant. Id. at
¶¶ 54, 56. Dr. Rosanova reported Willis would need to miss work
as of January 31, 2003 because of "osteo긗꺙ꭨ arthritis"
and she would be re-evaluated in four weeks. Willis Facts Ex. K.
The certification form indicated Willis suffered from "ARITHIS OF
BACK. PERIOD OF INCAPATACY 2-4 PAIN ON MOVEMENT. LIMATATION OF
RANGE OF MOTION PEPTIC ULCE DISEASE CONFLICTS WITH TREATMENT OF
ARITHIC CONDITION SINCE SHE MUST STOP NASAIDS." Willis Facts Ex.
L. The form indicated the condition was chronic and permanent. In
response to the form's question seeking information on the
"likely duration and frequency of episodes of incapacity," the
form stated "UNABLE TO DETERMINE FREQUENCY DURATION HOWEVER
WILL BE OFF 2-4 DYS. PER EPOSIODE PER WK PER YR." Id. The form further indicated physical therapy and medication would
be required as treatment once a week for one year and that 24-30
treatments would be necessary. Id. The form asked, "will it be
necessary for the employee to take work only intermittently or to
work on a less than full schedule as a result of the condition?"
The response provided was "12-13-03," Id. The follow up
question asked, "if yes, give the probable duration;" the
response was "2-4 days." Id. The form asked whether Willis was
unable to perform work of any kind, or whether she was unable to
perform any one or more of the essential functions of her job.
Id. The answer was "No" to both questions. Id. The form asked
whether it was necessary for Willis to be absent from work for
treatment. The response was "Yes." Id.
On February 7, 2003, McCoy-Williams issued Willis a five day
absence notice. Willis Facts at ¶ 63. Willis received the notice
on Wednesday, February 12, 2003. Id. at ¶ 64. The notice
indicated McCoy-Williams had received a copy of Willis' February
4, 2003 FMLA certification form and doctor's note. Id. at ¶
65-66; Willis Facts Ex. M. The notice requested submission of the
original documents and stated "clarification" was needed
regarding the duration and frequency of her absences. Id.
Finally, Willis was informed failure to comply could result in
her discharge from the postal service. Id. Under the FMLA,
McCoy-Williams could have requested that a postal office doctor
contact Dr. Rosanova for purposes of clarifying Willis'
certification information. Id. at ¶ 69. McCoy-Williams did not
make such a request. Id. On February 18, 2003, McCoy-Williams
issued Willis a notice of removal. The notice informed Willis she
would be terminated effective April 9, 2003 because she had been
absent without official leave since February 1, 2003. Id. at ¶
71; Def. Facts at ¶ 90; Willis Facts Ex. O. Dr. Kale's January 31, 2003 second opinion examination
concluded Willis did not suffer from debilitating arthritis and
that she should continue working with reduced standing time and
permission to sit intermittently. Def. Facts at ¶ 87, Def. Facts.
Ex. 3-4. Neither Willis nor McCoy-Williams knew the results of
Dr. Kale's opinion before McCoy-Williams sent the notice of
removal. Willis Facts at ¶ 68. There was never a request for a
third medical opinion regarding Willis' condition. Id. at ¶ 70.
The effective date of Willis' termination was April 9, 2003.
Id. at ¶ 95.
I. Motion to Strike Evidence
Evidence submitted at the summary judgment stage must be
admissible at trial. Woods v. City of Chicago, 234 F.3d 979,
988 (7th Cir. 2000). The court must first determine the
admissibility of the evidence presented before reaching the
merits of the summary judgment motion. See Haywood v. Evergreen
Motor Cars, Inc., No. 02 C 6408, 2003 WL 21418248, at *1 (N.D.
Ill. June 18, 2003). Willis did not seek leave of court before
filing her motion to strike specific evidence. Nonetheless, the
court will address her motion.
Willis objects to defendant's submission of: (1) two documents
purportedly created by Dr. Kale regarding his examination of
Willis (Def. Facts Ex. 3-4); (2) a grievance summary which refers
to Dr. Kale's documents (Def. Facts Ex. 6); (3) two e-mails
involving Willis' leave (Def. Facts Ex. 9-10); and (4) any
references in the record to these exhibits. Willis contends the
evidence lacks authentication and is hearsay. In response,
defendant submits an affidavit and curriculum vitae from Dr. Kale
attesting he wrote and sent the challenged January 31, 2003 and
February 19, 2003 letters to Nurse Burtley (Def. Facts Ex. 3-4).
Defendant also submits an affidavit from McCoy-Williams,
attesting exhibits 9-10 attached to defendant's facts are true
and accurate copies of e-mails she authored and received regarding Willis' leave. Further, defendant
argues Willis too submits medical documentation purportedly
prepared by Dr. Rosanova without an affidavit, so these exhibits
should be stricken if the court grants Willis' motion, "not ...