United States District Court, N.D. Illinois, Eastern Division
YOLANDA WILLIS, Plaintiff,
UNITED STATES POSTAL SERVICE, Defendant.
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 that
we think [sic] it necessary in either event." The motion to
strike is denied. Defendant has cured the deficiencies of its
submitted evidence by providing affidavits to authenticate the
exhibits and satisfy the personal knowledge requirement of
Fed.R. Civ. P. 56(e).
II. Summary Judgment Standards
On cross-motions for summary judgment, each movant must satisfy
the requirements of Rule 56. EEOC v. Admiral Maint. Serv.,
L.P., No. 97 C 2034, 1998 WL 102748, at * 6 (N.D. Ill. Feb. 26,
1998). Summary judgment is appropriate when the moving papers and
affidavits show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once a moving party meets its burden, the non-moving
party must go beyond the pleadings and set forth specific facts
showing there is a genuine issue for trial. Fed.R. Civ. P.
56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir.
1999). The court considers the record as a whole and draws all
reasonable inferences in the light most favorable to the party
opposing the motion. Bay v. Cassens Transport Co.,
212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists
when "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
III. Violation of FMLA
The FMLA applies to employers that employ fifty or more people
and engage in interstate commerce. 29 U.S.C. § 2611(4). An
employee who has been employed for at least 12 months and who has worked at least 1250 hours during the previous 12 month
period is considered eligible for FMLA leave.
29 U.S.C. § 2611(2). Under the FMLA, an eligible employee who is unable to
perform her job due to a serious health condition is entitled to
twelve work weeks of leave. 29 U.S.C. § 2612(a)(1)(D).
Employers may not "interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided" under
the FMLA. 29 U.S.C. § 2615(a)(1). However, an employer may
require that leave requested under § 2612(a)(1)(D) "be supported
by a certification issued by the health care provider of the
eligible employee." 29 U.S.C. § 2613(a). The Department of Labor
has developed Form WH-380, an optional form for obtaining medical
certification from health care providers.*fn2 An employer is
not required to use Form WH-380; however, if the form is used "no
additional information may be required." 29 C.F.R. § 825.306(b).
The employer must advise an employee whenever the employer finds
a certification incomplete, and provide the employee a reasonable
opportunity to cure any deficiency. 29 C.F.R. § 825.305(d). "If
an employee submits a complete certification signed by a health
care provider, the employer may not request additional
information from the employee's health care provider. However, a
health care provider representing the employer may contact the
employee's health care provider, with the employee's permission,
for purposes of clarification and authenticity of the medical
certification." 29 C.F.R. § 825.307(a).
An employer may request a second opinion if it doubts the
health care provider's opinion. 29 U.S.C. § 2613(c). A binding
third opinion must be obtained to resolve a conflict between the
first and second opinions. 29 U.S.C. § 2613(d); Stoops v. One Call
Communs., 141 F.3d 309, 311-12 (7th Cir. 1998).
IV. The Summary Judgment Cross Motions
A. Willis' Motion for Partial Summary Judgment
Willis seeks partial summary judgment on liability, and
requests a trial as to damages. Willis alleges defendant violated
her substantive FMLA rights by: (1) requesting her to clarify the
duration and frequency of her absences despite her submission of
a complete certification form; (2) failing to allow her at least
15 days or a reasonable time to provide clarification before
issuing her a notice of removal and terminating her employment;
and (3) failing to follow proper procedures for requesting
clarification of her medical condition. To prevail on her FMLA
claim, Willis must first prove: (1) she was an eligible employee
under the FMLA, 29 U.S.C. § 2611(2);(2) defendant was an employer
covered by the FMLA, 29 U.S.C. § 2611(4); and (3) she was
entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1). King
v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999);
Smith v. Univ. of Chicago Hosp., No. 02 C 0221, 2003 U.S. Dist.
LEXIS 20965, * 15-16 (N.D. Ill. Nov. 20, 2003). Defendant admits
Willis was an eligible employee under the FMLA and that it is an
employer covered by the FMLA. Def. Resp. Willis Facts at ¶¶ 5-6.
There is a factual dispute regarding Willis' entitlement to FMLA
Willis asserts her chronic arthritis constitutes a serious
medical condition under the FMLA. 29 U.S.C. § 2612(a)(1)(D). The
FMLA's legislative history includes severe arthritis in a list of
covered health conditions. S.Rep. No. 3, 103d Cong., 1st Sess.
1993, 1993 U.S.C.C.A.N. 3, at 26-27. The regulations to the FMLA
provide more detail regarding qualifying medical conditions.
29 C.F.R. § 825.114. Specifically, "serious medical conditions" may
include a chronic physical condition that: (1) involves periodic visits to a health care
provider; (2) continues over an extended period of time; and (3)
may cause episodic rather than continuing periods of incapacity.
Id., at (a)(2)(iii). Willis has sufficiently demonstrated she
suffers from a serious medical condition. The undisputed evidence
establishes she has obtained multiple physician's notes
diagnosing her condition as chronic arthritis, she has visited
her physician for the arthritis condition on multiple occasions
over a period of time, and she has had periods of incapacity.
See e.g., Willis Facts at ¶¶ 32-35; Exs. H-I, K-L. Defendant
does not dispute these absences or that Willis has attributed
them to arthritis. Instead, defendant submits the second opinion
report of Dr. Kale, which concluded Willis does not have
arthritis. In his letter to defendant, Dr. Kale repeatedly
asserted that Willis' condition was "non-arthritic." Def. Mem.
Ex. 4. Dr. Kale concluded Willis needed to be reevaluated for
"thyroid dysfunction" and that she had "patellofemoral
dysfunction with secondary foot and hip compensatory arthalgias
or myalgias." Id. There is no record evidence establishing
these conditions constitute serious health conditions.
There is a material issue of fact as to whether Willis has a
serious medical condition covered by the FMLA. Because Willis
must first prove her entitlement to FMLA leave before she can
prevail on her cause of action, the court need not reach Willis'
additional arguments for summary judgment. Willis' motion for
summary judgment on liability must be denied.
B. Defendant's Cross-Motion for Summary Judgment
Defendant alleges it is entitled to summary judgment because
Willis did not suffer from a serious health condition covered by
the FMLA. Further, defendant alleges it complied with the FMLA
when it relied upon the second opinion examination and requested
additional medical documentation from Willis. Finally, defendant asserts Willis
failed to provide the necessary medical documentation despite
ample opportunity to do so.
Serious Health Condition
Defendant argues Willis does not have a serious health
condition covered by the FMLA because Dr. Kale concluded she did
not suffer from arthritis and was not required to miss work. As
previously discussed, this argument is rejected because there is
a disputed issue of fact as to whether Willis had arthritis.
Defendant further argues Willis' February 4, 2003 certification
form did not justify her January 31, 2003 request for thirty days
of leave because section 7 of the form, is the "employee unable
to perform work of any kind?" was answered "No." Further, section
8 of the form, "if able to perform some work, is the employee
unable to perform any one or more of the essential functions of
the employee's job?" was also answered "No."
To be eligible for leave under § 2612 (a)(1)(D), Willis must:
(1) have a serious health condition; and (2) that condition must
prevent her from performing her job. However, leave under §
2612(a)(1)(D) may be taken "intermittently or on a reduced leave
schedule when medically necessary." 29 U.S.C. § 2612(b)(1). The
regulations recognize that some serious health conditions may be
chronic, causing the employee "episodic incapacity" rather than a
continuous incapacity. 29 C.F.R. § 825.114(a)(2)(iii)(C); Stoops
v. One Call Communs., 141 F.3d 309, 311-312 (7th Cir. 1998).
While the certification form did answer "No" to two questions
regarding ability to work, the answer "Yes" appeared in response
to the question regarding her need to be absent from work for
treatment. Further, sections 5 and 6 of the form, clarity aside,
did indicate a need to miss work on an intermittent basis. If
answering "No" to the questions regarding ability to work
automatically precluded FMLA coverage, an employee needing intermittent leave
might always be precluded from FMLA protection. For instance, an
employee with cancer may need intermittent leave for
chemotherapy. See e.g., 29 C.F.R. § 825.203(c)(1). An
unequivocal answer "Yes," that she is unable to perform work of
any kind or is unable to perform one of the essential functions
of her position, might inaccurately reflect her needs. While
there may be times she is unable to work due to intermittent
incapacitation, it may not be true at all times. Under
defendant's narrow logic however, answering "No" would preclude
FMLA eligibility. Viewing Willis' form in its entirety, and
drawing all reasonable inferences in her favor, the form supports
her claim for leave based on a serious health condition.
Defendant argues it is entitled to summary judgment because it
may rely on Dr. Kale's opinion that contradicted Willis' need for
leave. While an employer may request a second opinion if it
doubts the opinion of the employee's health care provider,
29 U.S.C. § 2613(c), defendant did not request a second opinion
regarding Willis' January 2003 request for leave. The evidence
demonstrates McCoy-Williams sought a second opinion on December
12, 2002, two days after Willis requested a temporary light duty
assignment. McCoy-Williams requested a second opinion to clarify
information provided in Willis' previously submitted
certifications. McCoy-Williams Dep. at 34-37, 43-45. With respect
to the documentation submitted in January 2003, however,
defendant did not seek a second opinion.
Although the results of Dr. Kale's examination were apparently
sent to defendant on January 31, 2003, with a follow-up letter to
Nurse Burtley on February 19, 2003, there is no record evidence establishing the results of the opinion were considered when
defendant issued Willis the five day request or notice of
removal. The parties' debate regarding the relevance of
McCoy-Williams' state of mind misses the mark. Defendant may not
obtain summary judgment by arguing it relied on a valid, properly
obtained second opinion in denying Willis leave and issuing her
discipline, when there is no record evidence to support this
assertion. Finally, even if defendant could establish it relied
on the second opinion, it did not obtain a third opinion as a
tie-breaker. The FMLA and defendants' policies provide a second
or third opinion examination may be obtained when employers doubt
the opinion of a health care provider. 29 U.S.C. § 2613(c)-(d);
Willis Facts at ¶ 14, Willis Facts Ex. E. A third opinion is
required if the first and second opinions contradict one another.
Stoops v. One Call Communs., 141 F.3d 309, 311-12 (7th Cir.
Defendant also argues summary judgment is appropriate because
Willis failed to submit acceptable documentation supporting her
need for leave, despite sufficient opportunity to do so.
Defendant argues Willis' documentation was incomplete regarding
the frequency and duration of her absences and was peppered with
misspelled words, requiring her to cure the deficiencies.
29 C.F.R. § 825.305(d). Willis argues the documentation was
complete, as evidenced by the five day notice's request for
"clarification" only, and defendant was not entitled to more
information. Further, Willis contends defendant could only obtain
clarification of her completed forms by having defendant's health
care provider contact Dr. Rosanova, with her permission.
29 C.F.R. § 825.307(a). Finally, Willis argues defendant only gave
her five days to cure the alleged deficiencies, as opposed to 15
days or a reasonable period of time.
The court need not decide whether the February 4, 2003
certification was complete or incomplete. If the form was
complete, defendant did not properly seek clarification as
provided by 29 C.F.R. § 825.307(a). Defendant did not have one of its
representatives contact Dr. Rosanova with Willis' permission. If
the form was incomplete, there is a question of fact as to
whether defendant provided Willis 15 days or a reasonable time to
cure the deficiencies. Defendant admits its FMLA policy provides
employees 15 days to resubmit FMLA certification forms if
clarification is needed. Def. Resp. Willis Facts at ¶¶ 13, 30.
Willis was issued a five day absence notice on Wednesday,
February 12, 2003. Defendant issued the notice of removal six
days later, Tuesday, February 18, 2003, indicating Willis would
be terminated effective April 9, 2003. Defendant argues Willis
actually had 56 days to submit additional documentation because
her termination was not effective until April 9, 2003. However,
the notice of removal did not state Willis would not be
terminated if she provided more documentation. Rather, Willis was
given notice of her removal because she failed to provide
additional documentation supporting her leave within the period
required by the five day absence notice. Specifically, the notice
of removal stated:
You are hereby given not less than thirty (30) days
advance written notice of your removal from the
Postal Service. The reason(s) for this removal action
are . . . [y]ou have been absent from your scheduled
tour of duty at AMC O'Hare Post Office without
permission (AWOL) since February 1, 2003, and have
not returned to duty or provided acceptable
substantiation for your absences as of this date. On
February 7, 2003, you were sent a certified letter
that you received on February 12, 2003, which
informed you that the reason for your absence must be
substantiated . . . As of February 18, 2003, you have
not responded to the provisions of that letter.
The notice specified Willis' rights to file a grievance and, if
her grievance was granted, her remedies in the event she made a
reasonable effort to obtain other employment. Viewing all
reasonable inferences in Willis' favor, the notice does not
conclusively support defendant's argument that Willis had the
entire period to save her job by providing documentation. Rather,
the notice appears to announce a final decision. There are questions of material fact regarding whether Willis'
absences were protected by the FMLA, whether her certification
forms satisfied FMLA requirements and whether defendant provided
her with a reasonable time to cure any alleged deficiencies.
Defendant's motion for summary judgment must be denied.
Plaintiff's motions to strike and for partial summary judgment,
and defendant's cross-motion for summary judgment are denied.