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September 22, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiff Bernita Artis worked as a certified nursing assistant for Palos Community Hospital until a wrist injury rendered her temporarily unable to continue. She continued for several months on light duty but was not able to obtain another permanent position with the hospital and was discharged in December 2000. In this lawsuit, Artis alleges that her termination was in violation of the Family & Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and that she was discharged in retaliation for having filed an application with the Illinois Industrial Commission, i.e., a worker's compensation claim. Defendant moves for summary judgment, arguing that the undisputed facts show that there was no violation of the FMLA and that her discharge was unrelated to her filing of a workers' compensation claim. For the reasons discussed below, the court grants summary judgment in favor of Defendant.


  Plaintiff was hired by the Defendant, Palos Community Hospital, as a certified nursing assistant in March of 1999 and worked there until December of 2000. (Defendant's Statement of Material Facts (hereinafter, "Def.'s 56.1") ¶ 4.) On June 27, 2000, Plaintiff injured her left wrist while attempting to prevent a patient from falling out of bed. (Id. ¶ 5; Plaintiff's Statement of Additional Material Facts (hereinafter, "Pl.'s 56.1 Stmt.") ¶ 4.) Following instructions from the charge nurse, Plaintiff went to the Hospital's emergency room, where she was diagnosed with inflammation and swelling. (Pl. 56.1 Stmt. ¶ 13; Def.'s 56.1 ¶ 6.) Plaintiff took at least three days off work to recover from the injury and then returned to work in the Hospital's Human Resources Department on temporary limited duty ("TLD") on July 5, 2000. (Pl.'s 56.1 Stmt. ¶ 9; Def.'s 56.1 ¶ 7.)

  Plaintiff contends that on July 5, 2000, she informed Dorothy Morande of Employee Health Services that she was not fully recovered from her injury and needed more time off, but Ms. Morande responded that if Plaintiff did not start TLD she would lose her job. (Plaintiff Aff. ¶ 13, Ex. 17 to Pl.'s 56.1 Stmt.) The Hospital denies this conversation ever took place, noting that in her own deposition, Plaintiff testified she was put off work for three days until she saw Ms. Morande, but then corrected herself and said it was actually someone named "Judy" with whom she met. (Defendant's Response to Plaintiff's Statement of Additional Material Facts (hereinafter, "Def.'s Resp.") ¶ 15; Plaintiff Dep., at 47.) In her testimony, Plaintiff made no mention of an ultimatum issued by anyone at the Hospital.

  Plaintiff also argues that she was never given information as to her FMLA leave rights and was never advised that TLD was voluntary or that it was in lieu of FMLA leave. (Plaintiff Aff. ¶ 16, Ex. 17 to Pl.'s 56.1 Stmt.) The parties agree that Plaintiff was given some information concerning the nature of the TLD program, specifically a handout entitled "Temporary Limited Duty, Your Questions Answered," and a "Statement of Policy" relating to TLD. (Plaintiff Dep., at 50-52; Def.'s 56.1 ¶ 8.) The policy statement explains that "[i]f an employee elects not to return to the TLD assignment, available vacation and holiday hours will be paid, but the employee will not be eligible for Worker's Compensation or sick time benefits. . . . If the employee's position has been filled when the employee is cleared for regular duties, every effort will be made to assist the employee to find a suitable position." (Statement of Policy, Ex. 4 to Plaintiff Dep., at 1, 2.) The stated purpose for the policy is "[t]o provide a program through which an employee who is temporarily disabled can readjust to the working environment" while working in some capacity until he or she is able to resume his or her job. (Id. at 1.) The policy statement also refers to the FMLA, explaining that "an employee who qualifies under the [FMLA] . . . will be given job protection of twelve weeks from the last day worked in his/her regular position." (Id. at 2.)

  Plaintiff claims that the employee handbook is silent on the matter of FMLA rights, but the court notes that the handbook does address the matter, explaining in the Leave of Absence section that if "your leave qualifies under the [FMLA], job protection of 12 weeks per year will be provided. This means that, on return from leave within this period, you will be restored to the position you held or an equivalent position." (Employee Handbook, Ex. 8 to Pl.'s 56.1 Stmt., at 24.) Plaintiff also claims that the Hospital's Employee Handbook, FMLA poster, Leave of Absence Policy 951.412, and TLD notice all fail to inform employees that light duty work is in lieu of FMLA leave and voluntary. (Pl.'s 56.1 Stmt. ¶ 32; Ex.'s 7-10, 12 to Pl.'s 56.1 Stmt.) Defendant denies this assertion in part, pointing out that the pages from the employee handbook cited by Plaintiff do discuss FMLA leave. The Department of Labor poster used by Defendant is a government form; it makes no mention of the relationship between TLD and FMLA leave. (Ex. 12 to Pl.'s 56.1 Stmt.) Defendant specifically denies that assignment to TLD is involuntary, and notes that the TLD policy explicitly states that employees may choose not to return to light duty, at the price of losing eligibility for worker's compensation or sick time benefits.*fn1 (Def.'s Resp. ¶ 32; Statement of Policy, Ex. 4 to Plaintiff Dep.) The TLD policy also states that if the employee's position has been filled when he or she is "cleared for regular duties, every effort will be made to assist the employee to find a suitable position." (Statement of Policy, Ex. 4 to Plaintiff Dep.) Defendant contends that employees are given a choice between FMLA leave and TLD, and inevitably choose light duty because it allows them to continue making money while they recover from their injury/illness. (Def.'s Resp. ¶ 29.) Defendant has provided no evidence to support this contention besides the statement of William Cleary, Director of Human Resources at the Hospital, who declared that an employee in the Plaintiff's position "has a choice between temporary limited duty . . . and a leave of absence . . . one or the other." (Id.; Cleary Dep., at 33.) In asserting that employees are given a choice, Cleary does not specify how employees were expected to know about this choice, and does not state that Plaintiff herself was given full information about the two options. There is also no evidence demonstrating how many employees were offered a choice between FMLA leave and TLD, and voluntarily chose light duty.

  As a result of her wrist injury, Plaintiff underwent surgery on September 8, 2000 and was again forced to miss at least three days of work. (Pl.'s 56.1 Stmt. ¶¶ 5, 10.) At the time of both the June accident and the September surgery, Plaintiff had worked more than 1,250 hours in the preceding twelve-month period. (Id. ¶¶ 7-8.) When sufficiently recovered from the surgery, Plaintiff returned to TLD work in the Human Resources Department until she was placed on job search leave of absence in November of 2000. (Def.'s 56.1 ¶ 14.) Plaintiff admits that she never requested any other leave of absence and never requested FMLA leave. (Id. ¶ 23; Plaintiff Dep., at 69.)

  In a memorandum dated August 28, 2000, Dorothy Morande informed Plaintiff that her job protection would end on September 20, 2000 and that her nursing position might be filled. (Id. ¶ 10, Ex. 5 to Plaintiff Dep.) Plaintiff admits that she was aware throughout the fall of 2000 that she was expected to look for alternate employment at the Hospital. (Def.'s 56.1 ¶ 11; Plaintiff Dep., at 55-56.) Plaintiff continued to work in the TLD program through the fall until November 14, when she was sent another memorandum from Dorothy Morande informing her that, because she had been cleared for work effective on November 20, she would need to start looking for another job in the Hospital on November 21. (Def.'s 56.1 ¶ 12; Ex. 6 to Plaintiff Dep.) The letter also advised her that if she were unable to find a new position by December 15, her employment with the hospital would cease. (Def.'s 56.1 ¶ 13; Ex. 6 to Plaintiff Dep.) Because Plaintiff's original nursing job had been filled, she was placed on job search leave of absence on November 21 while she searched for a replacement position. (Def.'s 56.1 ¶ 14; Pl.'s 56.1 Stmt. ¶ 34.) As of November 21, Plaintiff had worked 1,159 hours in the previous twelve months and was fully able to return to her original nursing duties. (Def.'s 56.1 ¶¶ 15, 25.) Plaintiff never returned to her original certified nursing assistant job at the hospital. (Id. ¶ 9.)

  The Hospital does not ordinarily advise employees on a job search leave of absence about any job openings; instead, the employee has the responsibility of seeking out and applying for such positions on her own. (Id. ¶ 20.) Job openings are posted on a cafeteria bulletin board, and employees apply by placing bids on vacant positions. (Id.) While on her job search leave of absence, Plaintiff put in a written job bid for a Phlebotomist position and a Home Health Care Assistant position, and claims to have orally requested numerous other positions. She was not interviewed or hired for any of these slots. (Pl.'s 56.1 Stmt. ¶ 19.)

  Plaintiff wrote to the Hospital sometime in December, stating that she would be returning to work on December 15. (Def.'s 56.1 ¶ 18; Ex. 7 to Plaintiff Dep.) Plaintiff testified that in writing the letter, "I followed all the [Hospital's] instructions. I just wanted to know what my status was at work. I hadn't found anything within the hospital." (Def.'s 56.1 ¶ 19; Ex. 7 to Plaintiff Dep.) On December 16, 2000, Ellen Disbrow from Human Resources wrote Plaintiff to inform her that because her "job search leave of absence had reached the maximum of four weeks," and she had failed to find another position at the Hospital, her employment at the hospital would be terminated. (Ex. 8 to Plaintiff Dep.; Def.'s 56.1 ¶ 20.)

  Just two weeks earlier, on December 1, 2000, Plaintiff had filed an Application for Adjustment of Claim with the Illinois Industrial Commission, seeking compensation for the June work accident. (Pl.'s 56.1 Stmt. ¶ 35; Def.'s 56.1 ¶ 16.) Mr. Cleary claims that the Hospital did not receive notice of the application until December 8, 2000. (Def.'s 56.1 ¶ 16; Cleary Decl. ¶ 7.) As a result of the application, on September 18, 2001, Plaintiff received a settlement on the worker's compensation claim of $7,449, after deduction of attorney's fees. (Def.'s 56.1 ¶ 17; Plaintiff Dep., at 67.) Plaintiff alleges her termination was, at least in part, retaliation for having filed this claim. (Compl. ¶ 13.)

  In her deposition, Plaintiff's stated reasons for suing the Hospital under the FMLA are, "I believe if I had that protection [FMLA job protection], I would have my job. My job would have been secured." (Def.'s 56.1 ¶ 23; Plaintiff Dep., at 69.) Plaintiff admits that she never specifically requested FMLA leave, but does contend that she asked for time off to recover from both the June accident and the September surgery. (Plaintiff Dep., at 69; Pl.'s 56.1 Stmt. ¶¶ 13-14.) Defendant denies that Plaintiff ever asked for "leave," noting that she was off work for just three days following the wrist injury. (Def.'s Resp. ¶¶ 13-14.) In her affidavit, Plaintiff also contends that Mr. Cleary told her she could come back to work, and that it was her understanding she would be returned to her nursing job after she was released to full work by her doctor. (Plaintiff Aff. ¶¶ 15, 17.) Defendant argues that Plaintiff was fully aware that her nursing job would be filled after September 20. (Def.'s Resp. ¶ 17.) Plaintiff finally contends that department supervisors at the Hospital are trained to tell an employee that she may be eligible for FMLA leave if advised by the employee of a potential FMLA qualifying event, but that her own supervisors failed to advise Plaintiff of her FMLA eligibility. (Pl.'s 56.1 Stmt. ¶ 23; Cleary Dep., at 10-11.) According to Defendant, the Hospital does not actively seek out FMLA-eligible individuals, but supervisors are instructed "under family ...

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