The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Defendant
CCH, Inc. for summary judgment of the complaint of Plaintiff
Malinee Yindee. For the reasons set forth below, the motion is
Yindee is a former employee of CCH at its facility in
Riverwoods, Illinois. Her employment extended from January 17,
2000, until January 17, 2003. Sometime in 2000, Yindee was
diagnosed with endometrial cancer; she underwent a complete
hysterectomy to treat her condition. In approximately February
2002, as a result of periodic unexplained bouts of dizziness
(intermittent idiopathic vertigo), her physician instructed her
to stop driving while they continued. Although her job duties as a programmer analyst in CCH's human
resources department did not require her to drive, Yindee
commuted from her home in Rockford by car. In late March 2002,
after her doctor instructed her to stop driving, she requested
and received permission to telecommute (i.e., work from home) for
a threeweek period. At CCH, telecommuting is a voluntary
arrangement that may be terminated at any time by either CCH or
the employee. The responsibilities and duties of employment are
the same whether an employee works on-site or telecommutes.
The telecommuting application Yindee submitted specified that
she would work online (i.e., while remotely connected to CCH's
network) for 5-6 hours per day. The remainder of her 8-hour
workday could be spent offline.*fn1 After the initial
three-week period, Yindee continued to telecommute once or twice
a week until July 1, when Ken Tennant, Yindee's supervisor,
terminated her telecommuting privilege citing performance
problems. Rather than addressing the issue with Tennant, Yindee
complained to Zrinka Allen, a human resource department employee
who reported to the same supervisor as Tennant did, Sue Mullin.
This in turn sparked several meetings between various
combinations of Yindee, Allen, Tennant, and Mullin. In early
August, Tennant again told Yindee that her job performance was becoming
unsatisfactory and that she needed to complete outstanding
projects. On August 15, 2002, Yindee filed a written grievance
against Tennant for terminating her telecommuting.
From early August into September, Tennant continued to find
fault with Yindee's job performance. On September 17, 2002,
Yindee filed a charge with EEOC, alleging Tennant was
discriminating against her because of her race, sex, religion,
national origin, and age. Nine days later, on a Thursday
afternoon, Tennant and Allen met with Yindee regarding the
ongoing issues Tennant had identified in her job performance. At
that meeting, Yindee was given a verbal warning about addressing
these issues and was informed that she would receive a written
warning the following week. She was also told that she would be
placed on a performance improvement plan. Although the record is
not entirely clear on what Yindee was told, it is apparent that
the problems were described in some detail.
The following day, a Friday, Yindee contacted Tennant and
informed him that she would be taking off the next Monday and
Tuesday from work. On Monday, she remitted a note from her
physician recommending that she take a short leave of absence.
She was permitted to take leave pursuant to the Family Medical
Leave Act ("FMLA") from September 30, 2002, until January 2,
2003. On December 12, 2002, while still on FMLA leave, Yindee filed
another charge with the EEOC, this time claiming discrimination
on the basis of disability. She specified that the disability in
question was her endometrial cancer.
On January 2, Yindee returned to work. That day, Tennant gave
her a written copy of her performance improvement plan. It
informed her that she was on a 30-day probation period, during
which she was to improve the quality of her work, her knowledge
of software used at CCH, problem-solving skills, her manner of
requesting paid time off, and her behavior toward coworkers and
Tennant. She was informed that repetition of the identified
behavior within the 30-day period could lead to action including
Two weeks later, Yindee and Tennant engaged in an email
exchange regarding one of Yindee's ongoing projects. Yindee
indicated that she was having problems with the software she used
to complete the project and asked Tennant if she needed his
approval before contacting the software company directly. In
examining the specific problems she identified, Tennant
discovered that they were caused by Yindee's errors, rather than
bugs in the underlying program. Because he had specified this
type of activity as indicative of deficient problem-solving
skills in the past, he concluded that Yindee had not complied
with the requirements of the performance improvement plan. He met with Allen and Mullin, and the decision was made to
terminate Yindee's employment. The decision was carried out the
following day, January 17.
On January 23, Yindee filed another charge with EEOC and IDHR,
claiming that her termination was in retaliation for her December
12 charge of disability discrimination. After receiving a
right-to-sue letter, she filed this case, alleging violations of
the ADA, the FMLA, Title VII, and the Employee Retirement Income
Security Act ("ERISA").
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). The moving party bears the initial burden of showing that
no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548 (1986). The burden
then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which
the nonmovant bears the burden of proof at trial. Id. The
nonmovant may not rest upon mere allegations in the pleadings or
upon conclusory statements in affidavits; it must go beyond the
pleadings and support its contentions with proper documentary
evidence. Id. 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."
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.
2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986). With these principles in mind, we turn
the motion before us.