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June 16, 2005.


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 granted.


  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 termination.

  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.


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