The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Intervenor-plaintiff Renaee Henry ("Henry") has moved for
partial summary judgment pursuant to Fed.R.Civ.P. ("Rule") 56
as to her claim that PepsiAmericas, Inc. and Pepsi-Cola General
Bottlers, Inc. (collectively "Pepsi")*fn1 violated the
Family and Medical Leave Act of 1993 ("FMLA,"
29 U.S.C. §§ 2601-2654)*fn2 by failing to reinstate her employment after she returned from an
FMLA-entitled leave. Both parties have submitted statements of
material fact as called for by this District Court's LR
56.1.*fn3 Because Henry has not shown that she is entitled
to relief as a matter of law, her motion is denied.
Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant "must produce
more than a scintilla of evidence to support his position" that a
genuine issue of material fact exists (Pugh v. City of Attica,
259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific
facts that demonstrate a genuine issue of triable fact" (id.).
Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is
a summary of the relevant facts, viewed of course in the light
most favorable to nonmovant Pepsi.
Henry was hired as a dispatcher in the Conventional Sales
Department at Pepsi's 35th Street Distribution Facility
("Facility") in Chicago, Illinois in September 1999 (P. St. ¶ 8).
Within a few months of being hired, Henry also took on "payroll
functions" in addition to her dispatch responsibilities (H. St. ¶
9). Taken together, Henry's job duties included taking
attendance, correcting payroll discrepancies, sending hand-held
printers out for repair, acting as a liaison between other
employees and Pepsi's human resources department in matters of
leave and benefits, sending injured employees for drug testing
and assigning work to drivers, helpers and merchandisers (P. St.
¶ 17). That congeries of duties was apparently shared among
different positions at Pepsi's other three Chicago-area
distribution facilities, for none of those facilities employed a
conventional sales dispatcher (P. St. ¶ 23).
In May 2002*fn4 the Facility experienced a Teamsters labor
union strike (P. St. ¶ 60). Because that strike placed a significant financial strain on the Facility's operations,
Pepsi's Regional Manager Jeff Guzzarde ("Guzzarde") and Human
Resources Manager Rene Gibson ("Gibson") discussed the
implementation of cost-saving measures at the Facility (id.).
Although since February Guzzarde had also considered eliminating
positions in various Facility departments, including Conventional
Sales (P. St. ¶ 61), no position was formally eliminated at the
Facility before August (P. St. ¶ 62).
On August 1 Henry began a two-week leave of absence due to
stress and anxiety (H. St. ¶ 14). She gave Pepsi a note from her
physician Dr. William Crevier confirming her need for leave (H.
St. ¶ 14; P. Resp. ¶ 14). Upon learning that Henry had taken
leave, and understanding that her condition could qualify her for
FMLA leave, Gibson sent Henry an August 9 letter (H. Ex. 2)
together with Pepsi's standard form (H. Ex. 3) entitled "Employer
Response to Employee Request for Family or Medical Leave" (H. St.
¶ 19). Gibson's letter reads::
This letter is to advise you that Family Medical
Leave Act (FMLA) runs concurrently with Short Term
Disability (STD). Therefore, enclosed you will find
the appropriate FMLA documents [sic] please have your
physician complete them and return to my attention.
Pepsi required employees requesting FMLA leave to submit both a
medical certification and the standard form (P. St. ¶ 45), which
reads (H. Ex. 3):
You will be required to furnish medical certification
of a serious health condition. You must furnish
certification by ____ (insert date) (must be at least 15 days after
you are notified of this requirement) or we may delay
the commencement of your leave until the
certification is submitted.
Gibson did not otherwise inform Henry of the consequences of
failing to submit Pepsi's FMLA forms or medical certification.
Henry does not recall completing the FMLA form, but she "thinks
she sent the papers back" to Pepsi (P. St. ¶ 31). Henry did not
keep copies of the form for her records, she does not recall
asking her doctor to complete any forms and her doctors have no
record of having completed those forms (P. St. ¶¶ 33, 37, 42).
When Henry's leave commenced, Pepsi temporarily reassigned her
payroll duties to the Facility's Express Sales Secretary Vanessa
Faulkner ("Faulkner") (P. St. ¶ 54). Faulkner took about an hour
a week to perform those duties (P. St. ¶ 56). It is not clear who
performed Henry's dispatch duties in her absence.
When Henry returned from her leave of absence on August 15, she
resumed the duties associated with her dispatch position but did
not resume the payroll functions (P. St. ¶ 66). Gibson did not
restore the payroll functions because she believed that they had
contributed to Henry's stress (P. Resp. ¶ 35) and because she
realized that Faulkner's assumption of those duties gave Faulkner
"a full-time job" (H. St. ¶ 38). Despite the reduction in
responsibility, Henry's pay was not affected (id.)
After being told that her payroll duties were not being
restored, Henry complained to Gibson that she did not have enough work, claiming that her dispatch responsibilities occupied only
two to four hours each day (H. St. ¶ 33). As a result Gibson and
Guzzarde talked about eliminating Henry's position (H. St. ¶ 39.
Guzzarde also discussed with the Facility's Office Manager Sharon
Dellorta and the Conventional Sales Department's Sales Manager
Eric Johnson the possibility of other employees absorbing Henry's
duties. Guzzarde and Gibson then decided, in light of the
financial constraints facing the Facility, that Henry's position
should be eliminated, with her duties being absorbed by other
employees (H. St. ¶ 40; H. Ex. 9 at No. 4; P. Resp. ¶ 40). On
August 22 Gibson told Henry that the conventional dispatch
position was being eliminated, so that her employment was being
terminated effective immediately (H. St. ¶ 41).
Henry claims that the reduction of her responsibilities and the
consequent elimination of her position violated substantive
rights guaranteed her by the FMLA. In particular she asserts that
Pepsi violated Section 2615 (a) (1), which makes it "unlawful for
any employer to interfere with, restrain, or deny the exercise of
any right provided" by the FMLA.
At issue here are two substantive rights created by the FMLA.
First, it "provides eligible employees of a covered employer the
right to take unpaid leave for a period of up to twelve work
weeks in any twelve-month period for a serious health condition" (King v. Preferred Tech. Group, 166 F.3d 887
(7th Cir. 1999); Section 2612 (a) (1) (D)). And second, to
effectuate that guaranty the statute also provides that any
employee who takes such leave (Section 2614 (a) (1)):
shall be entitled, upon return from such leave
(A) to be restored by the employer to the position of
employment held by the employee when the leave
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms