United States District Court, N.D. Illinois, Eastern Division
June 21, 2005.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff. RENAEE N. HENRY, Intervenor-Plaintiff,
PEPSIAMERICAS, INC., et al., Defendants.
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.
Rule 56 Standards
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's FMLA Claim
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, 891
(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
and conditions of employment.
Henry argues that she was entitled to FMLA leave and that Pepsi's
elimination of her position following that leave denied her the
right to reinstatement.
For its part, Pepsi initially urges that the facts do not show
Henry was entitled to FMLA leave in the first instance. But even
if her leave was FMLA-qualified, Pepsi argues that Henry was not
entitled to reinstatement because her position would have been
eliminated regardless of whether she took FMLA leave. This
opinion considers those arguments in turn.
Henry's Entitlement to FMLA Leave
As already indicated, Pepsi contends that Henry was not
entitled to FMLA leave and that its protections do not apply
because Henry never "requested or sought FMLA leave" (P. Mem. 6)
and, in that respect, that she did not return the medical
certification form Pepsi required of employees requesting leave under the FMLA. But that argument ignores both FMLA regulations
and well-established caselaw to the contrary.
To be eligible for leave under Section 2612(a) (1) (D) an
employee must have a "serious health condition" that prevents her
from performing her job (Stoops v. One Call Communications,
Inc., 141 F.3d 309, 312 (7th Cir. 1998)). Pepsi does not dispute
that Henry had such a condition it argues instead that Henry
had an obligation to notify it that she was taking leave under
the FMLA. Not so: It is not an employee's duty to designate her
requested leave as FMLA-qualified, nor need she even mention the
statute (29 C.F.R. § 825.303(b)).*fn5 Indeed, "the employee
can be completely ignorant of the benefits conferred by the Act:
it is sufficient notice if the employee provides the employer
with enough information to put the employer on notice that
FMLA-qualifying leave is needed" (Stoops, 141 F.3d at 312). Dr.
Crevier's note, received by Pepsi on August 3, undoubtedly put
Pepsi on such notice (H. Ex. 1):*fn6 Mrs. Henry has severe anxiety and needs to be off
work for at least one week beginning 8/1/02 through
8/11. If better she can return on 8/11.
Henry's failure to invoke the FMLA in notifying Pepsi of her need
for leave is therefore of no consequence.
Pepsi then argues that Henry was not entitled to FMLA leave
because she failed to submit medical certification of her
FMLA-qualifying condition. True enough, an "employer may require
certification from the employee's physician (or other health care
provider) that the employee indeed has such a condition" (Rager
v. Dade Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000);
Section 2613 (a)). But if the employer does so require, it must
grant the employee 15 calendar days in which to submit the
certification and must "notify the employee promptly and in
writing of the 15 day deadline and of the consequences of not
complying with it" (Rager, 210 F.3d at 777; Reg. §§ 825.301 and
Pepsi notified Henry of its certification requirement in an
August 9 letter. Henry therefore had until August 24 to provide
such certification. But she was terminated before that on
August 22. Pepsi cannot contend in good conscience that Henry's
failure to submit the certification bears on whether her leave
was FMLA-qualified. Moreover, Pepsi's related assertion that
"there is no evidence that Henry was prejudiced in any way" (P.
Mem. 8) by its failure to allow her the requisite 15 days has no
basis in the statute, regulations or relevant caselaw. Because then Pepsi was on notice that Henry needed
FMLA-qualifying leave, and because it did not allow her
sufficient time to submit the certification it required for such
leave, Henry was entitled as a matter of law to FMLA leave and
its associated protections. That leads to consideration of
Pepsi's second defense to Henry's claim.
Henry's Entitlement to Reinstatement
At its core, Henry's FMLA claim is that she was denied her
statutory right to reinstatement when Pepsi reinstated her only
to a partial position and then terminated her because that
position was not full-time. While the parties treat as separate
issues Henry's reinstatement to a position with reduced
responsibility and her termination a week later, those events
were, as Henry says, "inextricably linked" (H. Mem. 11). This
opinion will treat them as such, for Henry's real quarrel is not
with Pepsi's failure to restore her payroll functions but with
its elimination of her position. On that score Pepsi argues that
it did not deny Henry any FMLA-guaranteed rights upon her return
from leave because she would not have been entitled to the
benefit she claims reinstatement to the conventional dispatch
position regardless of whether she took FMLA leave.
Generally when an employee alleges a deprivation of FMLA's
substantive guaranties, she need only demonstrate by a
preponderance of the evidence her entitlement to the benefit she claims (Diaz v. Ft. Wayne Foundry Corp., 131 F.3d 711, 713 (7th
Cir. 1997)). Having established her entitlement to FMLA leave,
Henry observes correctly that she is entitled to reinstatement to
the extent the FMLA guarantees it.
But the FMLA-guaranteed right to reinstatement is not absolute
(Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th
Cir. 2001)). Section 2614 (a) (3) (B) specifies:
Nothing in this section shall be construed to entitle
any restored employee to
* * *
(B) any right, benefit, or position of employment
other than any right, benefit, or position to which
the employee would have been entitled had the
employee not taken the leave.
Thus an employer does not infringe any FMLA-guaranteed rights by
firing an employee who would have been terminated regardless of
whether she took FMLA leave.
Hence the relevant question in denial-of-reinstatement cases
centers on "why the employee was not reinstated" (Kohls,
259 F.3d at 805). Where as here an employee establishes by a
preponderance that she is entitled to reinstatement under the
FMLA, "[t]he employer may then present evidence to show that the
employee would not have been entitled to her position even if she
had not taken leave" (Kohls, 259 F.3d at 804). Pepsi argues
that Henry's termination was a cost-saving measure unrelated to
her FMLA leave, and it points to a number of facts in support of
Pepsi first points out that for some six months before Henry's
termination Guzzarde had explored the possibility of eliminating
various positions (including Henry's) at the Facility. Henry also
admits that Gibson and Guzzarde discussed various cost-saving
measures before and after the costly May 2002 Teamsters strike at
the Facility. Only the Facility, among Pepsi's four Chicago-area
distribution facilities, employed a conventional dispatcher at
the other three, managers performed conventional dispatch duties
(P. St. ¶ 22, 23). And it is undisputed that after Henry's
termination she was not replaced her duties were rather
absorbed by existing Pepsi employees. All of those facts tend to
support Pepsi's assertion that at least in prima facie terms
Henry was not entitled to the conventional dispatch position upon
her return from FMLA leave, because it proffered a threshold
showing of a legitimate economic reason for eliminating that
position unrelated to that leave.
After an employer has thus presented evidence to show the
employee would not have been entitled to the position in any
event, the employee must overcome that assertion, "as she carries
the burden of demonstrating her right to the entitlement"
(Kohls, 259 F.3d at 804). Henry musters two arguments in an
attempt to do so. But neither establishes her entitlement to the
conventional dispatch position as a matter of law. First Henry observes that the timing of Pepsi's actions and its
own admissions demonstrate that her payroll functions were
reassigned to Faulkner as a direct result of her leave. She
argues that Pepsi thus cannot show it would have taken that
action, which ultimately resulted in the elimination of her
position, had she not taken FMLA leave. But while it is
undisputed that Henry's leave prompted the temporary reassignment
of her payroll functions, the decisions to make that reassignment
permanent and then to eliminate Henry's part-time conventional
dispatch position were according to Pepsi, whose assertion must
be credited in the present Rule 56 context made because the
temporary reassignment enabled Gibson and Guzzarde to realize
that the conventional dispatch position was unnecessary.
Kohls addressed an analogous situation in which an employer
did not discover deficiencies in an employee's work until after
the employee took leave. Confronted with the argument that the
timing of the employer's actions demonstrated that the employee's
termination would not have occurred absent the leave, Kohls,
259 F.3d at 806 held "[t]he fact that the leave permitted the
employer to discover the problems cannot logically be a bar to
the employer's ability to fire the deficient employee." So too,
if Pepsi's version of events is credited, the fact that Henry's
FMLA leave allowed Pepsi to discover that her duties were easily
absorbed by other employees should not be a bar to what would be Pepsi's otherwise legitimate personnel decision.
Next Henry attacks the sufficiency of Pepsi's evidence as to
its reasons for her termination. She claims that she was
terminated "simply because her position no longer [was] full
time" (H. Mem. 12), arguing that Pepsi didn't have a legitimate
reason for terminating her because it has not been able to
produce evidence of pressing budget constraints at the Facility
in 2002 or evidence of any corporate directives regarding
layoffs, reductions in force or streamlining at the Facility. But
it must be remembered that for Rule 56 purposes Pepsi's version
must be credited, so that it cannot be held that a factfinder
would necessarily reject the evidence presented by Pepsi in
support of its assertion that Henry's position was unnecessary.
In sum, it cannot be said as a matter of law that Henry has
overcome the evidence proffered by Pepsi in support of its
assertion that her position would have been eliminated regardless
of whether she took FMLA leave. And so Henry is not entitled to
judgment as a matter of law with respect to her claim that
Pepsi's termination of her employment violated Section 2615 (a)
For the reasons stated here, Henry's Rule 56 motion for summary
judgment is denied. Because the parties have previously submitted, and this Court has issued, a final pretrial order, and
because this Court has contemporaneously resolved the parties'
motions in limine on which briefing has just been completed, this
case will be set for trial when all parties have indicated their
dates of unavailability during the next several months.