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June 21, 2005.

PEPSIAMERICAS, INC., et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


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 commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms ...

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