The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Rodrigo Lozano ("Plaintiff") has sued Kay Manufacturing Company
("Kay" or "Defendant") for its alleged violations of the Family
Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Lozano
claims Kay violated his rights by refusing to offer benefits as
provided by FMLA. Kay has filed a Federal Rule of Civil Procedure
("Rule") 56 motion for summary judgment alleging that there is no
genuine issue of material fact as to whether Defendant was in
violation of FMLA because Plaintiff has failed to plead each
element of an FMLA violation. For the reasons set forth below,
Defendant's motion is denied.
In January 1999, Plaintiff was hired as a machine operator with
Kay and remained in that position until his termination in April
2002. (Defs.' LR 56.1(a)(3) Stmt. ¶¶ 4,5.) Plaintiff reported to
Wayne Raker and operated a "chucker" machine, which is a machine
that grinds and finishes customized metal pieces. (Id. ¶¶ 9,
10, 11.) To operate the machine, Plaintiff manually inserted and
tightened metal parts into the clamp or "chuck" of the machine.
(Id. ¶ 13.) At each work station, there were written procedures posted to instruct how to properly
operate the machine. The procedures also required that the parts
were to be checked for conformity at the beginning of each shift,
every fifteen minutes during the shift, after lunch, and at the
end of the shift. (Id. ¶¶ 14, 16, 17, 20.) Furthermore, the
procedures directed employees to notify a supervisor if a problem
arose with the machine or tools. (Def.'s LR 56.1(a)(3) Stmt. ¶
24.) However, Plaintiff claims that these posted procedures were
often ignored. (Pl.'s LR 56.1(b) Stmt. ¶¶ 14, 16, 24.)
Prior to mid-April 2000, Plaintiff and other machinists
received oral warnings for producing nonconforming parts from
time to time. After mid-April however, the frequency of
Plaintiff's violations began to increase. On April 21, 2000,
Plaintiff was issued a written warning for running his machine
without checking the conformity of the parts. (Pl.'s LR 56.1(b)
Stmt. ¶¶ 28, 29.) On August 3, 2001, Plaintiff was cited for
incorrectly creating customized parts. (Def.'s LR 56.1(a)(3)
Stmt. ¶¶ 25, 33.) Later that same month, Plaintiff's machine
broke down. He tried to repair it on his own because he alleges
his supervisor told him to figure out the problem. (Pl.'s LR
56.1(b) Stmt. ¶ 36.) On August 24, 2001, Plaintiff was issued
another written warning and was put on probation. Plaintiff
admits he received this warning and probation, but contends that
the reasons for the warning do not accurately recount what
occurred. (Id. 37, 38). Lozano was taken off probation during
his January 2002 performance evaluation. (Id. 43.)
In January 2002, Plaintiff was absent from work due to an
illness characterized by the hospital as hyperglycemia. (Def.'s
LR 56.1(a)(3) Stmt. ¶ 44, 46.) Plaintiff was then seen in the
hospital on February 5, 2002, and was discharged with a diagnosis
of tremors, diabetes and hyperventilation. (Id. 47, 48.)
Plaintiff was subsequently absent from work from February 6, 2002
to March 17, 2002. (Pl.'s LR 56.1(b) Stmt. ¶ 49.) During this
absence, Plaintiff received discharge papers from a hospital stating a diagnosis of delirium tremens
and diabetes mellitus. (Def.'s LR 56.1(a)(3) Stmt. ¶ 51.)
Hospital records also show that Plaintiff was seen because of
suicidal ideation and chronic drug overdose and that Plaintiff
suffered from major depression and panic attacks. (Def.'s LR
56.1(a)(3) Stmt. ¶ 53, 55; Pl.'s LR 56.1(b) Stmt. ¶ 53, 54, 56.)
Also, in March 2002, while at one of the hospitals, Plaintiff
told the treating physician of his hand pain and the physician
told him "he might have carpal tunnel syndrome" and that he
should look into it with his doctor. (Def.'s LR 56.1(a)(3) Stmt.
¶ 60 and Ex. 3, at 149-50.)
On March 18, 2002, Plaintiff presented a note stating that he
had been in doctor's care, and he was able to return to work on a
full-time basis, and he was allowed to do so. (Def.'s LR
56.1(a)(3) Stmt. ¶ 61.) Kay had paid Plaintiff short-term
disability benefits for his extended absence from February 6,
2002 to March 17, 2002. (Id. ¶ 58.) Plaintiff's application for
short-term disability benefits stated that he had been absent
because of anxiety and diabetic complications, as well as major
depression and panic attacks. (Pl.'s LR 56.1(b) Stmt. ¶ 59.)
Plaintiff's doctor, Darryl Forston, considered Plaintiff's
depression and anxiety as "serious" health conditions. (Id.
91.) Plaintiff informed Kay's human resources department of his
mental diagnosis. (Id. 105.) After his return in March 2002,
Plaintiff told his supervisor that "his hand did not feel right"
and that he had a problem and that he felt there was something
wrong with his hand. (Def.'s LR 56.1(a)(3) Stmt. ¶ 62). When
Plaintiff informed his supervisors of his hand discomfort, he was
told to slow down. (Id. 85.) Plaintiff did not share this
information with any other Kay representatives. (Pl.'s LR 56.1(b)
Stmt. ¶ 63.)
According to Lozano, he was able to perform his job, except for
his limitations resulting from his major depression, severe
panic/anxiety disorder, ulnar nerve disorder and carpal tunnel
syndrome ("CTS"). (Pl.'s LR 56.1(b) Stmt. ¶ 84.) Plaintiff believes that
Raker was aware of his CTS symptoms, but that Lozano was unaware
of the FMLA benefits available for such a condition. (Id. 87,
88.)
Meanwhile, Plaintiff admittedly continued to make mistakes. On
March 20, 2002, he improperly loaded a machine and consequently
made non-conforming parts that had to be discarded. (Id. 64.)
On April 1, 2002, the machine was again improperly sized.
Plaintiff states that the mistake was due to his hand problems,
but concedes he did not advise his supervisor. (Id. 65.) On
April 11, 2002, Plaintiff also had to throw several parts out due
to improper loading and again attributed this to his hand
problems. (Id. 66.) On April 15, 2002, Plaintiff was observed
not "blowing out the chucks" as required by Kay's procedures, but
Plaintiff asserts this was common practice and many other
machinists did the same. (Id. 67.) After Raker corrected
Plaintiff and advised him to be sure to follow each step in the
procedures, on that very same day, he was again found not blowing
the chucks out. (Def.'s LR 56.1(a)(3) Stmt. ¶ 68.) On April 17,
2002, Plaintiff left his machine improperly sized, but says he
did so because his replacement on the next shift told him to
leave it that way. (Pl.'s LR 56.1(b) Stmt. ¶ 69.) On April 19,
2002 after completing his shift, Plaintiff was informed that he
was being discharged. (Def's LR 56.1(a)(3) Stmt. ¶ 73.) During
the termination, Plaintiff informed Angela Nowell, Kay's
president, and Raker that he had a "problem" with his hand and
then abruptly left the office and was found in a nearby locker
room in a fetal position on the floor. (Id. ¶¶ 74, 75, 76.)
Plaintiff was formally diagnosed with CTS and ulnar neuropathy
one month later in May 2002. (Pl.'s LR 56.1(b) Stmt. ¶ 79.)
Approximately one year later, Plaintiff had ulnar nerve
transposition and CTS release surgery on April 15, 2003. (Def.'s
LR 56.1(a)(3) Stmt. ¶ 81.) The Legal Standard
In order for a party to prevail on a motion for summary
judgment, "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, [must] show 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). At this
stage, we may not weigh the evidence or make any credibility
determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). We view all evidence and draw all inferences in favor
of the nonmoving party. Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). Summary judgment is appropriate only when
the record as a whole establishes that no reasonable jury could
find for the non-moving party. Id.
Additionally, where "undisputed facts give rise to disputed
inferences," summary judgment is not appropriate.
Harley-Davidson Motor Co., Inc. v. Powersports, Inc.,
319 F.3d 973, 989 (7th Cir. 2003) (ruling that "the choice between
reasonable inferences from facts is a function of the
fact-finder"). See also Ramirez v. Nutrasweet Co., 1997 U.S.
Dist. Lexis 17111, at *7 (N.D. Ill. Oct. 27, 1997) ("if the
evidence presented by the parties is subject to conflicting
interpretations, or if reasonable minds could differ as to its
significance, summary judgment must not be granted") (citing
O'Connor v. Chicago Transit Auth., 985 F.2d 1366 (7th Cir.
1993)).
Plaintiff alleges that Kay violated the FMLA. That statute
entitles an eligible employee to up to twelve workweeks of leave
if, among other reasons, "a serious health condition . . . makes
the employee unable to perform the functions of [his] position."
29 U.S.C. § 2612(a)(1)(D). To state an FMLA claim, Plaintiff must
allege that: (1) he is an eligible employee, meaning he was
employed for at least twelve months by Kay and worked at least 1,250 hours
during the preceding twelve-month period (29 U.S.C. §§ 2611(2),
2612(a)(1)); (2) Kay is an employer covered by the statute, or
specifically that Kay is "engaged in . . . an[] industry or
activity affecting commerce [and] employs 50 or more employees
for each working day during each of twenty or more calendar
workweeks in the current or preceding calendar year"
(29 U.S.C. § 2611(4)); (3) Plaintiff was entitled to leave because he had "a
serious health condition that ma[de] [him] unable to perform the
functions of [his] position" (29 U.S.C. § 2612(a)(1)(D)); and (4)
Kay was aware of Plaintiff's need for leave but refused to
provide it (29 U.S.C. § 2615(a)(1); 29 C.F.R. §§ 825.302-03).
Prongs one and two are not in dispute. However, Kay claims that
Plaintiff has failed to prove that he had a serious health
condition that made him unable to perform his job and that
Plaintiff has not shown that Kay was aware of his need, but
refused to provide for it. Under the FMLA, a serious health
condition is defined as "an illness, injury, impairment, or
physical or mental condition that involves (A) inpatient care in
a hospital, hospice, or residential medical care facility; or (B)
continuing treatment by a health care provider." 29 U.S.C. § 2611
(11). The Department of Labor offers some guidance on determining
whether a serious health condition involves continuing treatment,
stating such treatment is:
(i) A period of incapacity (i.e., inability to work . . .
due to the serious health condition . . . or . . .
[the] the recovery therefrom) of more than three
consecutive calendar days, and any subsequent
treatment . . . relating to the same condition, that
also involves:
(A) Treatment two or more times by a health care
provider . . .
(B) Treatment by a health care provider on at least
one occasion which results in . . . continuing
treatment.
29 C.F.R. § 825.114(a)(2). Courts have concluded that to overcome a summary judgment motion,
a plaintiff must present adequate evidence in the ...