The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge
In January 2004, Plaintiff, Victoria Reible, filed a complaint
in the Fifth Judicial Circuit Court, Coles County, Illinois,
against Defendant, Illinois I.O.O.F. Old Folk's Home d/b/a Odd
Fellow-Rebekah Home. In February 2004, Defendant filed a Notice
of Removal (#1), removing the case to federal court. Federal
jurisdiction is based on federal question (28 U.S.C. § 1331)
because one of Plaintiff's claims is based on a federal statute.
The parties have consented to jurisdiction by a federal
In August 2005, Defendant Illinois I.O.O.F. Old Folk's Home
(hereinafter "Home") filed a Motion for Summary Judgment (#27).
After reviewing Defendant's motion and the parties' memoranda and
evidence, the Court GRANTS Defendant's Motion for Summary
Plaintiff's complaint alleges two counts as follows: In Count
I, she alleges that her employment was terminated because she
filed a workers' compensation claim. In Count II, she alleges
that Defendant terminated her employment in violation of the
Americans with Disabilities Act (hereinafter "ADA")
(42 U.S.C. § 12101, et seq.).
The undisputed facts are as follows: Plaintiff worked full-time
for the Home as a licensed practical nurse from November 1995
until August 8, 1997. Gail Price was director of nursing for the
Home from 1981 to 1998. Lualyce Brown was administrator of the
Home at the time Plaintiff's employment was terminated. Ms. Brown died in 2001. In
1997, Sharon Weger worked for the Home handling workers'
Defendant's attendance policy provides, in pertinent part, as
follows: "Being late or absent may, in the absolute discretion of
management, be cause for discharge. If an employee is absent for
three (3) days without giving notice, he/she will be considered
to have `resigned without notice' and will be removed from the
payroll." (Policy manual, p. 24.) When she began working at the
Home, Plaintiff signed a form acknowledging that she had read and
understood the Home's policy manual.
When Plaintiff began working for the Home in 1995, she was
restricted from lifting over fifteen pounds. She signed a form
titled "Job Description" that stated, "Per Conversation with Gail
[Price], I have limitation of lifting 15# of weight." Defendant
accommodated this restriction.
On May 21, 1997, Plaintiff injured her back while working. On
May 23, 1997, Plaintiff called the office of her primary care
physician, Dr. Kim Fehrenbacher. He told her she could continue
to work the week of May 27 and she should follow up with his
office during the following week if her back did not improve.
(#30, p. 4, Ex. B.) On May 23, Dr. Fehrenbacher faxed a note to
the Home that stated in part, "[Plaintiff] may work this
weekend," and also stated that she should avoid lifting greater
than twenty pounds and should avoid pushing, twisting, pulling,
or straining. (#30, p. 8, Ex. D.)
Following her injury, Plaintiff went to Dr. Fehrenbacher's
office for treatment on a regular basis. On May 27, Dr.
Fehrenbacher's clinical notes indicate that Plaintiff should not
work until June 2. (#30, p. 4, Ex. B.) The same day, the doctor's
office provided a note stating that Plaintiff could not work
until June 2, 1997. (#30, p. 5, Ex. C.) On June 2, Dr.
Fehrenbacher's clinical notes state, "No work until results of
MRI are known and symptomatic improvement." (#30, p. 6, Ex. E.)
On June 9, the clinical notes state that Plaintiff underwent an
MRI and is still having back pain. Dr. Fehrenbacher referred her
to Dr. James Kohlmann for an appointment on June 17. (#30, p. 6,
Ex. E; p. 10, Ex. F.) On June 17, 1997, Dr. Kohlmann issued a report stating that
Plaintiff was capable of returning to work with modified duty.
(Kohlmann report dated June 17, 1997.) On June 23, Dr.
Fehrenbacher's clinical notes state that Plaintiff "[i]s seeing
Dr. Kohlmann who told her she could go back to work. She was
quite surprised and uncomfortable with that as she is still
having pain that awakens her at night. . . . Will try to get her
back to work for at least part time after her next appt. in 2 wks
from this." (#30, p. 7, Ex. E.) In an undated note, Dr.
Fehrenbacher stated that Plaintiff should "continue not working
for 2 more weeks effective until 7/7/97." (#30, p. 11, Ex. G.)
On June 30, 1997, Plaintiff filed a worker's compensation claim
On July 7, Dr. Fehrenbacher's clinical notes state that
Plaintiff "[d]oes not feel she could return to her duties as a
nurse. Does not feel she would be able to sit for extended
periods of time and chart." (#30, p. 7, Ex. E.) He also provided
a note for the Home that stated, "Victoria Reible will be unable
to work until her next appt 7/28/97." (#30, p. 12, Ex. H.)
On each of the above dates (May 27, June 2, June 9, June 23,
and July 7, 1997), Dr. Fehrenbacher provided Plaintiff with a
note stating she should not work until her next appointment.
Plaintiff gave those notes (or copies of them) to the Home.
On July 17, 1997, Dr. David Fletcher performed an independent
evaluation of Plaintiff and issued a report stating that
Plaintiff was capable of returning to work with modified duty.
(Fletcher report dated July 17, 1997.) After the Home received
Dr. Fletcher's report, Sharon Weger sent Plaintiff a letter
asking Plaintiff to return to work with modified duty and to
contact Defendant by July 23, 1997, regarding her work hours.
(Weger letter dated July 18, 1997.) Plaintiff received this
letter. (Reible dep., p. 47.)
On July 23, Dr. Fehrenbacher's clinical notes state that
Plaintiff "called office yest. requesting to be referred to Dr.
James Harms orthopod @ Carle instead of Dr. Kohlmann." (#30, p.
9, Ex. E.) On July 23, 1997, Plaintiff called Gail Price and told her she
had an appointment with Dr. Fehrenbacher on July 28, 1997.
(Reible dep., p. 48; Price dep., p. 57.) Plaintiff testified that
she told Price that she "wasn't able to come back to work and
that [she] was coming in with a note from Dr. Fehrenbacher."
(Reible dep., p. 50.) Price testified that she told Plaintiff to
contact her after the appointment to let her know about the
results of the appointment or to bring her any notes from Dr.
Fehrenbacher. (Price dep., p. 57.)
On July 28, Dr. Fehrenbacher's clinical notes state that
Plaintiff was "feeling better. Would like to return to work." In
addition, the notes state as follows: "[Plaintiff] Did not see
Dr. Kohlmann and today says she would like to postpone seeing Dr.
Harms. . . . [Plaintiff] [h]as seen Dr. Fleisher . . . [and she]
[a]nticipates having functional assessment exam by him on Wed (in
2 days) and returning to work with limited duty then. . . .
Anticipate patient will be returned to work later this week by
Dr. Fleisher as noted above." (#30, p. 9, Ex. E.) Dr.
Fehrenbacher testified that, at the July 28, 1997, appointment,
he did not provide Plaintiff with a note excusing ...