The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Bolingbrook Park District's ("BPD") motion to reconsider or, in the alternative, to seek an interlocutory appeal. For the reasons stated below, we grant the motion to reconsider.
Plaintiff Raymond Bobel ("Bobel") alleges that he began working for BPD in February 2000. Bobel claims that in May 2003, he worked for BPD as a Building and Aquatic Technician. Bobel states that in May 2003, he needed to have spinal surgery in order to correct a lower back condition and that he requested leave from BPD on May 13, 2003. On May 19, 2003, BPD allegedly granted Bobel's request for leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, and his leave was effective beginning on May 13, 2003. Bobel claims that between May 2003 and August 2003, while he was on leave, he kept BPD informed regarding his medical condition. According to Bobel, BPD stated that Bobel could not be restored to his prior position until he provided BPD with a release from a physician indicating that Bobel was ready for full duty. Bobel claims that in a letter dated August 6, 2003, BPD's Resources Director Michelle Abbott ("Abbott") informed Bobel that his FMLA leave would be exhausted on August 11, 2003, and told Bobel that his continued absence was placing a hardship on BPD's operations. Bobel also claims that Abbott informed him that he could extend his unpaid leave by forwarding a request to James Patula ("Patula"), BPD's Superintendent of Parks and Planning. Bobel claims that he forwarded such a request to Patula on August 13, 2003. On August 19, 2003, Patula allegedly sent a letter to Bobel indicating that Bobel's FMLA leave had been extended to September 5, 2003, and informing Bobel that other BPD employees were being "overworked" in his absence and that some of Bobel's jobs were not getting completed at all. (Compl. Par. 10). In the letter, Patula also allegedly told Bobel to forward the results of the Functional Capacity Evaluation ("FCE") that Bobel planned to receive from his physician and to forward a letter from Bobel's physician indicating the prognosis and whether Bobel could return to full duty.
According to Bobel, his FCE was initially scheduled for the last week of August 2003, but was delayed pending approval by Bobel's insurance plan. Bobel claims that on September 3, 2003, he sent a letter to Patula explaining that he would not receive the FCE before the September 5, 2003 deadline. Bobel claims that on September 10, 2003, Patula advised Bobel that he could continue with an extended leave of absence, but that BPD would conduct interviews to fill Bobel's old position and another open technician position. Bobel also claims that Patula promised Bobel that if Bobel was able to return to work before his position or the other open position was filled, Bobel could fill the available position.
Bobel claims that he underwent the FCE on September 12, 2003, and that after the FCE was completed, he telephoned his former direct supervisor, Steve Distler ("Distler") and informed Distler that Bobel thought the FCE would show that he was ready to return to full duty. Bobel alleges that Distler called Bobel on September 17, 2003, and told Bobel that BPD had interviewed and hired two technicians, but that one of them was not due to begin work until October 6, 2003. Bobel claims that he received the formal results of the FCE on September 19, 2003, indicating that he could return to full duty, and that he faxed the results to Patula and Distler on September 22, 2003. Bobel claims that on September 23, 2003, he received a letter dated September 18, 2003, advising him that his employment had been terminated. On April 26, 2005, Bobel brought the instant action alleging a substantive violation of the FMLA by BPD for failing to reinstate him to his position and alleging that BPD retaliated against Bobel for taking his FMLA leave. On April 17, 2006, we granted BPD's motion for summary judgment on Bobel's retaliation claim, denied BPD's motion for summary judgment on Bobel's interference claim, and granted summary judgment sua sponte in favor of Bobel on his interference claim ("April 17 Opinion"). BPD is now asking the court to reconsider the entry of summary judgment in favor of Bobel on the interference claim.
BPD has filed a motion to reconsider, asking the court to vacate its entry of summary judgment for Bobel on the interference claim. Three days after BPD filed the instant motion, the Seventh Circuit issued an opinion in Harrell v. United States Postal Service, 445 F.3d 913 (7th Cir. 2006), upon which BPD primarily bases its arguments in its reply brief to the instant motion to reconsider. On May 23, 2006, we granted Bobel leave to file a surreply that presented his arguments in response to Harrell and the arguments BPD raised in its reply brief, and BPD filed a response to Bobel's surreply.
A. Federal Rule of Civil Procedure 60(b)
The arguments raised by BPD relating to Harrell in its reply brief was presented to the court more than ten business days after the court's April 17 Opinion. Therefore, BPD's arguments relating to Harrell cannot be considered by the court under Federal Rule of Civil Procedure 59(e). Fed. R. Civ. P. 59(e) (stating that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment"). Instead, BPD must proceed under Federal Rule of Civil Procedure 60(b) ("Rule 60(b)"), which "provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances." Peacock v. Board of School Com'rs of City of Indianapolis, 721 F.2d 210, 213 (7th Cir. 1983). A party may seek relief under Rule 60(b)(6) "when [Rule 60(b) provisions] (1) through (5) are inapplicable, and equitable action is appropriate to accomplish justice." Id. Put otherwise, "[r]elief under 60(b)(6) is warranted only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust." Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986); see also Andrews v. Heinold Commodities, Inc., 771 F.2d 184, 188 (7th Cir. 1985)(stating that "Rule 60(b)(6) authorizes a federal court to vacate a final judgment for 'any other reason justifying relief from the operation of the judgment' [and that the rule] 'should be liberally applied to accomplish justice'"). One such situation can be when there is subsequent controlling case law that would alter the court's decision. See Peacock, 721 F.2d at 214 (stating that "a 60(b)(1) motion filed within the time for an appeal is a proper means for calling the trial court's attention to an intervening controlling appellate decision" and that such a controlling appellate decision can be a reason to grant a Rule 60(b)(6) motion).
In the instant action, BPD filed its Rule 60(b) motion prior to this court's entry of a final judgment, and thus Bobel is not prejudiced by the motion. In addition, because there has not been a final judgment, the policy concerns regarding the finality of decisions are not implicated in this case. Instead, by considering BPD's arguments relating to the Seventh Circuit's controlling case law, we are potentially conserving judicial resources by applying the most recent case law pertaining to this action. See Deck v. Peter Romein's Sons, Inc., 109 F.3d 383, 386-87 (7th Cir. 1997)(stating that "if a new law may be applied retroactively to a case pending on appeal, it follows, a fortiori, that the new law may be applied to an action . . . which, at the time of enactment, had not even proceeded to a final judgment in the district court"). Bobel has not objected to considering Harrell under Rule 60(b). Therefore, we find that BPD's motion to reconsider is appropriate under Rule 60(b), and will consider the merits of the parties' arguments.
In the court's April 17 Opinion, we discussed the fact that the FMLA allows employers to require certification that an employee is able to return to work before allowing that employee to return. 29 U.S.C. § 2614(e). However, we also stated that, pursuant to the FMLA and its accompanying regulations, any certification requirements must be part of a "uniformly applied practice or policy" and the employer must provide employees taking FMLA leave specific written notice of such certification requirements "either at the time notice of the need for leave is given or immediately after leave commences and the employer is advised of the medical circumstances requiring the leave." 29 U.S.C. § 2614 (e); 29 C.F.R. § 825.301 (b)(1)(v); 29 C.F.R. § 825.310 (e) (emphasis added). In our April 17 Opinion, we found it undisputed that after BPD informed Bobel that it was placing him on FMLA leave, Bobel did not receive any notification of BPD's certification requirement until "sometime prior to July 18, 2003," when he received oral notification. (Resp. SAF Par. 58-60). We also found it undisputed that Bobel did not receive written notification of the certification requirement until he received a letter dated August 6, 2003, which was only five days before his leave was originally set to expire. (Resp. SAF Par. 58-60). Accordingly, we found that such notice, which was made after Bobel took FMLA leave and only days before his leave was set to expire, was not "immediate" notice of BPD's certification requirement, and thus we granted summary judgment in favor of Bobel on the interference claim.
The court's April 17 Opinion was, in large part, based on a regulation to the FLMA that states that "[s]pecific notice shall . . . be given to any employee from whom fitness-for-duty certification will be required either at the time notice of the need for leave is given or immediately after leave commences and the employer is advised of the medical circumstances requiring the leave . . . ." 29 C.F.R. § 825.310 (e). We also based our April 17 Opinion on a regulation that states that any necessary notice to employees, including notice of any certification requirements, "shall be given within a reasonable time after notice of the need for leave is given by the employee--within one or two business days if ...