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Moldenhauer v. Tazewell-Pekin Consolidated Communications Center

December 29, 2006


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


Now before the Court are a series of cross Motions for Summary Judgment. Each Defendant in this case has moved for Summary Judgment. Defendants Tazewell-Pekin Consolidated Communications Center [T/PCCC] and Tazewell County filed their Motion [#68] on August 15, 2006. Defendants Robert Huston [Huston], James Unsicker [Unsicker], and Steven Thompson [Thompson] also filed their Motion [#67] on August 15. Defendants Timothy Gillespie [Gillespie] and David Tebben [Tebben], joined with the City of Pekin, filed their Motion [#64] on August 15 as well. Plaintiff Denise Moldenhauer timely responded to these three motions, and filed her own Motion for Summary Judgment [#71] on August 31.

For the reasons set forth below, Defendants T/PCCC and Tazewell County's Motion for Summary Judgment [#68] is GRANTED. Defendants Huston, Unsicker, and Thompson's Motion for Summary Judgment [#67] is MOOT. Defendants Pekin, Tebben, and Gillespie's Motion for Summary Judgment [#64] is GRANTED. Plaintiff Moldenhauer's Motion for Summary Judgment [#71] is DENIED. This matter is now TERMINATED.


The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claims asserted in the Complaint present federal questions under Family Medical Leave Act, 29 U.S.C. § 2601, et seq.


Plaintiff Moldenhauer is a resident of Pekin and worked as a dispatch-telecommunicator at the T/PCCC between August 1983 and April 24, 2003. Moldenhauer has been diagnosed with pancreatitis. Beginning in 2002, Moldenhauer was progressively disciplined for missing many days of work, and was ultimately discharged on April 24, 2003, for excessive absenteeism. The parties dispute the true reason for some of the absences. Moldenhauer originally brought this action for monetary damages, alleging that the various defendants violated the Americans with Disabilities Act [the ADA] and the Family Medical Leave Act [the FMLA]. In Moldenhauer's consolidated Response to the Defendants' three Motions for Summary Judgment, Moldenhauer withdrew her claims under the ADA (Count I and part of Count III of her Complaint). Therefore, the Court confines its review of the pending motions to the issues concerning the FMLA. Specifically, the Court is called upon, as a threshold matter, to determine whether Moldenhauer is an "eligible employee" covered by the FMLA, and if so, whether the City and County Officials are insulated from liability under the FMLA as individuals or because of the federal Volunteer Protection Act.

A. The City, the County, and the T/PCCC

The T/PCCC is an Illinois non-profit corporation that provides emergency 911 communications and dispatch services for 38 separate entities. The City of Pekin's Police and Fire Departments and the Tazewell County Sheriff's Department are the largest users, but the T/PCCC also contracts for its services with various other entities, such as Marquette Heights, Minier, Hopedale, Shaefferville Fire and Rescue, and Advanced Medical Transport, Inc. The T/PCCC was formed in 1976 pursuant to an intergovernmental agreement between the Tazewell County Board of Supervisors and the City of Pekin's City Council to establish a combined communications center to provide emergency communications and dispatch services for County and City residents.

The T/PCCC was formed under the Illinois General Not For Profit Corporation Act, 805 ILCS 105/101.1 et seq., and its by-laws provide for a perpetual board of directors of four individuals: the Sheriff of Tazewell County (an elected official), the Chairperson of the Tazewell County Board of Supervisors (an elected official), the Mayor of Pekin (an elected official), and the Chief of Police of the Pekin Police Department (an appointed official). The by-laws provide that the persons holding these posts or "a designated alternate appointed in writing for any of the of the foregoing members" will serve on the Board. The parties dispute whether the quoted language means that the officials themselves could designate a replacement board member to serve in their place, or whether some other entity, such as the County or the City, would appoint any replacement.

From January 1, 2000, through April 1, 2003, the T/PCCC Board of Directors consisted of John Huston (County Sheriff), James Unsicker (County Board Chairman), Timothy Gillespie (City of Pekin Police Chief), and David Tebben (Mayor of Pekin). On April 1, 2003, Lyn Howard replaced Tebben as Mayor, and therefore, also took his seat on the T/PCCC Board of Directors. The County Sheriff and the City Police Chief alternate as Chairman and Vice Chairman of the T/PCCC Board every four years, with Gillespie having replaced Huston as Chairman in May 2006.

The T/PCCC's Board of Directors appoints an Executive Director to operate the Communications Center and manage its budget and operations. Steven Thompson is the current Executive Director of the T/PCCC, and served as the Executive Director at all relevant points in this litigation.

The T/PCCC receives the bulk of its operating budget from Pekin and Tazwell County. For example, a 2001 independent audit of the T/PCCC reported the Center's revenues and expenses as the following:


City of Pekin$437,192 Tazewell County242,219 Other governmental entities160,161 Private businesses30,788 Other revenues1,971 Total operating revenues872,331


Salaries and employee benefits$746,203 Administrative and equipment costs119,633 Depreciation56,082 Total operating expenses921,918

Plf.'s Consolidated Response to Defs.' Mtn for Summ J., Exh. 2.

The Center operates twenty-four hours a day, seven days a week, and is staffed by both full-time and part-time telecommunicators. The T/PCCC schedules its dispatchers in three shifts: four full-time communicators are typically scheduled on the first shift (8:00 a.m. -- 4:00 p.m.); five full-time communicators are scheduled on the second shift (4:00 p.m. -- 12:00 a.m.); six full-time communicators are scheduled on the third shift (12:00 a.m. -- 8:00 a.m.).

All of the T/PCCC's telecommunicators are included in a collective bargaining unit for which the Illinois Fraternal Order of Police Labor Council is the recognized exclusive bargaining agent. The T/PCCC and the FOP Labor Council have been parties to a series of collective bargaining agreements, including the Agreement in effect May 1, 2002 through April 30, 2006. The agreements are negotiated by Executive Director Thompson, signed by Thompson and whoever is the current T/PCCC Board Chairman, and specify the T/PCCC as the employer of all unit employees. The Agreement sets the wages, hours and conditions of employment, including provisions that employees may be discharged for just cause. It is undisputed that between January 1, 2002 through present, the T/PCCC never employed more than 23 employees.

B. Moldenhauer's Employment at the T/PCCC

Moldenhauer started work at the T/PCCC in 1983. At all relevant times, Defendant Steven Thompson was, as the director of the T/PCCC, Moldenhauer's supervisor. Since 1991, Moldenhauer has suffered from chronic pancreatitis with acute flare-ups. According to Moldenhauer, during these flare-ups, she must take pain medication, be on bed rest, and cannot eat or drink. The flare-ups require her to miss work, usually for one day at a time. Beginning some time in 1998, Thompson considered her absences excessive and told her that he was dissatisfied with her work attendance in 1998-1999. In 1999, Moldenhauer was given leave, not for pancreatitis, but for bereavement for the death of her daughter.

On April 26, 2002, Thompson issued Moldenhauer a letter of reprimand for patterned illness for taking 32 sick days in the previous year. On May 16, 2002, Moldenhauer received a one-day suspension due to excessive absences. Moldenhauer asserts that on May 24, 2002, she submitted to Thompson a written request for leave under the FMLA. Moldenhauer never received a formal response to her request, and Thompson testified that he did not recall receiving her written request.

In October 2002, Moldenhauer was advised that she had no more benefit time left to take leave. On November 6, 2002, Moldenhauer received a five-day suspension, as progressive discipline under the collective bargaining agreement, for excessive absences from work. Moldenhauer filed a grievance contesting the suspension under the bargaining agreement, which was denied by Thompson in the first step of the grievance procedure.

On January 16, 2003, Thompson issued Moldenhauer a 20-day suspension for continued patterned absences, warning Moldenhauer that her continued pattern of excessive absences from work could result in further action, up to and including discharge. Moldenhauer filed a second grievance under the collective bargaining agreement, also denied by Thompson at the first stage of the grievance process. Under the agreement, the second and last pre-arbitration grievance step is to appeal to T/PCCC's Board of Directors. The FOP Labor Council appealed Moldenhauer's suspensions to the Board. On March 26, 2003, the Board met with Moldenhauer, an FOP Labor Council representative, and Thompson. While Moldenhauer and the Union argued that the prior discipline was not for just cause because her absences were for legitimate medical reasons, the Board concluded that the discipline followed the parties' agreement, and denied the grievance. Moldenhauer admitted that she missed four more days of work in 2003 between the January 2003 suspension and her termination on April 24, 2003.

The immediate events leading up to Moldenhauer's termination are as follows: Moldenahuer had scheduled Friday, April 18, 2003, as a priority vacation day on April 9, 2002, pursuant to the labor agreement's vacation scheduling provisions. She had taken April 18 off, the anniversary of her deceased daughter's birthday, in both 2001 and 2002, as well. In October 2002, however, Thompson informed Moldenhauer that she had exhausted all of her vacation and other benefit time and therefore she could not have her priority vacation days. On April 18, 2003, Moldenhauer did not come the T/PCCC for her shift, and her husband reported her as sick. This left the T/PCCC extremely short-handed, as other dispatchers had also scheduled April 18 off. When Moldenhauer returned to the T/PCCC on her next scheduled work day, April 21, Thompson gave her notice of an administrative interview in regards to her sick call on April 18.

At the April 23, 2003, meeting, Moldenhauer denied that she had abused sick leave privileges. On April 24, Moldenhauer received a written notice of termination, effective immediately, based upon the repeated warnings for sick time abuse and excessive absenteeism. The notice was signed by Thompson, and included the statement that "[much] thought has entered into this decision both on my part and that of the Board of Directors." The parties dispute whether Thompson alone made employment decisions at the T/PCCC, including the decision to fire Moldenhauer.

The dispute at the summary judgment stage centers on just who it is that actually controlled Moldenhauer's employment, that is, who was her employer or joint employer under the FMLA? Moldenhauer argues that the facts establish that Pekin was her employer or joint employer. For example, prior to 2002, T/PCCC had its facilities in the City of Pekin Building and paid no rent. From her date of hire in 1983 though 1994, Plaintiff was given notice of raises on a "City of Pekin" form, as employee 76250 of the City of Pekin. When Moldenhauer had a monetary judgment against her, the plaintiff in that case served the City of Pekin with a wage deduction and garnishment action, which the City of Pekin honored from Moldenhauer's wages. Moldenhauer's W-2 forms also reflect her employer to be the City of Pekin. In order to have her paycheck deposited directly to her bank, Moldenhauer completed a form entitled "City of Pekin Authorization for Direct Deposit," which listed her department as the T/PCCC.

Moldenhauer also participated in various insurance programs through Pekin-health, dental, life-and participated in the Illinois Municipal Retirement Fund as an employee of Pekin. All of the forms related to her benefits or changes in coverage under the insurance and retirement programs reflect her employer as the City of Pekin. She also typically corresponded with Pekin personnel, such as the Assistant Financial Director of the City of Pekin, regarding her benefits. When Moldenhauer was injured on the job, the accident reports reflect her employer as the City of Pekin, and she received worker's compensation benefits pursuant to a policy issued through the City of Pekin. When she enrolled in a Flexible Spending Program, her enrollment form lists her employer as the City of Pekin.

Moldenhauer points to other documents to support her contention that Pekin regarded her as one of its employees. In 1999, Moldenhauer acknowledged receipt of a written copy of the City of Pekin Sexual Harassment policy, which required her to report incidents of harassment to either her department head or the Risk Manager for the City of Pekin or the City Manager for Pekin. In 2001, an independent audit of the T/PCCC was completed. The auditor's report begins, "We have audited the accompanying general purpose financial statement of the [T/PCCC], a component unit of the City of Pekin.." The report also states, "For financial statement and reporting purposes, the City of Pekin considers the Center a discrete component unit and is reported on the City's combined financial statements." In October 2002, there was a legal notice published in the Pekin Times by the Pekin City Clerk, including a statement of ...

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