The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Elizabeth de la Rama ("de la Rama")*fn1 originally filed a five-count Complaint against her employer, the Illinois Department of Human Services ("Department"), and her former supervisor Mary Zukowski ("Zukowski") individually, charging that she was discriminated against on the basis of her race and national origin under Title VII of the Civil Rights Act of 1964,("Title VII," 42 U.S.C. §§2000e to 2000e-17), as well as having been denied rights arising under the Americans With Disabilities Act ("ADA," 42 U.S.C. §§12101-12117) and the Family Medical Leave Act ("FMLA," 29 U.S.C. §§2601-2654. In addition to those federally based claims, Delarama complains that Zukowski made false and malicious statements about her, statements that gave rise to a common law claim of defamation.
At the close of discovery Department moved for summary judgment pursuant to Fed. R. Civ. P. ("Rule") 56, and de la Rama has responded to its motion. For the reasons set forth in this memorandum opinion and order, Department's motion is granted in its entirety and this action is dismissed.
Summary Judgment Standard
Well-established Rule 56 principles impose on Department the burden of establishing a lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must consider the evidentiary record in the light most favorable to non-movant de la Rama and draw all reasonable inferences in her favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment, de la Rama must produce "more than a mere scintilla of evidence to support her 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.). If the record reveals that no reasonable jury could find in favor of de la Rama, summary judgment must be granted (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
To enable this Court to evaluate that possibility, what follows is a summary of the facts, viewed in non-movant de la Rama's favor under the criteria prescribed by Rule 56 and this District Court's LR 56.1.*fn2 And that of course obviates any need to repeat "according to de la Rama" or the like, or to identify any conflicting account, though the latter is sometimes included for purely informational purposes.
De la Rama is an American of Filipino descent who has been employed as a registered nurse at Chicago-Read since 1991 (C. St. ¶3) to provide nursing care and treatment to mentally ill adults (id.). From January 2004 through January 2005 Zukowski was de la Rama's supervisor. As part of de la Rama's benefits package she was entitled to paid time off of work for sick leave, vacation, holidays, overtime and personal days (id. ¶8). In terms of her sick time de la Rama was provided with 12 sick days per year, accrued at the rate of one sick day per month (id. ¶4).
From July 19 through August 19, 2004 de la Rama began to take days off of work for a condition that would much later be diagnosed and disclosed as fibromyalgia (D. St. ¶30). On July 21 de la Rama called in sick for her shift, but she then came to Chicago-Read in the afternoon during a colleague's retirement party and attempted to give Zukowski a doctor's note explaining her illness (C. St. ¶32). Zukowski told de la Rama that a retirement party was not the appropriate venue to talk about her sick leave and suggested that they discuss the matter later (id. ¶33). When de la Rama was unable to locate Zukowski after the party, she opted to leave the doctor's note--a note that merely stated de la Rama was under a doctor's care for back pain and was "not able to continue working for 1 week till she recovers from her back pain" (id.)--with a co-worker (id. ¶38). As de la Rama was leaving the building that day, she stopped by the personnel office to obtain Chicago-Read's "CMS 95 form," which would enable her to take medical leave once it had been completed by her doctor (id. ¶36).
At that point de la Rama was aware that she had already exhausted her sick leave, yet she continued to call in sick without explaining the nature of her illness (C. St. ¶31). On July 27 she delivered another doctor's note to Chicago Read's evening nurse coordinator Angie Sanchez ("Sanchez")(id. ¶41). Again that note lacked both a date and a diagnosis, but it said that de la Rama would be unable to work until August 10, 2004 (id. ¶41). On the next day de la Rama spoke with Human Resource Specialist Nancy Heneghan ("Heneghan"), who told de la Rama that she needed to request a leave of absence in writing and submit it along with the CMS 95 form that she had received on July 21 (id. ¶42). But de la Rama did not then proceed to submit the requisite forms, and she had no further contact with Chicago-Read until August 19, when Associate Director of Nursing Alice Schultz ("Schultz") called her to arrange a meeting about her leave of absence (id. ¶¶43, 46, 44). After that conversation de la Rama produced three more doctors' notes on August 20, none of which provided a diagnosis of her condition (id. ¶45).
During that time Zukowski marked de la Rama's absences as unauthorized because she had exhausted all her accrued sick time and had never communicated with a supervisor about substituting other benefit time in place of sick time, as required under the Chicago-Read personnel manual (C. St. ¶¶12, 40, 43). De la Rama was aware that Zukowski also directed other personnel to consider de la Rama's absences as unauthorized leave while de la Rama continued to call in sick (id. ¶48).
On October 4 de la Rama finally returned a completed CMS 95 form to Heneghan and Schultz, who in turn retroactively activated de la Rama's leave to the date of her last sick day, September 2 (C. St. ¶¶51, 52). De la Rama also obtained a "Request for Accommodation Form" from Carl Smith ("Smith"), the former director of labor relations at Chicago-Read, but she never completed it because she said she was not seeking an accommodation under ADA (id. ¶¶69-70). Ultimately de la Rama took a partially retrospective five-month unpaid leave that called for her to return to work on January 3, 2005, when at her union's request she was assigned to a different unit under a new supervisor, Marissa Marcelli ("Marcelli")(id. ¶52).
After de la Rama returned to work in 2005, she, her union representative and Marcelli attended a pre-disciplinary meeting regarding her 24 absences that had been treated as unauthorized (C. St. ¶55). At the meeting it was decided that de la Rama would not be disciplined for the unauthorized absences, although any future unauthorized absences would trigger disciplinary procedure against her (id. ¶55). De la Rama, unhappy with that outcome, pursued a grievance that sought to get the 24 unauthorized absences off her record entirely (id. ¶57). At the third-level grievance hearing, where de la Rama was represented by three union officials, management and the union agreed that the 24 unauthorized absences would remain on de la Rama's employment record, but that the absences would never be used in any disciplinary determinations against de la Rama (id. ¶60).
Still unsatisfied, de la Rama filed this action to complain that Zukowski (and hence Department) had discriminated against her because of her race and national origin and that Zukowski individually had slandered her on two separate occasions--once during the time period in which Zukowski told co-workers to mark de la Rama's absences as unauthorized and then later during the third-level grievance hearing. As stated at the outset, de la Rama also complains that Department violated both the FMLA and the ADA.
Employment Discrimination Claims
As is well known (really too well known to require repetition, even though just about every opinion in this area of the law continues to do so), there are two methods by which a plaintiff may prevail in an employment discrimination action--the direct and indirect methods of proving*fn3 that her employer took an adverse employment action against her because of her race or national origin. Under the direct method, de la Rama could succeed in doing so through an admission by Department or through circumstantial evidence of discrimination (see Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006)). Alternatively, she may proceed under the burden-shifting method memorialized in the seminal decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under that indirect method de la Rama's prima facie case comprises four elements, identified this way in Raymond, 442 F.3d at 610: (1) she is a member of a protected class; (2) she was performing at a level that met her employer's legitimate expectations; (3) she was subject to an adverse employment action; and (4) she was treated differently than a similarly situated person outside her protected classes.
Once de la Rama establishes her prima facie case, the burden shifts to Department to "articulate some legitimate, non-discriminatory reason" for the adverse employment action (id., quoting McDonnell Douglas, 411 U.S. at 802). If Department does so, de la Rama must then show that the proffered reason is pretextual. Although the burden of production thus shifts back ...