MEMORANDUM OPINION AND ORDER
Plaintiff Andrew Leonard filed a three count complaint against defendants Uhlich Children's Advantage Network ("UCAN") and Darlene Sowell, Vice President of Human Resources at UCAN. Count I alleges a claim for interference under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq., against both defendants. Counts II and III, against UCAN only, allege violations of the Americans with Disability Act ("ADA") and retaliatory constructive discharge under the FMLA and ADA. Plaintiff has moved for summary judgment on Count I and defendants have moved for summary judgment on all counts. For the following reasons, the defendants' motion is granted in part and denied in part, and plaintiff's motion is denied.
UCAN provides mental health treatment for children who are wards of the State of Illinois. Leonard was initially hired by UCAN as a Residential Treatment Specialist on December 1, 2003; his duties as such included counseling children. In the fall of 2004, Leonard was promoted to Residential Case Manager I. In addition to counseling, his new duties included acting as a liaison and advocate for children before the courts, schools, and Illinois Department of Children and Family Services, as well as taking children to home visits, supervising home visits, and drafting quarterly reports. His immediate supervisors were Marvin Harris and Josephine Abi Rashed.
Leonard first became absent from work due to illness on Monday November 29, 2004. Leonard called Harris that day and told him he was not feeling well and that he felt he needed some help.*fn1 Leonard was absent again the next day and again called Harris. Leonard told Harris "there's a lot of stuff in my head right now that I don't understand." (Leonard Dep. at 39.) Leonard also told Harris that he was struggling with the fact that his ex-wife had committed suicide (approximately two weeks after their divorce) and that he "couldn't get it out of [his] head and  was reliving the events." (Id. at 42.) Leonard told Harris he needed help and was going to try to see his doctor. (Id.) Leonard was absent the rest of the week, and called and spoke with Harris every day during the first week of his absence. (Id. at 44-45.) He was not able to see his doctor until Friday December 3, 2004. His doctor believed Leonard had bipolar disorder, but recommended he see a psychiatrist. (Id. at 52-53.) That same day Leonard called Harris and relayed his doctor's tentative diagnosis. (Id. at 55.) Leonard called Harris again on Monday, December 6, 2004. He informed Leonard that he had spent the day in an emergency room, only to find out that they did not take his insurance. He told him he felt "[t]hings were getting worse." (Id. at 57.)
On or about December 9, 2004, Leonard was admitted into the University of Illinois at Chicago Hospital. He was not released until December 14, 2004. During his hospital stay, Leonard was diagnosed with bipolar disorder. Leonard recalls it was very difficult to make phone calls from the hospital, but he managed to leave messages for Harris during his hospital stay and to actually speak with Harris. Leonard also asked his psychiatrist to call UCAN and update them on his medical condition. On December 10, 2004, Leonard's psychiatrist, Dr. Khan, called Harris, who in turn directed her to call Sowell, the Vice President of Human Resources at UCAN. The same day Sowell received a telephone call from Dr. Khan informing her that Leonard was under Dr. Khan's care as an inpatient and that he should be out of the hospital by the end of the weekend (December 12) and back to work the following Tuesday or Wednesday (December 14 or 15). Dr. Khan also sent Sowell a confirmatory fax on that same date. Also during Leonard's stay at the hospital, specifically on December 13, 2004, Catherine Ellis, Leonard's sister, left a voice mail message for Sowell, which stated that she was calling on behalf of her brother. Ellis reported that Leonard was in the hospital and that he needed a medical leave. She specifically asked whether there were any FMLA forms that needed to be filled out and said she wanted to make sure that Sowell was aware of Leonard's situation. On December 14, 2004, Ellis left another voice mail message for Sowell. She stated she wanted to talk to Sowell about her brother's "medical leave since he is not in a position to do so himself." Sowell did not return these calls. Leonard was released from the hospital on December 14.
On December 20, 2004, Sowell spoke with Leonard and told him he needed to have his doctor fill out FMLA paperwork. Leonard informed Sowell that he would not be able to see his doctor until January 9 or 10, 2005. On December 21, 2004, Leonard filled out FMLA paperwork that had been faxed to him by Sowell. He wrote on the form that he would be back to work by December 27, 2004. Leonard did not appear for work on December 27. At the time Leonard believed he had called UCAN to inform them that he needed to extend his leave. Leonard does recall speaking with his sister on that date and telling her that he had called UCAN to extend his leave. Leonard's telephone records indicate the call to UCAN never took place.
On December 31, 2004, Leonard received a letter, via Federal Express, informing him that he had resigned from his employment because he had been absent from work and had not called for three days. Leonard could not contact anybody at UCAN that day because it was a holiday, but left messages for Harris and Sowell on Sunday January 2, 2005 stating that he had not resigned. He hoped that way they would hear the messages "the very first second they walked in the office, the very next business day." (Id. at 124.) On January 3, 2005, Sowell returned Leonard's call, and he told her he did not intend to resign and that he wanted to continue his employment with UCAN. He also told Sowell he believed he had called UCAN to inform them that he needed to extend his leave. Sowell refused and told him he should reapply when he was feeling better. Also on January 3, 2005, Sowell received two voice mail messages from Ellis stating that Leonard had in fact called in on December 27 to say he needed to continue on medical leave and requesting Sowell call her back. Sowell did not return the calls. This lawsuit was subsequently filed.
On or about November 2005, UCAN approached plaintiff about returning to work in connection with the "Service Connector" project. The project required some of the residents from certain public housing development, such as Cabrini Green, Altgeld Gardens, Lowden, and Trumbull, to relocate to new housing developments and to receive UCAN counseling services. Plaintiff told UCAN he did not want to work at Cabrini Green, but was offered a position which specifically involved working at Cabrini Green. Leonard accepted the offer and was re-hired as a Residential Case Manager I, with the same salary of $30,000 annually. Although plaintiff was hired as a new employee, plaintiff's counsel requested UCAN waive the one year service requirement to be covered under UCAN's FMLA policy and UCAN agreed.
On May 24, 2006, Leonard provided his resignation letter, citing personal safety, unequal treatment, and that the job was "hindering progress with [his] illness" as the reasons for his resignation. His resignation was to be effective June 2, 2006. Leonard subsequently amended his complaint to include Count III, his retaliatory constructive discharge claim.
Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 502 (7th Cir. 2004); FED. R. CIV. P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Under the FMLA, eligible employees are entitled to twelve weeks unpaid leave per year for various reasons, including a "serious health condition" rendering the employee unable to perform her job. Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). Leave may be taken continuously or on an intermittent basis. 29 U.S.C. § 2612(b). The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). "In addition to the substantive guarantees contemplated by the Act, the FMLA also affords employees protection in the event they are discriminated against for exercising their rights under the Act." King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999) (citing 29 U.S.C. § 2615(a)(1) & (2)). Count I alleges defendants interfered with Leonard's rights under the FMLA in violation of 29 U.S.C. § 2615(a)(1) for terminating his employment in December 2004.
In order to succeed on a FMLA interference claim, a plaintiff must establish: (1) that he was eligible for the FMLA's protections; (2) his employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled. Burnett v. LFW, ...