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Aleman v. U-Haul Co. of Illinois

May 18, 2007

MIGUEL ALEMAN, PLAINTIFF,
v.
U-HAUL CO. OF ILLINOIS, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Miguel Aleman (hereinafter, "Plaintiff") brought this action against U-Haul Company of Illinois, Inc. (hereinafter, "Defendant") alleging that Defendant violated the Family Medical Leave Act (hereinafter, "the FMLA") when it terminated him for taking leave to care for his ailing stepfather. Both Plaintiff and Defendant have moved for summary judgment.

I. BACKGROUND

The following facts are taken from the parties' 56.1 statements; factual disputes are noted.

Beginning in 1994, Plaintiff worked at Defendant's Alsip, Illinois facility as a transmission specialist maintaining Defendant's fleet of vehicles. Shop Manager Edward Roderick Bolden ("Bolden") was Plaintiff's direct supervisor after 1999. After April 20, 2005, Jim McFarland ("McFarland") was U-Haul Company of South Chicago President and worked throughout southwest Cook County and the suburbs (including the Alsip facility). Until April 28, 2003, Plaintiff received regular merit increases; in the period between April 28, 2003 and July 28, 2005, Plaintiff received only one merit increase due to a large number of absences.

Beginning in 2003, Plaintiff's stepfather, Cruz Manuel Cartagena ("Cartagena"), began to have health problems. Plaintiff has never met his biological father, and Cartagena raised Plaintiff from three years of age. Plaintiff refers to Cartagena as his "father." Plaintiff asserts that Cartagena's health problems caused him to miss work on several occasions.

The parties agree that Defendant is an "employer" and Plaintiff was an "eligible employee" for FMLA purposes. Plaintiff, however, asserts that he was never provided a copy of Defendant's FMLA policy or any type of FMLA forms prior to his termination, and that no one told him of his FMLA rights. Defendant's employee handbook mentions that "leaves of absence may be granted for . . . family medical leave as provided by the FMLA for 1993 (see posted Department of Labor notice)" and indicates that requests for such leave must be accompanied by documentation. A Department of Labor FMLA notice was posted in the facility's break room.

The parties dispute Defendant's attendance and call-off policies. Plaintiff asserts that Defendant did not have a formal attendance policy, but that employees could be absent by "calling off" on days they sought to miss. Defendant, however, contends that there was a formal policy, and that employees could call in sick via the "call off" procedure, but must request other time off in advance. The parties agree that it is Defendant's practice to terminate employees after three days of "no call/no show."

Plaintiff began to miss work in 2003. There is no dispute that Plaintiff's job called for him to work 40 hours a week. There is no dispute that Plaintiff missed a significant amount of work in 2004 (500 hours) and early 2005 (83 hours before April 1). Plaintiff asserts that he "called off" during this period without discipline, but Defendant asserts that Bolden pulled Plaintiff aside to speak to him about his attendance several times.

Plaintiff met with Bolden to discuss his attendance issues on April 19, 2005. Plaintiff asserts that at this meeting, he told Bolden that he had to call-off because of "his father's serious illness" and that his father was "in and out of the hospital." Notes taken by an employee of Defendant at this meeting, however, indicate that Plaintiff gave three explanations for his absences: he had a medical problem, he had problems at home, and he was having problems with his "old man." No Defendant employee inquired further about Plaintiff's father or mentioned the FMLA in any way. Following this meeting, Plaintiff continued to miss work. Plaintiff asserts that the absences were approved, but Defendant claims otherwise.

The following is a summary of Plaintiff's absences after this meeting:

Pay Period Hours Worked Hours Missed/Source

April 25-May 8 75.75 4 Personal Hours May 9-May 22 72 8 Sick Hours May 23-June 5 64 6 Sick/8 Holiday Hours June 6-June 19 71 9 Hours/Source Not Provided June 20-July 3 59 21 Hours/Source Not Provided July 4-July 17 63.25 8 Holiday/ 8.75 Hours/Source Not Provided July 18-July 31 55.5 24.5 Hours/Source Not Provided

Cartegena was scheduled for open heart surgery on August 1, 2005 (but the surgery was rescheduled and ultimately took place on a later date). It is undisputed that Plaintiff requested time off in late July 2005 and mentioned that his father was going to have surgery. Bolden testified in his deposition that Plaintiff requested only July 29 off and then was not heard from again until he returned to work on August 11, 2005. Plaintiff testified that he checked in with both Bolden and McFarland requesting more time that Bolden said it was okay, and that Cartagena's physician had faxed over various documents to Bolden's attention indicating that Plaintiff was needed at the hospital. Bolden denied receiving any phone calls or documents between July 29 and August 11, but Defendant produced the faxed documents in the course of discovery, which Bolden claims to have received after August 11.

Plaintiff returned to work on August 11, 2005 and was terminated. Some time afterwards, Plaintiff contacted U-Haul's Human Resources Department and eventually provided medical documents regarding Cartegena's surgery. Plaintiff was reinstated.

Before he could return to work, Plaintiff was required to meet with McFarland. McFarland asked Plaintiff if he needed more time off to spend with Cartagena. Plaintiff was informed that he had a significant absentee problem outside of the time missed due to Cartagena's surgery. At this meeting, a new absence policy was set for Plaintiff. Plaintiff asserts that this policy allowed him to continue to "call off" on a day he wished to miss, but required that he speak to Bolden or the next "white shirt" -- presumably another member of management or an office employee -- in order to do so. Defendant, however, contends that ...


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