The opinion of the court was delivered by: J. Phil Gilbert District Judge
Jennifer Smith (Smith) filed this lawsuit on May 29, 2006, alleging her employer, Southern Illinois Riverboat/Casino Cruises, Inc., d/b/a Harrah's Metropolis Casino (Harrah's), unlawfully fired her for taking leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. At the final pretrial conference, the Court orally denied Harrah's motion for summary judgment (Doc. 42). Now, the Court states its reasons.
I. Standard on Summary Judgment
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine dispute of material fact, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
If the moving party meets its burden, the nonmoving party has the burden "to go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000).
Taking the facts in the light most favorable to Smith, and drawing all reasonable inferences in her favor, the evidence establishes the following facts.
Smith, a long-time employee of Harrah's Casino in Metropolis, Illinois, requested and received FMLA leave for a qualifying malady on July 14, 2005. In her roughly twelve years as a blackjack dealer for Harrah's, Smith requested and received at least thirteen FMLA qualifying leaves of absences -- Harrah's did not deny any of her requests. (Doc. 25 at 4). Smith reported ready for work on August 12, 2005, and was told to report on August 15, 2005. During a meeting shortly before her shift was about to start on August 15, Diana Jeffords, Employee Relations Manager, and Aubrey Thomas, Vice President of Operations, told her she was fired for "fraudulent medical leave." (Compl. at 3).
As is true in almost all these cases, there is more to the story. In 2005, Harrah's had a point-based attendance policy. Its employees received points for absences for which they did not receive permission in advance, but not when they took leave with permission or pursuant to the FMLA. If an employee earned twelve points during any twelve-month period, Harrah's could terminate her.
On March 28, 2005, Smith received a "documented coaching" because she had accumulated seven points. She received a written warning on May 3, 2005, because she had accumulated eight points and she got a "Final Written Warning" on July 12, 2005, because she had accrued ten points. (Doc. 25 at 5). On that day, Smith entered into an "Attendance Intervention Agreement with Harrah's which provided" her a last chance to shape up. Smith was ill on July 12 and she asked for and received paid leave so she could see her doctor the next day. This exhausted all her available leave.
After her visit, Smith's doctor submitted the following medical certification to Harrah's: "Jennifer was seen in office on 7/14/05 with complaints of epigastric pain, chest pain, anxiety type symptoms. Advised to rest, off work until released. Seen for f/up on 7/21/05 with abdominal pain. Advised to rest and remain off work until released. Next visit 7/26/05." (Doc. 25 at 6). Though her doctor advised her to rest and avoid stressful situations, he did not prescribe any specific limitations on her activity. (Doc. 29 at 3).
Jenna Thompson, an employee relations assistant in Harrah's Human Resources Department, informed Harrah's table managers by email on July 14, 2005 about Smith's taking of FMLA leave. Kelley Keeling, a Casino Manager, sent the following reply:
Just a little FYI. Jennifer had requested PTO for that time frame. However, we had to tell her that her PTO could not be granted because she had used all of her PTO hours. I am sure that we can't do anything about this but just wanted to point out the fact that its obvious she is finding a way to work the system. (Doc. 25 at 7). This and other information caused Jeffords to become suspicious of Smith's July leave, which led her to hire an investigator to surveil Smith. The investigator reported Smith's activities and videotaped her while she was on leave.
According to Jeffords, she spoke with Smith -- and took notes of the conversation -- on the telephone sometime while she was on leave. At her deposition, Jeffords testified that Smith told her she could not stand or bend, that she was "confined pretty much to her home," that she "didn't hardly get out at all," that she was "basically [on] bed rest," that she "just went to the doctor's," and that she "was sick and throwing up blood all the time." (Doc. 25 at 9). Jeffords did not date her notes, so she was not sure when she spoke to Smith. In her deposition, Smith testified that she did not say ...