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Fulka v. Northwestern Medical Faculty Foundation

August 14, 2007


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Brian Fulka filed a two-count complaint against defendant Northwestern Medical Faculty Foundation, Inc. ("NMFF"), alleging that defendant violated his rights under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. (Count I) and retaliated against him for exercising his FMLA rights (Count II). Defendant has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons discussed below, the court grants defendant's motion.


On April 26, 2004, defendant, a not-for-profit physician organization with 550 physicians and 1000 other health care professionals and administrative staff, hired plaintiff as the Employee Relations Manager, reporting directly to Richard Briasco ("Briasco"), the Director of Human Resources. During the selection process, Peter Iacobell ("Iacobell"), the Vice President of Patient Services and Briasco's supervisor, directed Briasco to hire plaintiff and not to interview any other candidates for the position.

Plaintiff held a master's degree in labor and industrial relations and had worked from 1989 to 1997 in the field of human resources, representing management in union grievance proceedings, handling union organizing campaigns, and administering collective bargaining agreements. From 1997 to 2001, plaintiff worked as a mortgage broker, and from 2001 to 2003, he worked at Walgreen's as an assistant manager. Briasco did not believe that plaintiff was qualified for the position because he was not an expert on current employment law, had not worked in human resources for seven years, and gave "vague and unsophisticated" answers during his interview. When Briasco expressed his concerns to Iacobell, Iacobell insisted that Briasco hire plaintiff.

Plaintiff's responsibilities included: (1) managing Human Resources grievance procedures; (2) drafting Equal Employment Opportunity Commission ("EEOC") position statements in response to charges of discrimination; (3) coordinating witnesses for Illinois Department of Employment Security ("IDES") appeal hearings; (4) advising and counseling managers on the use of defendant's progressive discipline procedures; (5) reviewing and approving performance improvement plans; and (6) reviewing and approving FMLA paperwork.

Plaintiff became aware in his first 90 days of employment that Briasco had not wanted to hire him for the position, and the two developed a tense working relationship. In September of 2004, in his first performance evaluation, Briasco gave plaintiff a rating of 1.16 on a 2.00 scale, in the "meets expectations" range. In that review, Briasco mentioned "some clear miscommunications" with plaintiff and "areas requiring improvement, including the need to discuss interpretion [sic] of HR policy." Briasco did, however, give plaintiff a raise and a five percent performance bonus.

In November of 2004, plaintiff was diagnosed with high blood pressure and acid reflux disease, which required continuing medical care and occasional absences from work. Defendant had a progressive absence plan that allowed plaintiff five absences before a verbal warning and six absences before a written warning. Plaintiff was absent four times between his diagnosis and April 26, 2005, after he had been employed by defendant for one year and therefore was eligible for FMLA leave.

After April 2005, plaintiff took FMLA leave for medical treatment, except for one unexcused absence on June 24, 2005. On July 12, 2005, Briasco issued plaintiff a verbal warning (documented in writing) dated July 6, 2005, as a reprimand for plaintiff's June 24 absence. The warning stated that any additional sick days incurred prior to November 24, 2005, would result in additional discipline.

On July 11, 2005, plaintiff had an unexpected absence, but he was unable to see a doctor to identify the absence as relating to his medical condition until July 13, 2005. Plaintiff then applied for FMLA leave on July 14, 2005. Plaintiff requested that his FMLA leave be retroactive to July 11, 2005, and extend until July 11, 2006.

On July 15, 2005, Briasco issued plaintiff a written warning for the sick day plaintiff took on July 11. Plaintiff then filed a grievance on July 26, 2005, to reverse the written warning, which Briasco himself evaluated. Briasco believed that plaintiff requested FMLA leave in response to the written warning. On August 1, 2005, defendant approved plaintiff's request for FMLA leave and made it retroactive to July 11, 2005. Briasco, however, believing that defendant's policy was not to approve FMLA leave retroactively, decided that the approval of retroactive leave was inappropriate and changed plaintiff's FMLA leave period to begin on July 12, 2005, and end on July 12, 2006. Briasco backdated the document to August 1, 2006. After processing plaintiff's grievance, Briasco finally determined that FMLA leave could be extended retroactively to cover plaintiff's July 11 absence, and defendant removed the disciplinary action from plaintiff's file.

At some point during plaintiff's employment with defendant, Briasco and plaintiff had a meeting to discuss family and medical leave. A doctor and another employee of defendant had requested leave for the same medical condition, but the doctor requested a shorter leave period. Briasco joked to plaintiff, "I guess you heal faster when you are a doctor." Also at some point during plaintiff's employment, Briasco told plaintiff that he also suffered from acid reflux and treated his condition with a daily pill. He told plaintiff that he did not understand why plaintiff needed so many days off to treat his condition. Briasco did not, however, ever ask plaintiff to seek a second medical opinion regarding his condition.

On August 17, 2005, plaintiff received his annual evaluation. Briasco gave plaintiff a rating of 1.01 out of 2.00, in the "meets expectations" range, in the areas of: (1) mission and values; (2) managing the work environment; (3) active leadership; (4) quality; and (5) self-improvement. Briasco rated plaintiff as "below expectations" in the area of absences, stating, "Brian's unexcused absences are at an unacceptable level." The review also stated that plaintiff had "substantial lags in time between when work is assigned and when it is finished," and that plaintiff needed to "substantially improve his writing abilities."

After Briasco gave plaintiff his evaluation on August 17, 2005, three employees of defendant spoke to Briasco about their displeasure with plaintiff's job performance. Briasco then followed up with two division administrators, who told Briasco they had experienced "service issues" with plaintiff. One administrator stated that she did not receive sufficient guidance from plaintiff in finding new placements for employees whose jobs had been eliminated and that plaintiff "never had control over the process." She also stated that plaintiff did not return phone calls or voicemail messages and did not distribute one employee's resume as promised. Another administrator told Briasco that plaintiff was not sending 30-day notices regarding upcoming 90-day review deadlines, a task for which plaintiff was responsible, and that plaintiff had solicited a ...

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