The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court are defendant City of Chicago's ("Defendant" or "City") motion for summary judgment against plaintiff Darlene Murphy ("Plaintiff" or "Murphy"), and Plaintiff's motion for summary judgment against Defendant. For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED, and Defendant's motion for summary judgment is DENIED.
Plaintiff is a former employee of Defendant, working at the City Department of Streets and Sanitation ("Department"). Defendant hired Plaintiff on June 14, 2000 as a Cashier in the Department. On or about April 16, 2001, Plaintiff was appointed to the position of Administrative Assistant II in the Department's Bureau of Electricity. In February 2005, Plaintiff became a property custodian in the Department's Bureau of Traffic Services. On April 1, 2005, Plaintiff was appointed to the position of Hand Laborer in the Department's Bureau of Street Operations. As a Hand Laborer, Plaintiff reported to Joseph Chojnowski.
On May 1, 2006, Plaintiff was promoted to the position of probationary career service Sanitation Laborer in the Department's Bureau of Sanitation. As a probationary laborer, Plaintiff was a member of Laborers Local 1001 union and covered by the terms of the applicable collective bargaining agreement. Plaintiff was provided with a copy of the Collective Bargaining Agreement between Locals 1001, 1092 and 76 of the Laborers International Union of North America and the City of Chicago ("CBA") when she became a Hand Laborer.
In the position of Sanitation Laborer, Plaintiff's job responsibility was to work on a garbage truck. Plaintiff was assigned to the 25th Ward and reported to Ward Superintendent Vincent Sanchez in May 2006. Plaintiff held this position of laborer at the time of her termination in August 2006.
Plaintiff's Request for Leave of Absence
Plaintiff requested FMLA leave in August 2002 because of an injury she sustained in a car accident. At that time, Plaintiff was employed by the Department as an Administrative Assistant II. In or around August 2002, Plaintiff completed, signed and submitted the FMLA LOA application, as well as the LOA form. On August 27, 2002, Plaintiff received a letter from the Department indicating that she qualified for FMLA leave at the time of her request. Plaintiff's request to take FMLA leave was approved on August 28, 2002 and lasted approximately one month from August 2002 to September 2002. Subsequent to August 2002, Plaintiff has not submitted any FMLA LOA applications.
In September 2004, Plaintiff received a three-day suspension for excessive absenteeism. The basis for the suspension was that Plaintiff had missed 44 days without pay as of September 1, when the suspension was issued.
In July 2005, Plaintiff claims that she informed Craig Dorsey, her crew chief, that she had throat infections and that she might want to take an FMLA LOA. Dorsey was himself a laborer with no authority to make decisions with respect to the LOA. Plaintiff asked Dorsey to look into whether she was eligible to receive it. The condition which Plaintiff contends warranted an FMLA LOA was a peri-tonsillar abscess. Plaintiff claims this was diagnosed in early 2005; Defendant claims this condition was diagnosed in January 2006 by Dr. Levy. Dr. Levy described the symptoms of peri-tonsillar abscess to include fever, swelling, and anorexia. Dr. Levy noted that Plaintiff was showing symptoms in August 2005, which led to recurrent episodes of inflection that needed to be cleaned out through an invasive, surgical procedure. Dr. Levy referred Plaintiff to Dr. Daniel Kurtzman, a nose and throat specialist. Dr. Kurtzman diagnosed Plaintiff with recurrent peri-tonsillar abscess.
Plaintiff submitted a note to Craig Dorsey, who worked under Chojnowski, on a prescription pad from the office of Dr. Levy dated January 25, 2006. The note stated that on January 23, 2006, Plaintiff had a procedure to drain the peri-tonsillar abscess. The note also stated that Plaintiff would have a surgical procedure on February 3, 2006. The note requested that she be excused from work until January 30, 2006. Plaintiff did not have the surgery that was referenced in the January note. The dates of January 23 through January 25, 2006 were coded as vacation days in Plaintiff's time and attendance record and were not counted against her as unexcused absences.
At some point, Plaintiff claims that she requested three to five days off from Joseph Chojnowski, the Program Director of the Neighborhood Enhancement Program in the Department of Streets and Sanitation. Plaintiff did not ask Chojnowski for an FMLA leave. However, Plaintiff claims she spoke to Chojnowski about FMLA leave. Chojnowski does not recall that Plaintiff ever told him she needed three to five days off to have medical treatment done on her throat.
On February 16, 2006, Plaintiff went to see Dr. Kurtzman for a preoperative examination. Dr. Kurtzman had scheduled a surgery for Plaintiff on February 24, 2006. Dr. Kurtzman gave Plaintiff a signed doctor's note. The note stated that Plaintiff "has had recurrent throat abscesses four times this year, needs to have a small tonsillar remnant removed to prevent her from getting sick again. Surgery is 2/24." Plaintiff did not go through with the surgery.
In May 2006, the 25th Ward Office, where Plaintiff was assigned, received notes requesting Plaintiff be excused from work on June 5, 2006 and July 13 and 14, 2006. Dr. Levy explained that while his staff wrote notes to excuse Plaintiff for work on those dates, she was not treated or seen by anyone in his office for a medical reason on these dates: January 25-30, 2006; October 25-29, 2005; November 4, 2005; January 31, 2006; April 12-13, 2006. Dr. Levy admitted that those notes were written because Plaintiff requested the notes to excuse her from work on those dates.
Plaintiff claims that she verbally requested an FMLA leave from Vincent Sanchez in June or July 2006, because she would need surgery on her throat. At this time, Sanchez was the 25th Ward Superintendent. Plaintiff did not request or submit a LOA form to Sanchez or any other employee in the Department requesting an FMLA LOA. Plaintiff did not provide Sanchez with a doctor's note documenting her medical condition. Plaintiff claims that Sanchez told her she was not entitled to take a LOA. As a Ward Superintendent, Sanchez was not authorized to approve or deny employee requests to take time off for a medical leave.
In July 2006, Plaintiff received and signed an oral reprimand from Vincent Sanchez for missing three "sick no pay" days in the quarterly months of April 3 through June 20, 2006. Defendant claims Plaintiff did not explain to Sanchez the reason that she missed those three days. Plaintiff claims that she presented Sanchez with a doctor's note stating she needed surgery and needed FMLA leave. Plaintiff asserts that when she was sick, she gave her doctor's notes to Sanchez's clerk who went by the nickname "Skippy." Plaintiff claims that she provided the Defendant with a doctor's note on every day she was absent from work.
On August 14, 2006, Plaintiff was terminated from her position, because she had 24 "unexcused" absences between January 2005 and August 16, 2006. Defendant asserts that Plaintiff's absences were counted as unexcused because Plaintiff was not entitled to take sick days off without having an FMLA-approved leave request on file. Further, Plaintiff did not provide letters from her doctor on official letterhead to document that she was off work due to a medical condition. ...