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Delarama v. Illinois Dep't of Human Services

September 2, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CV 5163-Milton I. Shadur, Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge.

ARGUED MAY 5, 2008

Before CUDAHY, POSNERand ROVNER, Circuit Judges.

Elizabeth de la Rama brought*fn1 this lawsuit against her employer alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., interference with her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. and common law defamation. The district court granted the defendants' motion for sum-mary judgment and de la Rama appeals. We affirm.

I. Background

De la Rama is a Filipino-American who is employed as a registered nurse at Chicago-Read Mental Health Center (Chicago-Read), a residential facility for mentally ill adults that is run by the Illinois Department of Human Services (the Department). From January 2004 to January 2005, Mary Zukowski was de la Rama's supervisor. Pursuant to Chicago-Read's leave policy, de la Rama received 12 sick days per year, which accrued at a rate of one sick day per month. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not convey this information to her employer until much later. Instead, de la Rama sporadically submitted notes from physicians stating that she was ill. For example, on July 21, 2004, de la Rama called in sick but showed up at Chicago-Read that afternoon during a co-worker's retirement party. At the party she attempted to give Zukowski a doctor's note explaining that she was suffering from back pain and was unable to return to work for one week. Zukowski told her that they should discuss the matter later. When de la Rama could not find Zukowski after the party, she left the note with a co-worker.

Although de la Rama had exhausted her sick leave by this point, she continued to call in sick without explaining the nature of her illness.

On July 27, 2004, de la Rama provided her employer with a doctor's note stating that she was under medical care and could not return to work until August 10, 2004. The next day she spoke with a Human Resources Specialist who told her that in order to request medical leave, she needed to submit a written request and a completed "CMS 95" form. De la Rama did not submit a written request or a CMS 95 form and did not return to work on August 10. She had no further contact with Chicago-Read until August 19, when the Associate Director of Nursing called her to discuss her absence. On August 20, she submitted three more doctor's notes, one of which stated that she could return to work on August 23. She also submitted a note stating that she was requesting medical leave beginning on July 16, 2004 until an unknown date. The notes did not state her condition nor describe its severity. De la Rama did not return to work on August 23.

On October 4, 2004, de la Rama submitted a completed CMS 95 form, which explained that she suffered from fibromyalgia and a herniated disk. Chicago-Read retroactively granted her leave to the date of her last sick day, September 2, 2004. De la Rama returned to work on January 3, 2005. At de la Rama's request, she was assigned to a different unit under a new supervisor upon her return.

While de la Rama was absent from work in July and August, the work days she missed were treated as unauthorized absences (UAs). She accrued a total of 24 UAs. After de la Rama returned to work in 2005, she, her union representative and her new supervisor attended a pre-disciplinary meeting regarding these UAs. The parties decided that de la Rama would not be disciplined for the UAs but that future UAs would trigger a disciplinary proceeding against her. De la Rama pursued a grievance in order to remove the UAs from her employment record. At the third-level grievance hearing, management and de la Rama's union representatives agreed that the absences would remain on her record but would never be used in any disciplinary proceedings against her.

On September 9, 2005, after receiving a right to sue letter from the Equal Employment Opportunity Commission, de la Rama filed this lawsuit alleging that the Department had discriminated against her because of her race and national origin. In addition, de la Rama complained that the Department violated the FMLA by refusing to allow her to take leave for a serious medical condition. She also brought a common law defamation claim against Zukowski, alleging that Zukowski falsely claimed that de la Rama's absences were unauthorized and that Zukowski made false statements about her during the third-level grievance hearing. On January 5, 2007, the district court granted summary judgment for the defendants. This timely appeal followed.*fn2

II. Discussion

We review a grant of summary judgment de novo, "viewing all facts and the reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). Summary judgment is appropriate only "where 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' " Id. (quoting FED. R. CIV. P. 56(c)). A nonmoving party cannot defeat a motion for summary judgment with bare allegations. Smith v. Potter, 445 F.3d 1000, 1006 (7th Cir. 2006); see also Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608, 612 (7th Cir. 2005)(to defeat summary judgment, nonmoving party must adduce more than "a scintilla of ...

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