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Phipps v. County of McLean

October 7, 2008


The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge


Before the Court are cross-motions for summary judgment. Plaintiff filed her motion for summary judgment [Doc. 29] on April 1, 2008. On April 22, 2008, Defendants filed a motion for extension of time to respond [Doc.34] to Plaintiff's summary judgment motion. Also on April 22, 2008, Defendants filed a motion for summary judgment [Doc. 36]. For the reasons set out below, Plaintiff's motion for summary judgment is DENIED and Defendants' motion for extension of time and motion for summary judgment are GRANTED.


In 2002, McLean County Nursing Home hired Plaintiff Debbie Phipps as a full-time Certified Nursing Assistant. Plaintiff usually worked the 11 p.m. to 7 a.m. shift and had every other weekend and every other Monday off. (Def.'s SJ Mem. SUMF ¶ 2) On October 2, 2006, the nursing home granted Plaintiff intermittent leave, under the federal Family and Medical Leave Act, due to a condition that causes Plaintiff to suffer episodes of anaphylactic shock. (Ptf.'s SJ Mem. SUMF ¶ 4) Dr. Daniel Marley, who certified Plaintiff's need for medical leave, found that her episodes of shock were unpredictable and that the duration of her condition was unknown. (Def.'s SJ Ex. 3, Dr. Marley's Cert. at p. 1) From October to mid-December of 2006, Plaintiff's use of her leave time was relatively sporadic. She was absent often, but not for weeks at a time. (Def.'s SJ Ex. 4, Phipps' Attendance Record at McLean County Nursing Home for October 2006 -- January 2007)

At some point in mid December, Plaintiff spoke with Donald Lee, an administrator at the nursing home. During that conversation, Mr. Lee informed Plaintiff that she could not utilize accumulated paid sick-time in her personal "reserve" account unless she was absent from work for at least five consecutive days. (Def.'s SJ Mem. SUMF ¶ 14) After the conversation, Plaintiff began a six-week period -- from approximately December 12, 2006 to January 24, 2007 -- in which she was absent from each of her scheduled shifts. During this period, Plaintiff would call into work before each scheduled shift to notify her shift supervisor that she would be absent. (Def.'s SJ Mem. SUMF ¶ 13) Plaintiff made sure to notify her shift supervisor because she was aware of a personnel policy at the nursing home that allowed management to terminate an employee who failed to show up or call in for three scheduled shifts ("no call, no show policy") (Def.'s SJ Ex. 1, McLean County Nursing Home Personnel Policy at p. 5; Ptf.'s SJ Ex. 7, Phipps Dep. at pp. 78-80) Before each shift, during this six-week period, Plaintiff apparently felt symptoms that she normally associated with the onset of anaphylactic shock (Phipps Dep. at pp. 40, 53) However, Plaintiff did not actually suffer an episode of shock at any time in January 2007. (Phipps Dep. at p. 29)

On the afternoon of Friday, January 26, 2007, Plaintiff went to the nursing home and told Matthew Riehle, the Director of Nursing, that she was feeling better and wanted to return to work. (Ptf.'s SJ SUMF ¶ 7) Riehle told Plaintiff that before she could return to work, she was required to produce a physician's certification indicating that she was medically cleared to perform her job duties ("fitness-for-duty certification") (Def.'s SJ SUMF ¶ 18) Plaintiff stated that she would be able to obtain one without a problem. (Phipps Dep. at pp. 56-57) During their conversation, Plaintiff asked Riehle whether she was on the schedule for her normal shift that night. The parties dispute whether Riehle answered that question, but it is undisputed that the schedule was posted in the report room at the nursing home and that nothing prevented Plaintiff from accessing it. (Phipps Dep. at p. 62) Plaintiff was, in fact, scheduled for shifts on Friday January 26, Saturday, January 27, and Sunday, January 28 of 2007. (Def.'s SJ Ex. 4, Phipps' Attendance Record for January 2007; Ptf.'s SJ Mem. at p. 2)

Plaintiff failed to show up for work on January 26-28 and did not call in to notify her shift supervisor that she would be absent. (Phipps Dep. pp. 64-66) On Tuesday, January 30, 2007, Plaintiff called the nursing home and Riehle notified her that her employment was being terminated for violating the nursing home's no call, no show policy with respect to her three consecutive January 26-28 absences. (Ptf.'s SJ Resp. SUMF ¶ 21)

On May 18, 2007, Plaintiff filed suit in Illinois state court seeking damages for Defendants' alleged violation of her rights under the FMLA. On June 19, 2007, Defendants removed the case to federal court. And in April 2008, the parties filed the instant cross-motions for summary judgment.


Summary judgment should be granted 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). The moving party has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the movant has met its burden, to survive summary judgment, the "non-movant must show through specific evidence that a triable issue of fact remains [as to] an issue on which [s]he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); see also Celotex Corp., 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).

This Court must nonetheless "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). In doing so, this Court is not "required to draw every conceivable inference from the record -- only those inferences that are reasonable." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Therefore, if the record before the court "could not lead a rational trier of fact to find for the non-moving party," then no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, in ruling on a motion for summary judgment, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).


The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., provides qualified employees with up to twelve workweeks of unpaid, job-protected leave per year for family or medical reasons. A core right under the FMLA is the employee's right to be restored to the position she held prior to approved leave, or an equivalent position. 29 U.S.C. § 2614(a)(1)(A), (B). Importantly, however, the FMLA does not require employers to reinstate employees who would not be eligible for reinstatement due to reasons unrelated to family or medical leave. 29 U.S.C. § 2614(a)(3)(B); Hubbard v. Blue Cross Blue Shield Ass'n, 1 F. Supp2d 867, 875 (N.D. Ill. 1998). Unlike some other employment-related federal statues, the Act does not require an aggrieved employee to first exhaust administrative remedies before filing suit in federal court. See Manos v. Geissler, 377 F. Supp.2d 422, 427 (S.D.N.Y. 2005); Krohn v. Forsting, 11 F. Supp.2d 1082, 1085 (E.D. Mo. 1998).

Employees may exercise their right, under the FMLA, to time away from work in different ways. Some employees may need to take medical leave in a single block, e.g. for twelve consecutive weeks. Other employees may have medical conditions that require them to use leave time intermittently, e.g. one or two days a week, or even for several weeks in a row. See 29 C.F.R. ยง 825.203(a). Generally, intermittent leave is appropriate when an employee has a single qualifying reason for medical ...

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