The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
In November, 2006, Plaintiff Robbie Jordan filed a complaint against Defendants Belt Railway Company of Chicago ("BRC") and Timothy Coffey for relief from race discrimination and violations of the Family and Medical Leave Act ("FMLA"). Defendants now move for summary judgment on all claims. Jordan cross-moves for summary judgment on his FMLA claims. For the following reasons, I grant in part and deny in part Defendant's motion; I grant Jordan's motion in part and deny it in part.
Summary judgment should be granted when "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 facts presented are to be construed in a light most favorable to the nonmoving party. Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
III. Statement of Relevant Facts
Defendant BRC hired Plaintiff Robbie Jordan in 1993. Jordan was working as a yardmaster in August, 2006, when he sought intermittent medical leave for depression and anxiety. A primary responsibility of yardmaster is to follow company and industry safety rules and procedures while directing workers engaged in the makeup and breakup of trains and switching inbound and outbound traffic in the railyard. Defendants cite four incidents of formal discipline actions for workplace infractions involving Jordan that occurred between March and July 2006. Those infractions involved conduct related to communication altercations, failure to report to work on time, and failure to perform duties. Defendants also cite at least ten incidents for which Jordan received "informal counseling" for certain infractions such as excessive telephone use for personal calls, disorganized crew assignments, train delays, absenteeism and numerous communication issues. Jordan characterizes the counseling as harassment and discriminatory treatment (unrelated to his FMLA claims).
Defendant Timothy Coffey served as the Director of Human Resources for Defendant BRC throughout the events stated here.
On August 3, 2006, Jordan submitted to Coffey a Certification of Health Care Provider completed by his psychologist. The Certification indicated that Jordan was experiencing a serious health condition under the FMLA which would require him to take off work intermittently in order to attend doctor appointments and provide "a day off work some weeks." The form further stated that Jordan would not be able to work on occasions when "there is actual or perceived harassment on job," at which times Jordan would be unable to perform "safety type related tasks."
After receiving the form, Coffey sent a letter to Jordan granting up to twelve weeks of unpaid, protected leave. In the letter, Coffey acknowledged that Jordan had requested intermittent leave but explained that BRC could grant only a full leave because of the "cited essential functions that [Jordan was] unable to perform." In the same letter Coffey attached a HIPAA Privacy Authorization form and requested that Jordan authorize his physician to speak with BRC about his condition. Jordan declined to execute the HIPAA authorization form. Jordan submitted a note written by his psychologist on August 30, 2006, stating that he was able to return to work. Coffey responded in a letter on August 31, 2006, that the faxed note was not sufficient, and that in order to return to work, Jordan must have his doctor complete the company's standard return-to-work form. He also enclosed another HIPAA authorization form, asserting that the release would allow BRC "access to information pertinent in determining jobrelated fitness for duty." In a face-to-face meeting on that date, Coffey also informed Jordan that he would need to undergo a fitness for duty examination before he could return to work.
On September 18, Jordan emailed Coffey to inform him that he would be meeting with his psychologist on September 19, 2006. He would request the doctor to complete the return-to-work form and obtain answers to any specific questions regarding his condition at that time. The next day, Coffey instructed Jordan to have the doctor complete the form and then make arrangements to secure a return to work physical with a company-designated physician; Coffey did not give Jordan a list of questions to ask his physician for clarification. On September 19, 2006, Jordan met with his psychologist, who completed the return-to-work form. Jordan brought the form to Coffey's office on the same day and requested a copy of the form before he left the office. The parties agree that Coffey altered the portion of the form on which Jordan had written "Forced leave" to read "FMLA leave," but they disagree as to the reason that Coffey made the alteration. Jordan contends that Coffey made the alteration because Coffey wanted to demonstrate that he would not tolerate Jordan's complaint against Defendants' unlawful FMLA practices. Coffey claims that he altered the form to clarify to the doctor who would conduct Jordan's return to work physical that his leave of absence was related to medical rather than disciplinary reasons. After the form was altered, Jordan requested a copy of the unaltered form and obtained a copy from administrative aide Cindy Homan by grabbing it out of her hands. Homan immediately complained to Coffey about Jordan's conduct.
On September 22, 2006, BRC scheduled an investigation to ascertain facts and determine Jordan's responsibility in connection with his "quarrelsome, discourteous, and insubordinate behavior" toward Homan and Coffey. Because Jordan was still on leave, BRC postponed the investigation until his return to work.
On October 2, 2006, Jordan attended a return-to-work physical examination arranged by Coffey. After the examination, the physician referred Jordan to receive an examination concerning his mental condition in order to return to work. Jordan did not make an appointment at the referred facility.
Jordan filed the current action against Defendants on November 03, 2006, alleging violations of both the FMLA and 42 U.S.C. § 1981.*fn1 At the time of filing, Jordan was still on leave from the company.
In a letter dated January 9, 2007, BRC notified Jordan that his maximum leave under FMLA had expired and that he was accumulating unexcused absences. In that letter, BRC asked Jordan to have his treating physician or other health care provider treating him provide updated medical information regarding the status of his psychological conditions. Jordan did not respond to the communication.
On March 22, 2007, an investigation of the September 20, 2006 incidents took place. Jordan requested that his attorney be present for his questioning, but the request was denied pursuant to BRC's collective bargaining agreement that prohibits individual representation at grievance proceedings. Jordan declined to answer any questions relating to the September 20 incident. Defendants discharged Jordan as a result of his testimony at the investigation. Defendants now move for ...