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Boring v. World Gym -- Bishop

March 17, 2009

SHIRLEY BORING, PLAINTIFF,
v.
WORLD GYM -- BISHOP, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Defendants, World Gym -- Bishop, Inc., Planet Fitness, Inc., World Gym Fitness Center Montrose, Inc., World Gym Wacker, Inc., World Gym -- Palatine, Inc., World Gym -- Indiana, Inc., World Gym -- Racine, Inc. (collectively "Defendants" or "World Gym"), have moved for summary judgment on the five remaining claims of Plaintiff Shirley Boring's Third Amended Complaint. I previously dismissed Count III, Boring's claim for intentional infliction of emotional distress, as preempted by the Illinois Human Rights Act.*fn1 The remaining claims are: Count I, violation of the Americans with Disabilities Act ("ADA"); Count II, wrongful and retaliatory discharge; Count IV*fn2, violation of the Family and Medical Leave Act ("FMLA"); Count V, violation of the Fair Labor Standards Act ("FLSA"); and Count VI, a claim for liquidated damages for unpaid overtime. For the following reasons, Defendants' motion for summary judgment is granted in part and denied in part.

I. PRELIMINARY ISSUES

In addition to their motion for summary judgment, Defendants have also filed various motions to strike, which I address first.

A. Defendants' Motion to Strike Plaintiff's Local Rule 56.1(b)(3)(B) Response

Defendants move to strike Boring's Local Rule 56.1(b)(3)(B) response to Defendants' statement of uncontested facts because it contains "additional facts, rambling argumentative supposition and conjecture, unsupported conclusory assertions of fact and law, and fails to cite to the Record." To some extent, each of these accusations is true. Many of Boring's responses (for example, responses to paragraphs 12-15, 20, 22, 23, 28, 29, 30, 35, 55, 59, and 60) include additional facts that should have been separately delineated in Boring's separate statement of additional facts as required by the Local Rule. I disregard these additional, unresponsive facts from the record.*fn3 To the extent that Boring's responses are unresponsive and/or conclusory, I have deemed them stricken from the record and afford them no weight in the following analysis. This applies to Boring's responses to paragraphs 7, 8, 12, 13, 20, 27, and 30. With regard to those responses that do not deny the allegations in the numbered paragraphs with citations to supporting evidence in the record (i.e., responses to paragraphs 18, 22, 26, 33, 43, 49, 50, 53, and 58), I have deemed them admissions. See McGuire v. United Parcel Service, 152 F.3d 673, 675 (7th Cir. 1998) ("An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission.") (citations omitted).

B. Defendants' Motion to Strike Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Facts

Defendants further object to and move to strike Boring's statement of additional facts on the grounds that they contain allegations that are conclusory, argumentative, misleading, improperly supported and irrelevant to the arguments raised in Defendants' motion. See U.S. Dist. N.D. Ill. Local Rule 56.1(b)(3). Many of Boring's statement of additional facts violate the requirements of the Local Rules because they mischaracterize the testimony on which they rely (paragraphs 1, 14, 21), they are immaterial or irrelevant to the pending motion (1, 2, 5, 12, 14-22, 31), are duplicative (2, 6, 11, 14-19, 26-28, 30, 34, 38), or are unduly lengthy (this is true of almost all of Boring's additional statement of facts -- paragraph 18 is 18 sentences long). A few particularly egregious examples include: paragraph 5, in which Plaintiff includes a long statement of facts about her diagnosis with scleroderma in 2006 when this case involves her employment at World Gym between 2000 and 2004 and when scleroderma is not included as an impairment in her complaint; paragraph 21, in which Plaintiff not only blatantly contradicts her deposition testimony regarding doctor's advice concerning the lighting in her office but also provides a citation to the record that has to do with temperature and not with lighting; and paragraph 31, which includes the wholly irrelevant statement "When Jason Phillips, the Phillips' son, was fired, Jason called Boring a mother fucker and took a chair and threw it across the room and was like a madman."

I am ruling on Defendants' motion to strike Plaintiff's statement of additional facts consistent with my ruling on Defendants' motion to strike Plaintiff's response to Defendants' statement of facts. I disregard and strike those facts that are either duplicative or irrelevant and those that fail to properly cite to the record.

C. Defendants' Motion to Strike Declaration of Dr. Phillip Adjei

Defendants' motion to strike portions of the declaration of Dr. Phillip Adjei is granted.

Dr. Adjei has been Boring's treating physician since June 2001 for her esophagus and acid reflux. Boring's initial Rule 26(a)(1) disclosures disclosed Dr. Adjei as "Plaintiff's Gastroenterologist. Knowledge of Plaintiff's medical condition, impairments, and limitations." Boring's two subsequent, supplemental Rule 26(a)(1) disclosures also listed Dr. Adjei and included the exact same language regarding the subject of the information for which Dr. Adjei was to testify. Discovery was closed by stipulation of the parties on July 10, 2008. On November 18, 2008, Plaintiff submitted the declaration of Dr. Adjei in conjunction with the filing of her Rule 56.1(b)(3)(B) Responses and Rule 56.1(b)(3)(C) Statement of Additional Facts.

While only disclosed as a fact witness, portions of Dr. Adjei's declaration include expert testimony, and this is improper. See Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) (treating physicians must be disclosed pursuant to Rule 26(a)(2)(A) as experts if they are to provide expert testimony). Specifically, Dr. Adjei's declaration contains statements relating to the purported causation of Boring's condition and other opinions and conclusions based upon his professional knowledge. Accordingly, I am striking the following portions of Dr. Adjei's declaration: the portions of paragraph 3 that relate to the causation of Plaintiff's condition and various other doctors' purported diagnoses of the same condition as well as paragraphs 4, 6, 7, and 8. I also strike the corresponding paragraphs included in Plaintiff's Statement of Additional Facts: paragraphs 8 and 10.

D. Defendants' Motion to Strike Declaration of Mamadou Beye

Defendants have also moved to strike the Declaration of Mamadou Beye, which was filed as an exhibit to the fourth amended complaint. Shortly after the filing of the fourth amended complaint, the parties reached and filed a stipulation in which Boring agreed to withdraw the fourth amended complaint, along with the supplemental disclosures and additional discovery that contained the categories of anticipated testimony in Beye's declaration. As a result, Beye's declaration is not a part of the record and any reliance upon it must be stricken. I am granting Defendants' motion to strike the declaration of Mamadou Beye, including paragraphs 51, 52, and 53 of Plaintiff's Statement of Additional Facts which rely on the Beye declaration.

II. FACTUAL BACKGROUND

In light of my rulings on the preliminary issues, the following are clusters of material facts to which there is no genuine issue of dispute:

A. The Parties

Boring was hired at World Gym, an Illinois corporation, in June of 2000 to perform data entry and was quickly promoted to the positions of accounts payable and secretary. Boring's resume states that during her employment at World Gym she was "office manager of World Gym," "managed 8 full-time employees," "assisted company controller in budgeting, locating and reducing company losses," "recommended changes that increased the monthly collections of bad debt by the outside collections company," and was "responsible for accounts payable for 6 locations." Boring's job duties included helping to implement revisions to and produce World Gym's employee handbook; making sure there was enough money in the payroll; making arrangements with leasing companies for the payment of loans; ordering, picking up, and occasionally delivering supplies; paying all of the bills for each gym location, including writing checks; typing letters; and at times overseeing the paperwork of another World Gym employee, Arletha Thomas.

Al Phillips is the president and sole owner of World Gym. Barbara Phillips, Al's wife, is an employee of World Gym and does not have any ownership interest. At some point during her employment at World Gym, Boring was close with both Al and Barbara Phillips on a professional and personal level.

B. Boring's Termination from World Gym

On August 16, 2004, Al Phillips terminated Boring's employment at World Gym. The facts leading up to the termination are as follows: On the evening of Saturday, August 7, 2004, while dining at a restaurant in Wisconsin with his wife and friends, Al Phillips received an "emergency call" from Boring. Al Phillips was shocked to hear from the restaurant that he had an emergency phone call because his mother was in the hospital and his daughter was driving to South Dakota. Boring knew about Al's mother and about Al's daughter's travel plans and about where and when Al would be having dinner that night. During the phone conversation at the restaurant, Boring accused Barbara Phillips of making about seven harassing and threatening phone calls to Boring earlier that day in which Barbara yelled, "aren't you dead yet, you bitch, from the brain tumor?" Al Phillips informed Boring that Barbara had been with him all day and therefore he knew that she could not have made such phone calls. But, in any event, Al Phillips told Boring that he would consider her accusations and investigate the matter.

According to Boring, Barbara Phillips previously, beginning around July 3, 2004, made other phone calls and left voice messages on Boring's phone saying "watch your back. Watch your car. Watch your house, you bitch." However, Boring has no record of those phone calls or evidence of any voice messages from Barbara. According to Boring, she discussed at least one of the voice messages with her mother. Barbara denies ever making any harassing phone calls to Boring.

Approximately two days after receiving Boring's call at the restaurant, Al Phillips informed Boring via letter that due to her disturbing call on the evening of August 7, Boring would be suspended from work until the incident was investigated. Based on the inappropriateness of the phone call and his determination that Boring's accusations against Barbara were fictitious, Al Phillips terminated Boring's employment on August 16, 2004.

C. Boring's Medical Conditions

In 2001, Boring was diagnosed with advanced gastric reflux, and in 2003 she was diagnosed as having hemangioma, a lesion on her skull, which was not cancerous and did not need to be surgically removed.*fn4 Dr. Citow, a specialist in neurosurgery, told Boring that he doubted her brain lesion was causing much symptomology and that it could be easily removed. On multiple occasions, Boring told Al Phillips that she had doctor's appointments to treat her "brain cancer" and that she needed to undergo surgery for "brain cancer." However, Boring was never told by any physician that she had cancer. She also testified in her deposition that she does not have cancer and that she has never made allegations about having cancer.

During her employment at World Gym, Boring suffered from very severe headaches. Though not based on any physician's recommendation, Boring needed to turn her office lights off and close the blinds for five to ten minutes a few times a day while she was at work in order to deal with her headaches. Boring had difficulty eating certain foods, experienced chest pains while eating, and at times felt like she couldn't breathe. She kept an oxygen tank in her office, which Boring says she used on one occasion. She also felt nauseated, experienced burning in her stomach and esophagus, and suffered from frequent diarrhea and migraine headaches. Boring received treatment for her gastric reflux with various medications and a fundoplication surgery. One of Boring's doctors attributed most of her symptoms to "suboptimally treated gastroesophageal reflux disease" and stated that "her psychometric assessment demonstrated a poor quality of life which is attributable to her condition" as well as "a component of reactive depression."

Boring was also diagnosed with fibromyalgia, which she had between 2000 and 2004. Fibromyalgia is not pled in Boring's third amended complaint as an "impairment" and Boring testified that her fibromyalgia did not restrict her in performing any of her work duties during her employment at World Gym. Also between 2000 and 2004, Boring had other medical diagnoses, which included hermangiomes on the spine, Raynaud's disease, esophogeal motility, problems with her vision, chronic pain, chest pains, and neurological problems.

During the time she was employed at World Gym, Boring's workload was neither changed nor reassigned. World Gym never altered its expectations of Boring's workload. Although Boring had to rush through some of her work to get it done before doctor's appointments, she was always able to perform all of her work duties. When she took days off of work for doctor appointments or medical procedures, she was able to return to work in her same position. Her esophagus condition did not restrict her in performing any of her work duties between 2000 and 2004. Boring explained her medical conditions to World Gym and World Gym understood what Boring told them about her ...


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