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Turner v. Adidas Promotional Retail Operations

March 31, 2009


The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer


Plaintiff Kristopher Turner ("Turner") filed this action against his former employer, Defendant Adidas Promotional Retail Operations, Inc. ("Adidas"). Turner alleges that Adidas interfered with his rights under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), and retaliated against him for exercising those rights when it terminated his employment. In addition, Turner alleges that Adidas violated the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161 et seq. ("COBRA") by failing to notify him of his rights to extended medical coverage following his termination. Finally, Turner brings a claim for intentional infliction of emotional distress ("IIED") under Illinois law. Defendant now moves for summary judgment on all three counts of Plaintiff's complaint and, for the reasons stated here, the motion is granted.


The following facts are set forth in the parties' Local Rule 56.1 statements and responses, and are not in dispute, unless otherwise indicated. Where a party's response to a Local Rule 56.1 statement of fact does not directly contradict the fact in question and the underlying support for the fact is sound, the court deems that fact admitted.

Turner worked in the Adidas retail store in Aurora, Illinois from April 27, 2004 through June 22, 2006. He began his employment as a temporary, part-time worker on the store's sales floor and became a full-time employee in July 2004. (Def.'s Local 56.1(A)(3) Statement of Uncontested Material Facts in Support of Its Motion for Summary Judgment (hereinafter "Def. LR 56.1 Stmt.") ¶¶ 3-4.) Some time before February 2006, Turner was transferred to another full-time position in the store's stockroom and at the time of his discharge held the title of "stockroom associate." (Def. LR 56.1 Stmt. ¶ 5; Turner Dep. 10; Sullivan Dep. 37.) As a stockroom associate, Turner typically worked from 8:00 a.m. to 3:00 or 4:00 p.m., Monday through Friday. (Def. LR 56.1 Stmt. ¶ 8.)

On February 1, 2006, a ladder fell and struck Turner on the head while he was working in the stockroom. The extent of Turner's resulting injury is unclear. Turner characterizes his condition as a "severe closed head injury," without citation to any extrinsic evidence such as medical records or a physician's report. (Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Facts That Require Denial of Defendant's Motion For Summary Judgment (hereinafter "Pl. 56.1 Stmt. of Additional Facts.") ¶ 4.) It is undisputed that the injury caused Turner to seek repeated leaves of absence from work. The amount of time off he requested is not entirely clear from the record, but appears to have begun no later than May 1, 2006 and continued through June 14, 2006. Each time Turner sought leave, he furnished a note from a physician, explaining his need to be excused from work. (Def. LR 56.1 Stmt. ¶¶ 7, 9; Turner Dep. 14, 19-20, 21-22, 99, 123-26; Turner Dep. Exs. 2, 13, 14, 15, 16.) The amount of leave time sought in these notes is unclear, but the final note requested one week. Each time Turner or one of his physicians submitted a note to Adidas, his request for time off was granted. (Def. LR 6.1 ¶ 9.) In addition, Adidas reduced Turner's hours following the accident so that he could attend doctors' appointments and physical therapy sessions. (Pl. 56.1 Stmt. of Additional Facts ¶ 11.)

When Adidas grants a leave of absence from work due to illness or injury, the employee bears the responsibility under company policy of notifying Adidas whether he plans to extend the leave or return to work. (Def. LR 56.1 Stmt. ¶ 12; Meriwether Dep. 19, 23-24.) If an employee fails to notify Adidas, Adidas will attempt to contact the employee to ask whether he will be returning to work or seeking a further leave of absence. (Def. LR 56.1 Stmt. ¶12; Meriwether Dep. 19, 23-24.) An employee who does not supply a physician's note seeking to extend his leave of absence is returned to the work schedule. (Def. LR Stmt. ¶ 12.) An employee who has been returned to the work schedule but does not show up for a scheduled shift may be treated as having abandoned his job. (Def. LR Stmt. ¶ 6, 12; Lewis Dep. 35-36; Meriwether Dep. 27-31, 29-40.) Defendant's employment handbook defines job abandonment (a bit awkwardly) as follows:

Employees who do not show for their shift and fail to notify the manager within twenty-four hours and fifteen minutes of that shift, excluding days the store is closed, will have been assumed to have voluntarily quit without notice and is considered job abandonment. (Def. LR 56.1 Stmt. ¶ 6; Adidas Retail Work Rules, Turner Dep. Ex. 7, § V.) As part of his initial training at Adidas, Turner received instruction regarding the company's employment policies, and Turner confirmed in his deposition that he had been informed of this policy. (Def. LR 56.1 Stmt. ¶ 6; Turner Dep. 103-104.)

Throughout his recovery and absence from work, either Turner or one of his physicians provided Adidas with physician's notes requesting medical leave of absence from work. (Def. LR 56.1 Stmt. ¶ 9.) The total period of these requested absences is, as stated, unclear. The parties agree, however, that on May 1, 2006, Adidas received a note from Dr. Edward Blumen stating that Turner should not return to work for one week, and an unspecified number of doctors' notes after that date, continuing through June 7, 2006. (Pl. LR 56.1 Stmt. of Additional Facts ¶¶ 14, 16, 17; Def. Resp. to Pl. LR 56.1 Stmt. of Additional Facts ¶ 16.) Upon the expiration of the leave period covered by each note, Debbie Sullivan ("Sullivan"), Turner's store manager, contacted Turner to let him know that he would be returned to the schedule unless he provided another note requesting to further extend his leave. (Def. LR 56.1 Stmt. ¶ 13.) Sullivan also testified that continuing into early June 2006, she called Turner each week when he did not appear at work. (Sullivan Dep. at 75) Turner himself testified that after Ms. Sullivan received a note from his doctor, she would call him to confirm that the note had been received and that his leave was approved (Turner Dep. 28-29); although he later submitted an affidavit in which he denied that Adidas's employees contacted him each time his medical leave was extended, he did not identify any occasions on which Sullivan failed to contact him other than on dates after June 15, 2006. (Turner Aff., Ex. A to Pl. LR 56.1 Resp. ¶¶ 9, 12.)

Jamie Meriwether, a benefits manager with Adidas, testified that on several occasions during the five-month period between Turner's injury in February 2006 and his discharge in June 2006, she called Turner and left messages asking that he contact her about requesting a leave of absence. (Def. LR 56.1 Stmt. ¶ 10; Meriwether Dep. 20-21.) Meriwether testified that Turner neither returned her calls nor completed the requested paperwork. (Def. LR 56.1 Stmt. ¶ 27; Turner Dep. 20-21; Meriwether Dep. 19-21.) Turner denies that Meriwether ever contacted him about completing FMLA paperwork, and it is undisputed that he did not submit any such request. (Pl. LR 56.1 Resp.¶ 10.) Nevertheless, Adidas did treat Turner's absences from February 2006 through his termination in June 2006 as FMLA leave, and all of his requests for time off accompanied by a physician's note were granted on that basis. (Def. LR 56.1 Stmt. ¶ 27; Turner Dep. 20-21; Meriwether Dep. 19-21.)

If Adidas has any specific written policies relating to the FMLA, they do not appear in the record. In response to a question about Adidas's FMLA policy, Meriwether testified that "Employees need to request leave of absence," and, "If I learn if there is a specific instance, I attempt to contact the employee to file for leave of absence." (Meriwether Dep. 19.) Regarding continuing FMLA leave, Meriwether testified, "You [the employee] have to show proof that it's continued." (Id. 23.) If an employee fails to furnish proof from a doctor of his need for leave, according to Meriwether, "we go the extra step and contact the employee to give them the opportunity to provide it." (Id. 23.) Further, "[i]f an employee does not return to work, nor produces documentation, I instruct the managers to get in touch with them not once, not twice, but three times. And if they don't return on their scheduled return to work, they have voluntarily resigned." (Id. 23-24.) Meriwether stated that she instructed Sullivan to contact Turner "two, three, four" times regarding the extension of his FMLA leave (id. 24); precisely when she issued these instructions is not clear from the record.

On June 7, 2006, Adidas received a final note from Dr. Dennis Groothuis, Turner's treating neurologist, requesting an extension of Turner's leave of absence through June 14, 2006. (Def. LR 56.1 Stmt. ¶ 15; Turner Dep. 22; Turner Dep. Ex. 2; Sullivan Dep. 73-74.) Neither Plaintiff nor his doctors provided further medical support for continued leave. (Def. LR 56.1 Stmt. ¶ 17, citing Sullivan Dep. 65, 68-69; Meriwether Dep. 35.) Plaintiff denies this, but the material he cites--his own affidavit--states only that he notified Sullivan in a telephone conversation in "early June 2006" that his "medical leave was being extended on a week to week basis." (Turner Aff. ¶ 7.)

Sullivan testified that on June 15, 2006 she contacted Turner to inform him that without a further physician's note, he would be added to the schedule for the upcoming week. (Def. LR 56.1 Stmt. ¶ 16; Turner Dep. 24-25, 37, 132-33.) Sullivan noted in a "Separation Checklist" dated June 22, 2006 that Plaintiff advised her during this conversation that "his release was going to be extended." (Def. LR 56.1 Stmt. ¶ 16; Sullivan Dep. 75-77; Sullivan Dep. Ex. H.) Turner himself did not recall this conversation in his deposition, but admitted that it could have occurred. (Pl. LR 56.1 Resp. ¶ 16a; Turner Dep. 24-25, 131-33; Turner Ex. A; Sullivan Dep. 79-81.) In fact, however, Turner did not provide a subsequent physician's note, did not contact Adidas after the expiration of the June 7, 2006, and did not appear or call in for his scheduled shift on June 21, 2006. (Def. LR 56.1 Stmt. ¶ 17; Turner Dep. 37, 132-33; Turner Dep. Ex. 18; Sullivan Dep. 65.)

Beginning on May 17, 2006, Meriwether documented Turner's absences as a performance issue. (Pl. 56.1 Stmt. of Additional Facts ¶ 32; Ex. K, 0140.) Later, on May 22, 2006, Meriwether recommended that Plaintiff be "written up" for missing work because, she asserted, "he does have the work release." (Pl. 56.1 Stmt. of Additional Facts ¶ 29; May 22, 2006 e-mail, Ex. F, to Pl. LR 56.1 Stmt. of Additional Facts.) On May 24, 2006, Sullivan asked Meriwether if Plaintiff could be terminated for his absences. (Pl. 56.1 Stmt. of Additional Facts ¶ 31; May 24, 2006 e-mail, Ex. J to Pl. LR 56.1 Stmt. of Additional Facts.) On June 12, 2006 and June 13, 2006, Meriwether described Turner as "non-compliant" for his failure to schedule a CAT scan that had apparently been requested, and in one text conversation, referenced his injury as a "non-injury." (Pl. LR 56.1 Stmt. of Additional Facts ¶ 12, 13; e-mail and text messages, Ex. G and Ex. H to Pl. LR 56.1 Stmt. of Additional Facts.)

Prior to discharging Turner, Meriwether contacted Elizabeth Rende ("Rende"), a workers' compensation adjuster at Adidas, to ask whether any additional physician's notes had been received to excuse Plaintiff from work. (Def. LR 56.1 Stmt. ¶ 21; Meriwether Dep. 27.) Rende reported that she had called Dr. Groothuis' office and his nurse indicated that the doctor had not issued any additional physician's notes after June 7, 2006. (Def. LR 56.1 Stmt. ¶ 21; Meriwether Dep. 31-35, 44-46; Meriwether Decl. ¶¶ 9, 10.) ...

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