The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Plaintiff Cathi Turner has problems with her back caused by a 1996 automobile accident. Turner's employment at defendant Health Care Service Corporation ("HCSC") d/b/a Blue Cross Blue Shield of Illinois was terminated after she attempted to take time off after her back problem flared up. HCSC contends that Turner failed to provide appropriate notice for her absence, while Turner asserts that: (1) HCSC terminated her because of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a); (2) HCSC violated the ADA by failing to accommodate her disability, id. § 12112(b)(5); (3) HCSC retaliated against her after she exercised her rights under the ADA, id. §12203; (4) her termination violated the FMLA, 29 U.S.C. § 2612(a)(1); (5) HCSC retaliated against her for exercising her rights under the FMLA, id. § 2615(a)(1); and (6) HCSC terminated her to deprive her of long-term disability benefits in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140.*fn1
Turner seeks to strike certain materials submitted by HCSC in support of its motion for summary judgment and HSCS seeks summary judgment as to all of Turner's claims. For the following reasons, Turner's motion to strike her supervisor's statement that she and other employees took FMLA leave and were not fired is granted and the remainder of Turner's motion to strike is denied. In addition, HCSC's motion for summary judgment is denied as to Turner's FMLA claims and granted as to her ADA and ERISA claims. Finally, Turner's Illinois Personnel Record Review Act claim is dismissed for failure to exhaust.
I. Turner's Motion to Strike
At the time of her termination, Turner was a customer service representative at HCSC and Jamie Brickweg was Turner's supervisor and was inquiry supervisor of HSCS's call center. As discussed below, the date and time of certain calls placed by Turner to Brickweg is relevant for purposes of HCSC's motion for summary judgment.
HSCS submitted a declaration from Brickweg wherein Brickweg states, among other things, that she took notes when she received voicemail messages from Turner, and that her notes included the date and time of the call, which were included in the voicemail header, and the subject of the call. In addition, because of the nature of HCSC's work, Brickweg was able to pull a log of all incoming calls to her direct telephone line at HCSC from December 8 through December 14, 2004. The log reflected certain calls from the land line telephone at Turner's apartment, but did not show any calls from Turner's home number prior to 9:30 a.m. on December 8, 9, 10, 13, or 14, 2004, (i.e., within one hour after Turner's 8:30 a.m. shift start time).
Turner seeks to strike Brickweg's declaration, contending that: (1) it improperly contradicts Brickweg's earlier sworn deposition testimony; and (2) several of the statements lack foundation and violate the best evidence rule. Turner also seeks to strike the telephone call log attached to Brickweg's declaration, asserting that it lacks foundation. In response, HCSC contends that the declaration and supporting materials are proper but submitted a supplemental declaration from Brickweg in an effort to directly address these alleged deficiencies.
A Do the Declarations Improperly Contradict Deposition Testimony?
A deponent may not use an affidavit to change her prior deposition testimony. Miller v. A.H. Robins Co., 766 F.2d 1102, 1104-05 (7th Cir. 1985). However, a deponent may submit an affidavit if it explains her prior deposition testimony or addresses newly discovered evidence. Id. at 1104.
Turner first contends that Brickweg's statements about the dates and times of voicemail messages left by Turner contradict her deposition testimony. The court disagrees: these details are not in the portions of Brickweg's deposition cited by Turner in her motion to strike, but Brickweg provided this information later in her deposition. See Brickweg Dep. 101: 21-22, 102: 1-22, 106: 5-9, 107:18-20, 108: 3-6, 7-8. In addition, HCSC previously disclosed the dates and times of the messages in discovery, so Turner cannot be prejudiced by repetition of information already known to her.
Second, Turner asserts that Brickweg's declaration leaves out key testimony in order to "change or conform the testimony to better suit the Defendant's arguments." Motion to Strike at 4-5. According to Turner, Brickweg's declaration is misleading because it does not note that Turner referred to the FMLA when she called in to report an absence. This argument is immaterial as Brickweg's declaration is not the sole evidence before the court. Moreover, HCSC explicitly stated in its Local Rule 56.1 (a) statement of material facts that Turner mentioned the FMLA when she called Brickweg. See HCSC's Rule 56.1 Statement at ¶ 51.
Finally, Turner focuses on a hypothetical that arose during Brickweg's deposition. Brickweg was asked how she would handle an employee who needed a period of time off instead of a single day. Brickweg Dep. at 40:2-22. Brickweg testified that if the employee called in and gave them the necessary information, he or she would be excused for the duration of the time period that they needed off without having to call in each day. Id. In her declaration, Brickweg addresses Turner's failure to call on a daily basis. This evidence does not contradict Brickweg's deposition testimony because Brickweg's position is that Turner did not request permission to take five consecutive days off. Thus, the motion to strike based on alleged inconsistencies is denied.
As noted above, Brickweg kept notes reflecting the information in the headers for voicemails left by Turner and pulled a log of all incoming calls to her direct telephone line at HCSC from December 8 through December 14, 2004. Turner contends that Brickweg is not qualified to testify about the voicemail headers or the phone logs and that the phone logs are not admissible. The court disagrees.
Under Federal Rule of Civil Procedure Rule 56(e), "a supporting or opposing affidavit must be made with personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Turner asserts that statements in Brickweg's declaration lack foundation and are improper legal conclusions.
Specifically, Turner takes issue with Brickweg's competency to testify that in 2004, the voicemail system automatically recorded the dates and times of each voicemail message. A witness need not be a telecommunications expert to testify regarding this kind of basic detail, which is easily grasped by anyone who has ever retrieved a voicemail message from a system that includes a header. Brickweg's position as supervisor and her extensive use of the voicemail system make her competent to testify about that system.
For the same reason, the court rejects Turner's argument that Brickweg cannot testify regarding the voicemail headers because she was disclosed as a fact witness. HCSC identified Brickweg as having "knowledge concerning [her] communications and discussions with Turner and [her] evaluations of [Turner's] performance and attendance . . . [Brickweg] may also have knowledge . . . concerning HCSC's business, employees, and personnel policies and procedures." HCSC's Rule 26(a) Disclosures, § A2. The call log fits easily within these parameters. In addition, it is undisputed that HCSC produced the call log in discovery. The court, therefore, declines to strike the call log.
Turner seeks to strike records of calls logged by HSCS. A proper foundation for business records is established if the records: (1) were kept in the course of regularly conducted business activity; and (2) it was the regular practice of that business to make such records. United States v. Given, 164 F.3d. 389, 394 (7th Cir. 1999). A custodian or other qualified person must authenticate the records and lay the required foundation. Fed. R. Evid. 803(6). If these requirements are met, the records will be admissible "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Id.
Turner contends that the logs lack foundation because Brickweg is not a "qualified witness" and there is no evidence of where the records were produced. A "qualified person" is a person who has knowledge of the procedures used to create and maintain the records. Collins v. Kibort, 143 F.3d 331, 338 (7th Cir. 1998).
Here, Brickweg's position as inquiry supervisor of the call center required her to oversee customer service representatives such as Turner. Brickweg was aware that HCSC's telephone and computer system automatically generated call logs. The data included calls to and from office telephone numbers, including the date, time, duration, and telephone number of each incoming and outgoing call, whether the phone at issue was a land line or a mobile device, and the cost of each outgoing call. HCSC used the telephone data for various purposes, including evaluating CSRs, dealing with customer complaints, and budgeting. Brickweg, as well as other inquiry supervisors, were able to monitor CSR calls in real time from their computers.
Although Brickweg may not be able to explain how the system generates data, she is familiar with HCSC's record keeping practices and thus is a qualified witness. See United States v. LeShore, 543 F.3d 935, 942 (7th Cir. 2008). Moreover, the records were kept in the regular course of business. Turner's contention that HCSC could have created the records using a word processing system is speculative and does not justify excluding HCSC's business records. For all these reasons, Turner's motion to strike the call log is denied.
In her declaration, Brickweg notes that she and other unspecified employees took FMLA leave and were not terminated. Turner seeks to strike this statement, contending that Brickweg is not similarly situated to Turner and also failed to identify the other employees at issue. When determining whether another individual is comparable, the court considers, "whether the employee(s) (1) had the same job description, (2) were subject to the same standards, (3) were subject to the same supervisor, and (4) had comparable experience, education and other qualifications." Sales v. Wis. Dep't of Corrections, 493 F.3d 913, 923 (7th Cir. 2007).
Brickweg is not similarly situated to Turner because Brickweg was Turner's supervisor and they held two entirely different positions. With respect to the other employees, because they are not named, the court cannot ascertain whether they were similarly situated to Turner. Accordingly, Brickweg's statement that "HCSC employees, including herself, have taken FMLA [leave] and have not been terminated" is stricken. With these rulings in mind, the court turns to the parties' Local Rule 56.1 submissions.
The following facts are undisputed unless otherwise noted.
A. Turner's Employment at HCSC
Turner began working at HCSC as a customer service representative in February of 2002. With the exception of approximately one month in 2002 or 2003, Turner's shift start time was 8:30 a.m. Turner's job duties included receiving incoming phone calls, answering insureds' questions about their claims and policies, and preparing paperwork regarding those claims. During Turner's employment, HCSC's customer service department was very busy and phones constantly rang. Turner thus understood that it was important for her to be at her desk in order to be available to answer customer calls promptly and to do what was necessary to take care of HCSC's customers.
While employed at HCSC, Turner received a copy of HCSC's employee handbook. The handbook included the following call-in policy: "If you are unable to report to work or to report to work on time, you must personally telephone management or management's designee, unless you are hospitalized or management grants an exception." The policy specified that shift employees had to call within one hour after their shift was scheduled to begin. Turner understood that this was the normal rule during her employment, and that the policies were in place to ensure that the phones were adequately covered.
For FMLA leave, however, the policy provided that if an employee knew she was going to be absent for a specific number of days, she could provide advance notice regarding the number of days she would be out of the office. If she did so, she would then not have to call in on a daily basis to notify HCSC of her absence.
HCSC's FMLA policy requires employees to apply for leave 30 days in advance "or as soon as practical and possible, of the need for time off that might qualify for FMLA." FMLA Policy at 3. It further states that employees must provide notice: every time you have an intermittent FMLA-related absence, in advance of your absence or, in any case, not later than within 48 hours of your return to work.
You must also notify your management in advance (as soon as possible and practical) of your need for time off that might qualify for FMLA. You must notify management when you will be away from work and must follow all department and corporate absence notification procedures . . . . You can take your approved FMLA leave in the following ways: . . . . Intermittent time off, such as for doctor's appointments or time related to an illness resulting from a serious health condition.
C. Turner's Medical Condition
Turner testified that approximately ten years ago, she was involved in a car accident where she injured her back. Her physician, Dr. Mark J. Schneider, testified that Turner had degenerative back disease with chronic pain due to the car accident. Prior to Brickweg, Turner's previous supervisors, Jo Ellen Castro and Tish Serano, knew that Turner had a back condition. Brickweg was also aware that Turner had issues with her back, and explained that she realized Turner had a back problem shortly after she became Turner's supervisor in August of 2004, because Turner had a "pillow thing" in her chair at work and she mentioned something about her back problem.
Dr. Schneider testified that the limitations on the things Turner can do on a day to day basis are chronic (not permanent), and that her limitations have not changed significantly since he began treating her. He also testified that "activities of daily living, taking care of her child" were significantly affected by Turner's condition, but Turner could take care of herself, perform manual tasks, see, hear, speak, breathe, and reproduce. In addition, he opined that Turner could walk, but not for extended periods of time, and that Turner could sit down to perform various tasks if she occasionally took a break and got up to walk around.
He also stated that he "might have told [Turner]" that she "might end up that way [totally disabled]". Schneider Dep. at 40-41. However, he could not recall when this conversation might have taken place. According to Dr. Schneider, Turner would have been able to work in December of 2004 with accommodations, and having some time off of work because of her back condition flare ups would have been one of those accommodations.
Dr. Schneider never declared Turner disabled and unable to work, and opined that she was not totally and permanently unable to work. He also stated that he believed that the Social Security Administration was the entity that could make a formal determination when ...