The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Sylvia Salas alleges that defendants 3M Company and Sedgwick Claims Management Services violated her rights under the Family Medical Leave Act, 29 U.S.C. § 2601, and are liable under the common law doctrine of promissory estoppel.*fn1 For the reasons stated below, the defendants' motion for summary judgment [68-1] is denied.
Salas is a single mother of three children and has a ninth-grade education. 3M is a diversified technology company, which operates a distribution facility in Aurora, Illinois (referred to herein as "3M or 3M Aurora"). Sedgwick is the third-party disability benefits administrator that administers all 3M employee short-term and long-term disability claims, workers' compensation claims, and FMLA claims.
3M employed Salas from approximately October 1997 until on or about April 12, 2007. During the time period at issue in this lawsuit, Salas worked as a Warehouse Operator in 3M's Aurora, Illinois distribution center. During all relevant times, Salas' manager was Olga Barajas. As described more fully below, Sedgwick contacted Barajas regarding Salas' FMLA-leave requests at issue.
During her time at 3M and as discussed in more detail below, Salas has received warnings related to her absences. According to Salas, these absences were due to her own illness or the illness of one of her children. Jason Becher, Warehouse Operations Manager at 3M, acknowledged that Salas was a satisfactory employee.
Unrelated to this case, in or around 2002, Salas filed a complaint with the Department of Labor alleging that Barajas incorrectly assessed her points for what should have been FMLA-protected absences. The Department of Labor investigated, found a violation and corrected the situation.
Salas alleges that the defendants violated the FMLA by interfering with her FMLA leave. Second, Salas alleges that 3M retaliated against her for exercising her rights under the FMLA by terminating her employment on or about April 12, 2007. Salas' sole claim against Sedgwick is that it wrongly denied her November 2006 and March 2007 requests for FMLA leave.
3M'S Attendance Control Program
At all times relevant to this lawsuit, 3M utilized a written attendance policy, titled the Attendance Control Program, which Salas knew of and understood. Salas received training regarding updates to 3M's Attendance Control Program, which were implemented in or around October 2004. The Attendance Control Program states in relevant part: "Using a twelve-month rolling time period, employees will be subject to progressive discipline according to the number of points that are accumulated during that period. The Attendance Control Program consists of four (4) corrective action steps and, if the poor attendance is not corrected, employees will progress through the steps, up to and including termination."
The Attendance Control Program stipulates, and Salas was at all times aware of, the following: (1) An employee who is absent one full-day receives 1.0 occurrence point; (2) an additional 0.5 point is assessed for an absence of one or more additional consecutive days; (3) an employee who is absent a partial day, for an absence of four hours or less, receives a 0.5 point; (4) an employee who is late arriving at the workstation receives a 0.5 point; (5) an employee who overuses their vacation time receives 0.5 a point for partial day over-use and 1.0 point for a full day over-use; (6) an employee who receives a total of 3.0 occurrence points in a rolling 12-month period will be assessed a verbal warning; (7) an employee who receives a total of 4.0 occurrence points in a rolling 12-month period will be assessed a written warning; (8) an employee who receives a total of 5.0 occurrence points in a rolling 12-month period be assessed a final warning and one day suspension; (9) and an employee who receives a total of 6.0 occurrence points in a rolling l2-month period is subject to disciplinary action up to and including termination. Any assessed points fall off the employee's record after 12 months from the date of the absence.
Pursuant to the Attendance Control Program, "[i]f any Control Program step has been reached or passed a 2nd time, within the past twelve months, the consequences for that absence and any subsequent absence" will be advanced an extra step. For example, an employee who accumulates a total of 3.0 points twice in a rolling 12-month period will receive a written warning rather than a verbal warning. The progressive discipline steps are set forth in a four column table at the end of the Program document that is available to all employees. Column A describes the typical four-step progressive discipline approach, while Columns B-D describe the accelerated approach for situations in which an individual repeats steps in a rolling 12-month period. Every 3M Aurora employee starts out in Column A of the Corrective Action Table within the Attendance Control Program. If an employee reaches or passes a specific step for the second time within a rolling twelve months, they will then be placed in Column B (and so on) and subject to the corresponding corrective action until sufficient points fall off the employee's record due to the passage of time.
Certain absences, such as absences which qualify under the FMLA, do not count toward an employee's point total under the Program. While Sedgwick reviews a FMLA leave application, or an appeal from a FMLA leave denial, 3M Aurora does not assess points for the absence for which FMLA leave is sought. Only if and when Sedgwick conclusively denies FMLA leave in relation to a specific absence does 3M apply points under the Attendance Control Program as necessary.
3M & Sedgwick's Administration of FMLA Leave
3M has retained Sedgwick to administer all 3M employee FMLA claims in accordance with state and federal law and all applicable 3M processes and policies. As the administrator of 3M's FMLA claims, Sedgwick is responsible for the intake and analysis of all claims information and documentation. The defendants also assert that Sedgwick is responsible for the communication of all claims information and documentation, but Salas disputes this and notes that on at least one occasion, Sedgwick emailed her manager asking for the manager to communicate information to Salas. Most importantly, Sedgwick is responsible for making the ultimate decision as to whether an FMLA claim should be granted or denied. 3M does not participate in the final decision to approve or deny.
After a 3M employee submits an FMLA leave request to Sedgwick, the assigned Sedgwick Case Manager sends the employee a Notice of Conditional Approval, which is a temporary approval pending final review of the claims. The purpose of the Notice of Conditional Approval is twofold: (1) it conforms to the employer's regulatory requirement to provide notice within, two days of receiving a claim; and (2) it informs the employee that the claim has been received but will require additional information in order to fully analyze the request. 3M asserts that the Notice of Conditional Approval clearly informs the employee that it is not a final determination of the claim, and that he or she must submit certain additional information in order to receive final approval; however, Salas disputes that. The notice directs the employee to submit, within 15 days, all requested and required information substantiating the need for FMLA leave, including, but not necessarily limited to, a Medical Certification for Family Medical Leave form certified by the employee's health care provider.
Throughout this time, the Sedgwick Case Manager is available to the employee to provide guidance, seek clarification, and answer any questions that may come up as the claim is processed. If an employee provides the necessary information in a timely manner, Sedgwick analyzes the leave under federal and state law and 3M policy, and issues either a final approval or final denial letter based on the information provided. If the employee provides incomplete or otherwise unsatisfactory information, Sedgwick will request additional information. If it is not provided within the required time parameters, conditional approval will be revoked and the claim will be denied.
Defendants have used the conditional approval process consistently since Sedgwick became 3M's third-party disability benefits administrator in 2004. Sedgwick also utilizes an electronic data system called TAMS to log calls and activity related to FMLA claims. TAMS stands for Total Absence Management System. TAMS is also internally referred to as JURIS.
Between 1999 and 2005, Salas was approved for FMLA leave on numerous occasions to care for her children. For example, Salas applied and was approved for FMLA leave for the time periods of March 5, 2004 to April 5, 2004 (3M 000127), April 20, 2005 to April 25, 2005 (3M 000126), and August 30, 2006 to September 5, 2006 (3M 000555). 3M did not attempt to interfere with these multiple leaves or seek to terminate Salas for taking FMLA leave on these occasions. Moreover, while 3M asserts that throughout this period, Salas was never disciplined outside the requirements of the Attendance Control Program, Salas states that she and others who took FMLA leave were placed, upon their return, in more strenuous and less desirable positions.
Salas' Daughter, Vanessa Robles
Salas has an adult daughter, Vanessa Robles, currently age 23. Salas testified at her deposition that she had no documentation from a medical provider or anyone else that her daughter was disabled. While Salas attaches to her response to the motion for summary judgment various medical records for her daughter, she does not point to any specific document that indicates that her daughter was disabled or incapable of performing any activities of daily living.
The parties dispute Robles' capabilities. The defendants assert that Robles adequately cares for all of her grooming and self-help needs and that she is capable of utilizing public transportation alone. The defendants further highlight the following facts. In approximately 2004, Robles graduated from high school, earning a high school diploma, after four years. Following her high school graduation, she worked at Jewel Food Stores as a bagger. Following her emp1oyment with Jewel Food Stores, Robles attended Joliet Junior College for approximately one year and a half. Throughout all her semesters at Joliet Junior College, she received credit for all of her classes except one. Robles currently attends Lincoln College in Lincoln, Illinois where she is enrolled in Lincoln's freshman and sophomore general liberal arts and sciences curriculum. During her time as a student at Lincoln College, Robles has received a B grade average and made the Dean's list. At the time of Salas' August 19, 2008, deposition, Robles was employed by Burger King, working thirty to forty hours a week operating Burger King's drive-through window. Since Robles graduated high school, she has not been treated or examined for mental or cognitive issues by a physician or any other specialist.
Salas, on the other hand, contends that Robles cannot cook for herself and cannot follow basic cooking instructions, is incapable of managing her own transportation, becomes confused and lost when attempting to take public transportation, cannot drive, is incapable of dressing herself appropriately, has difficulty putting on her shoes correctly, becomes confused in communication and has difficulty explaining things or understanding context and suffers from severe and uncontrollable shaking which has been diagnosed as "ataxia-like symptoms." She testified to the following at her deposition:
C that Robles was born premature and suffers from serious cognitive disabilities, which were diagnosed before she started kindergarten.
C Salas tried to place Robles in "mainstream" kindergarten but Robles failed to keep up and Robles was subsequently placed in learning disabled classes and was never integrated into the general student population except for gym class
C Robles underwent neurological testing around the time that she was eight years old
C Salas testified that a doctor who examined Robles' records stated that her limitations were likely caused by a lack of oxygen during birth and that if he had to "name" it, he would state that Robles' condition was cerebral palsy. As discussed below, this statement is hearsay and cannot be considered by the court on a motion for summary judgment.
Fragile X Syndrome, but no official diagnosis was made. Again, this assertion is inadmissible hearsay as discussed more fully below. C Salas applied for social security benefits on Vanessa's behalf and one of the physician who examined Robles concluded that Robles was disabled and awarded her benefits. This statement also constitutes inadmissible hearsay. The benefits ceased when Salas began making too much money to continue qualifying for them.*fn2
C According to Salas, another doctor believed that Robles might suffer from
C Since high school Robles has received assistance from a vocational rehabilitation specialist from the Illinois Department of Health and Human Services.
C Robles now attends Lincoln College and Salas has had to pay "extra tuition" for tutors for Robles in every class
C Prior to attending Lincoln College, Robles attended Joliet Junior College but she could not "keep up" with the curriculum.
Auntie Ann's pretzel shop because she was not able to "keep up with the
C Robles has struggled to hold even remedial jobs. She was fired from customers." Robles also tried to work at the Salvation Army but even with the assistance of a job coach, she was unable to "keep up with the productivity requirements"
C 3M allowed Robles to remain on Salas' health insurance past the age of 18 because, according to Salas, of Robles' disability.
Robles' capabilities are discussed in more detail in the Analysis section below.
Salas' November 2006 and March 2007 FMLA Claims
In November 2006, Robles was diagnosed with pancreatitis and was hospitalized for approximately 6 days. That same month, Salas made a claim seeking FMLA leave to care for Robles. Salas states that this was the first time that she had requested FMLA leave to care for Robles. Salas states that she told Amanda Sirian, an FMLA specialist at Sedgwick, that Robles had pancreatitis and that she needed intermittent leave to take her to and from doctor's appointments because Robles was "mentally slow" and unable to drive.
During this initial conversation, Salas contends that Sirian told her that she most likely would not be approved for FMLA leave because Robles was over 18 years of age, and recommended that Salas speak with her manager about using vacation or personal time. However, these statements cannot be considered by the court as they are inadmissible hearsay. Salas states further that she did as Sirian suggested and Becher allowed her to take one day of emergency vacation to care for Robles.
In association with Salas' FMLA request, the defendants sent Salas a November 29, 2006, Notice of Conditional Approval, which required her to submit a fully completed Medical Certification form by December 13, 2006. While 3M contends that during a December 4, 2006 phone call, the FMLA Specialist instructed Salas to submit documentation from a health care provider to demonstrate that Robles needed assistance with three or more activities of daily living, Salas asserts that she was never told by anyone verbally or in writing that she needed to provide proof of limitations in activities of daily living. Sedwick's TAMS system contain an entry on that date stating that "EE understood and said that she would speak with professional assistance to see what cares are being provided and also speak with MD to have medical completed. EE understood [activities of daily living]." Despite the Sedgwick Case Manager's request, Salas did not submit any information detailing Robles' limitations. As a result, Sedgwick sent Salas a December 21, 2006, Notice of Denial of Intermittent FMLA Claim. At this time, 3M offered employees a process to appeal, challenge and possibly reverse a denied FMLA claim within 14 days. Salas did not appeal the December 21, 2006, denial of her claim.
At the end of February 2007, Robles' pancreatitis flared again and this time she was hospitalized for 7 days and had surgery on March 2, 2007. Salas states that Robles was given Vicodin and morphine, that she was hallucinating, and that the hospitalization limited Robles' ability to function. Salas asserts that because Robles needed transportation home upon her release from the hospital on March 2, 2007, Salas missed 1.1 hours of work and was assessed one attendance point due to her absence from work.
On approximately March 5, 2007, Salas states that she took Robles to the emergency room due to pain. Salas contacted Sedgwick and requested FMLA leave.*fn3 Defendants once again sent Salas a March 7, 2007, Notice of Conditional Approval, which required Salas to submit the necessary ...