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Shinn v. Afton Chemical Corp.

September 28, 2009

BONNIE SHINN, PLAINTIFF,
v.
AFTON CHEMICAL CORP., DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

A. Introduction and Procedural Background

Afton Chemical Corporation owns and operates a chemical plant in Sauget, Illinois, within this Judicial District. Bonnie Shinn worked at the plant -- first as a chemical operator and later as a production supervisor -- from September 6, 1994 to September 8, 2006. On September 9, 2008, Shinn filed suit in this Court, alleging that Afton's termination of her employment violated the Family Medical Leave Act, 29 U.S.C. 2601, et seq., and constituted intentional infliction of emotional distress.

The case is set for final pretrial conference October 23, 2009 and bench trial November 9, 2009 (see Docs. 6 and 19). A settlement conference has not been held; it was waived by the parties (see Doc. 17). The case comes now before the undersigned District Judge on the parties' fully-briefed cross-motions for summary judgment. Analysis begins with the standard governing such motions.

B. Applicable Legal Standards

Summary judgment is appropriate where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Durable Mfg. Co. v. U.S. Department of Labor, -- F.3d --, 2009 WL 2501770 (7th Cir. Aug. 18, 2009), citing FED.R.CIV.P.56(c). Accord Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In ruling on a summary judgment motion, this Court must view in the light most favorable to the non-movant the evidence plus all inferences reasonably drawn from the evidence. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).

When cross-motions for summary judgment are filed, "we look to the burden of proof that each party would bear on an issue of trial; we then require that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact." Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 643 (7th Cir. 2007), quoting Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).

As the United States Court of Appeals for the Seventh Circuit stated six weeks ago, on cross-motions for summary judgment, the Court must construe "the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Durable, 2009 WL 2501770 at *2, citing Rickher v. Home Depot., Inc., 535 F.3d 661, 664 (7th Cir. 2008). Accord Jefferson v. United States, 546 F.3d 477, 480 (7th Cir. 2008); Samuelson v. LaPorte Community School Corp., 526 F.3d 1046, 1051 (7th Cir. 2008); Aux-Sable Liquid Products v. Murphy, 526 F.3d 1028, 1032 (7th Cir. 2008).

The non-movant cannot defeat the opponent's summary judgment motion by resting on the pleadings. Rather, the non-movant (i.e., the party opposing the adverse litigant's motion) must provide evidence on which the jury or court could find in her favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

C. Analysis

Count I alleges that Afton violated the FMLA by terminating Shinn's employment in retaliation for her exercise of FMLA rights, i.e., taking leave to care for her husband, Kenneth, who was suffering from Hodgkin's lymphoma and required stem cell transplant operations.*fn1

Count II alleges that Afton interfered with Shinn's substantive FMLA rights, burdening her exercise of statutory rights "by holding [her] accountable and ascribing discipline to her for work not completed while on FMLA leave" (Doc. 2, p. 6). Count III alleges intentional infliction of emotional distress under Illinois law.

### OVERVIEW OF FMLA

The FMLA was enacted to protect the stability and economic security of families and to promote the national interest in preserving family integrity, while accommodating the legitimate interests of employers.

29 U.S.C. 2601(b). The Act entitles an eligible employee to 12 weeks of unpaid leave per year for certain life events, such as the birth or adoption of a child, a "serious health condition" that renders the employee unable to perform her job, or the care of a spouse or parent with a serious health condition. 29 U.S.C. 2601(b)(2); Ryl-Kuchar v. Care Centers, Inc., 565 F.3d 1027, 1030 (7th Cir. 2009); Pirant v. U.S. Postal Service, 542 F.3d 202, 206 (7th Cir. 2008).

The Act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." Kaufmann v. Federal Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005), quoting 29 U.S.C. 2615(a)(1). These rights include an employee's right to reinstatement upon return from leave (i.e., the right to return to the same position and benefits the employee held before taking leave). Kaufmann, 426 F.3d at 884; Simpson v. Office of Chief Judge of Circuit Court of Will County, 559 F.3d 706, 712 (7th Cir. 2009), citing 29 U.S.C. 2615(a)(1).

"Employers must not interfere with an employee's attempt to exercise any of her FMLA rights," and firing an employee "to prevent her from exercising her right to return to her prior position" can constitute interference with the employee's FMLA rights. Simpson, 559 F.3d at 712.*fn2

In addition to these substantive provisions, the FMLA declares it unlawful for an employer to discharge or discriminate against an individual for opposing practices "made unlawful by this subchapter," 29 U.S.C. 2615(a)(2), or to discharge or discriminate against an employee for taking part in proceedings or inquiries under the FMLA, 29 U.S.C. 2615(b). The Seventh Circuit has construed these provisions as creating a cause of action for retaliation. Kaufmann, 426 F.3d at 884, citing Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004), and King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999).

Cases distinguish these two categories of FMLA claims -- those based on "interference" with substantive FMLA rights v. those alleging retaliation based on the exercise of FMLA rights. A wrongful termination lawsuit could be based on either a retaliation theory or on an interference theory. The difference is "the first type of claim requires proof of discriminatory or retaliatory intent while the latter requires only proof that the employer denied the employee ... entitlements under the Act." Kaufmann, 426 F.3d at 884.

Shinn casts her complaint as containing two FMLA claims -- a retaliation claim (Count I) and an interference claim (Count II).*fn3 Both parties maintain that no genuine issues of material fact exist as to either of these claims. Each party maintains that it/she is entitled to judgment as a matter of law on these claims. We examine the FMLA retaliation claim first, starting with Defendant Afton's motion for summary judgment.

### FMLA RETALIATION CLAIM

As in actions under other employment discrimination statutes, an FMLA plaintiff may proceed via the direct or indirect method of proof. Daugherty, 2009 WL 2477640, *3. Accord Smith v. Hope School, 560 F.3d 694, 702 (7th Cir. 2009).

Under the direct method of proving FMLA retaliation, the employee must present evidence of statutorily protected activity, a materially adverse action taken by the employer, and a causal link between the two. Id.An employee prevails under the direct method by showing an admission of discrimination or by constructing "a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker." Id., quoting Ridings v. ...


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