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Kinsella v. American Airlines

February 9, 2010

DAWN KINSELLA, PLAINTIFF,
v.
AMERICAN AIRLINES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Dawn Kinsella ("Kinsella") sued her former employer, Defendant American Airlines, Inc. ("American"), alleging that American discharged her in retaliation for exercising her rights under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), and interfered with her substantive exercise of rights under the FMLA. American moves for summary judgment on both claims. American also moves for sanctions and dismissal on the ground that Kinsella committed perjury in her deposition. For the reasons stated below, the Court grants American's Motion for Summary Judgment and denies American's Motions for Sanctions and Dismissal on the Grounds of Perjury .

STATEMENT OF UNDISPUTED FACTS

American operates a facility at O'Hare International Airport in Chicago, Illinois, where Kinsella worked as a Ticket Lift Agent starting on March 6, 1989. (Pl. 56.1 Resp. ¶¶ 2, 4.)*fn1

American transferred Kinsella to a position as a Ticket Counter Agent sometime after 1992, where she served until her discharge in May 2006. (Pl. 56.1 Resp. ¶ 5.) During her tenure as a Ticket Counter Agent, Lynn Mazzucchelli-Sumiec ("Mazzucchelli") supervised Kinsella. (Pl. 56.1 Resp. ¶ 6.) Michael Kinsella, Dawn Kinsella's husband, began working at American in 1984. (Pl. 56.1 Resp. ¶ 7.) At the time of Dawn Kinsella's discharge in May 2006, Michael Kinsella worked as a unionized Crew Chief over Fleet Service Clerks. (Pl. 56.1 Resp. ¶ 7.)

American has a set of guidelines and principles entitled "Rules of Conduct" with which all Ticket Agents are required to comply. (Pl. 56.1 Resp. ¶ 8.) Rule 16 of the Rules of Conduct provides that "[m]isrepresentation of facts or falsification of records is prohibited." (Pl. 56.1 Resp. ¶ 9.) Rule 34 further states that "[d]ishonesty of any kind in relations with the company, such as . . . misrepresentations in obtaining employee benefits or privileges, will be grounds for dismissal and, where the facts warrant, prosecution to the fullest extent of the law." (Pl. 56.1 Resp. ¶ 10.) Kinsella signed American's "Company Policy Regarding Dishonesty" on March 7, 1989. (Pl. 56.1 Resp. ¶ 11.) That policy reminds employees that "[n]o exception can be made under Rule # 34. Discharge and prosecution, when applicable, are mandatory." (Pl. 56.1 Resp. ¶ 11.) Any violation of American's Rules of Conduct by an employee can be grounds for immediate discharge depending upon the severity of the incident and the employee's record. (Pl. 56.1 Resp. ¶ 12.)

American also has an Attendance Management Policy that applied to Kinsella in May 2006. (Def. 56.1 Resp. ¶ 19.) That Policy has a progressive or step discipline plan, but also states that "[f]raudulent use of the sick leave benefit is considered to be dishonest and will result in termination of employment." (Def. 56.1 Resp. ¶ 19; Def. 56.1 Exh. D.) As of May 2006, Kinsella was a self-managed employee under the American Airlines Attendance Policy. (Def. 56.1 Resp. ¶ 10.)

American has a separate Sick Leave Benefit Policy stating that American "provides a Sick Leave Benefit for your use when you are unable to work due to illness or injury . . . . Use of this benefit for any other reason is not allowed . . . . Fraudulent use of the sick leave benefit is considered to be dishonest and will result in termination of employment." (Pl. 56.1 Resp. ¶ 13.) Misusing sick time is a violation of Company policy. (Pl. 56.1 Resp. ¶ 14.) Kinsella knew, as of May 4, 2006, that under American's policies she could not take sick time if she, herself, was not ill. (Pl. 56.1 Resp. ¶ 15.) Moreover, as of May 2006, Ticket Counter Agents who were too sick to work were responsible for calling American's zone support sick line to inform American of their absence before the beginning of their shifts, while a Crew Chief over Fleet Service Clerks had to call a different sick line number. (Pl. 56.1 Resp. ¶ 16.) An employee of American taking approved family medical leave ("FML") for her own illness or that of an eligible family member in May 2006 had to report her use of such leave by calling American's FML telephone line at 773-686-2517 in addition to the sick line number. (Pl. 56.1 Resp. ¶ 17.) An employee had 48 hours after returning to work to call the FML line. (Def. 56.1 Resp. ¶ 21.) A Family Leave Coordinator at O'Hare would then ensure that the FML was properly coded in the system. (Pl. 56.1 Resp. ¶ 18.)

American granted Kinsella intermittent FML in 1997, 1999, 2000, 2001, 2004, 2005, and 2006 to care for her son, Zachary Kinsella, who has juvenile diabetes. (Pl. 56.1 Resp. ¶ 20; Def. 56.1 Resp. ¶ 3.) Kinsella did not suffer adverse action as a result of applying for or taking FML during those years. (Pl. 56.1 Resp. ¶ 21.) Michael Kinsella also took FML leave to care for his son periodically during his employment with American. (Pl. 56.1 Resp. ¶ 22.) As of May 2006, American did not have a policy prohibiting a husband and wife from taking vacation leave together or missing work on the same day, prohibiting one spouse from taking one type of leave and the other spouse from taking another type of leave on the same day, or prohibiting a husband and wife from calling in sick on the same day. (Def. 56.1 Resp. ¶¶ 6-9.)

Deborah Havens ("Havens"), who worked in a position responsible for Ticket Agent management between 2000 and 2005, received complaints from several of Kinsella's co-workers alleging that Dawn and Michael Kinsella took time off work simultaneously and perhaps were abusing the system. (Pl. 56.1 Resp. ¶ 25.) In 2005, American promoted Havens to the position of Manager of Airport Services, where she became responsible for reviewing the list of employees who took time off of work for any reason. (Pl. 56.1 Resp. ¶ 26.) Certain behavioral patterns, including a pattern of lost time together by husband and wife, trigger a suspicion that an employee could be abusing a Company leave benefit. (Pl. 56.1 Resp. ¶ 27.)

On Thursday, May 4, 2006, at 3:25 a.m., Kinsella called American's sick line and informed the operator that she would not be reporting to work that day because she was sick. (Pl. 56.1 Resp. ¶ 28.) At 3:48 a.m. on the same day, her husband Michael Kinsella called the sick line for Fleet Service Clerks. (Pl. 56.1 Resp. ¶ 28.) Later that day, Havens looked at the list of employees who called off sick that day and noticed that both Dawn and Michael Kinsella had made these calls. (Pl. 56.1 Resp. ¶ 29.) Havens subsequently reviewed Dawn and Michael Kinsella's time and attendance records and noted a pattern of simultaneous absences that did not include simultaneous vacation days or days off scheduled in advance. (Pl. 56.1 Resp. ¶ 30.) These instances included: (1) September 25, 2001, when Dawn Kinsella arranged a change of shift with a co-worker and Michael Kinsella called in FML; (2) December 27, 2001, when Dawn Kinsella took a flex vacation day and Michael Kinsella called in sick; (3) June 20, 2002, when Dawn Kinsella took FML and Michael Kinsella called in sick; (4) August 8, 2002, when Dawn Kinsella took FML and Michael Kinsella took time off due to an injury; (5) November 27, 2002, when Dawn Kinsella took a vacation day and Michael Kinsella called in sick; (6) December 17 and 19, 2002, when both Kinsellas called in sick; (7) December 16, 2003, when both Kinsellas called in sick; (8) May 9, 2005, when Dawn Kinsella arranged a change of shift and Michael Kinsella called in sick; (9) August 1 through 4, 2005, when Dawn Kinsella had unpaid absences and Michael Kinsella took vacation days; (10) November 7, 2005, when Dawn Kinsella took FML and Michael Kinsella took a vacation day; (11) December 22, 2005, when Dawn Kinsella took FML and Michael Kinsella took a vacation day; and (12) December 30, 2005, when Dawn Kinsella took FML and Michael Kinsella arranged a change of shift. (Pl. 56.1 Resp. ¶ 31.)

Havens noticed in the course of her review that on several occasions one of the Kinsellas would use FML and the other would take time off for some other reason. (Pl. 56.1 Resp. ¶ 32.) Havens grew suspicious that perhaps the Kinsellas were misusing their sick leave, and assumed (mistakenly) that because both had called in sick on May 4, 2006, one or both of them might call in FML. (Def. 56.1 Exh. G p. 179-80; Exh. H ¶ 9.) As a result of her concerns, Havens asked Acumen Probe, a third-party, to conduct a surveillance of the Kinsellas' activities on May 4, 2006. (Pl. 56.1 Resp. ¶ 34; Def. 56.1 Resp. ¶¶ 1-2.)

At 10:17 pm on May 4, 2006, Kinsella called in sick for May 5, 2006, and then did not work on May 6 or 7, 2006 because they were her scheduled days off. (Pl. 56.1 Resp. ¶¶ 35-36.) Kinsella also did not report to work on May 8, 2006, after arranging a change of shift on April 23, 2006 because of her daughter's Confirmation, and did not report to work on May 9, 2006 because she called in sick at 2:50 a.m. that day. (Pl. 56.1 Resp. ¶ 37.)

Acumen Probe provided Havens with a video and written report documenting the results of its surveillance sometime after May 4, 2006. (Pl. 56.1 Resp. ¶ 39.) The report spans the hours of 2:15 PM to 8:05 PM on March 4, 2006, and describes an individual believed to be Michael Kinsella cutting the grass of his property and then riding a motorcycle, and an individual believed to be Dawn Kinsella driving a vehicle to and from the house and then sweeping the garage. (Pl. 56.1 Resp. ¶ 39; Def. 56.1 Exh. 7 of Exh. G.)*fn2 Havens has no medical training to determine if an employee is sick. (Def. 56.1 Resp. ¶ 12.) However, after examining the video and report, Havens believed that further action was required. (Pl. 56.1 Resp. ¶ 40.) Upon review of American's time and attendance reports, Havens noted that Dawn Kinsella called in sick on May 5, 2006 and Michael Kinsella called in sick on May 7, 2006. (Pl. 56.1 Resp. ¶ 41.) Havens no longer suspected that the Kinsellas were misusing FML after noting that the their time off was coded "SK," or personal sick time, and that none was coded FML (unpaid time) or VCF (family leave paid through vacation time). (Pl. 56.1 Resp. ¶ 42.) She was still, however, concerned that they were potentially abusing their sick leave. (Pl. 56.1 Resp. ¶¶ 42-43.) Mazzucchelli, Dawn Kinsella's manager, read the surveillance report on May 11, 2006. (Def. 56.1 Resp. ¶ 14.)

On May 10, 2006, Mazzucchelli, Mary Ouimet (a peer witness), and a scribe met with Kinsella to discuss possible abuse. (Pl. 56.1 Resp. ¶¶ 44-45.) Kinsella stated that she had been sick with the same illness "off and on" between May 4 and May 9, 2006, but never saw a doctor, and could not recall if she left the house on May 4 or 5, 2006, or if she was sick at home and in bed. (Pl. 56.1 Resp. ¶¶ 46, 49.) She later described certain of her activities between May 4 and May 9, including picking up her children, hosting ten people at her home for her daughter's Confirmation, going to the store, dropping of her son, and taking her friend to the airport. (Pl. 56.1 Resp. ¶ 50.) Kinsella refused to answer questions about her husband, but informed Mazzucchelli that her children had similar symptoms and missed school on Monday, May 8, 2009. (Pl. 56.1 Resp. ¶¶ 47-48.) She later stated that she scheduled the CSO for Monday, May 8, 2009 and arranged for her children to be out of school because of pre-arranged plans. (Pl. 56.1 Resp. ¶ 51.) Mazzucchelli confirmed with Kinsella that she was expected to tell the truth and her failure to do so could result in corrective action, including discharge, and asked her if she had anything to add to the investigation, to which Kinsella responded "no." (Pl. ...


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