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Brunson v. Forest Preserve District of Cook County

March 3, 2010


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


Plaintiff Audrey Brunson was hired as an officer by the Police Department of Defendant Forest Preserve District of Cook County (the "District") in January 2005. After she began outdoor patrol, Plaintiff's asthma attacks became severe, causing her to miss work. In January 2006, Plaintiff filed a request for intermittent leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant Sergeant Cynthia Spina-Fox assured Plaintiff that Defendant Chief Richard Waszak had received the request, but Plaintiff never got a response and was terminated in April 2006 for excessive absenteeism. In this action against the District, Waszak, and Spina-Fox, Plaintiff alleges both interference with the exercise of her FMLA rights and retaliation for the attempt to exercise those rights. All parties have moved for summary judgment. For the reasons that follow, the court concludes that Plaintiff is entitled to judgment in her favor on her interference claim as against Defendants Waszak and the District. Her retaliation claim and all claims against Defendant Spina-Fox are dismissed.


Before summarizing the facts, the court addresses Defendants' motion to strike portions of Plaintiff's Response to Defendants' Rule 56.1(a)(3) Statement of Undisputed Facts. Such motions are disfavored unless they serve to expedite the work of the court. RLJCS Enterprises, Inc. v. Professional Benefit Trust, Inc., 438 F. Supp. 2d 903, 906-07 (N.D. Ill. 2006). Defendants' motion does not meet that test. First, the majority of responses that Defendants attack for lacking citations are the type of responses-denying a legal conclusion, denying a subjective characterization, or denying a statement as unsupported by the record-that require no citation. Defendants also attack a set of responses for being argumentative and containing legal arguments. The court agrees that some of the legal arguments Plaintiff included were unnecessary: for example, when admitting that the stated reason for Plaintiff's termination was her excessive absenteeism, there was no need for Plaintiff to remind the court of her argument that the termination was, in truth, retaliatory. (Pl's 56.1(b)(3) Response to Defs' 56.1(a)(3) Statement, Dkt. 43, ¶ 61.) Nevertheless, these and other infractions are minor and isolated; striking the responses that Defendants complain of would serve no purpose. See Holzer v. Prudential Equity Group LLC, 520 F. Supp. 2d 922, 928 (N.D. Ill. 2007) (considering a motion to strike an answer to a complaint). Accordingly, the motion to strike is denied.

Plaintiff was hired by the District as a probationary employee on January 10, 2005, and entered the police academy. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶¶ 8-9.) The probationary period lasts one year from the time a new officer completes training but will not exceed eighteen months from the officer's hiring date. (Defs' 56.1(a)(3), Dkt. 39, ¶ 7.) Plaintiff completed her training in April 2005 and was assigned to patrol duty. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶ 10; Defs' 56.1(a)(3), Dkt. 39, ¶ 8). Plaintiff had been diagnosed with asthma in 2002, and in July 2005, her symptoms worsened, requiring at least one hospital visit as well as the use of some sick days. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶¶ 6, 12-16; Defs' 56.1(a)(3), Dkt. 39, ¶¶ 9-11, 21.) The District's records show that Plaintiff used 12 sick days between July and December of 2005. (Defs' Ex. 15.) In her 56.1(a)(3) statement, Plaintiff states that during that period, she missed work "occasionally because of her asthma," but she does not cite evidence to quantify how many of those sick days were attributable to her asthma and how many to other factors. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶ 16, A-4, A-40, A-81-A-82.) Plaintiff believed that her asthma attacks worsened as a result of the fact that her work as a Forest Preserve Patrol Officer required her to be outdoors. (Defs' 56.1(a)(3), Dkt. 39, ¶¶ 18-19.) After another hospital visit in January 2006, Cathy Willis, an employee in the District's Employee Assistance Program, advised Plaintiff to file a request for FMLA leave, which Plaintiff did. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶¶ 18-19.)

Plaintiff submitted her request for intermittent FMLA leave to Defendant Waszak on or about January 19, 2006. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶ 19; Defs' Ex. 5.) The request included a certification by Plaintiff's doctor, which appears to be on a form created by the District. (Defs' Ex. 5.) The certification, a copy of which is in the record, states that Plaintiff suffers from asthma, will probably continue to suffer from it for her entire lifetime, and because of the asthma will need treatment for 1 to 3 days every 3 to 6 months. (Id.) To the question, "Is impatient [sic] hospitalization of the employee required?" Plaintiff's doctor checked "Yes." To the questions, "Is employee able to perform work of any kind?" and "Is employee able to perform the functions of employee' [sic] position?" the doctor checked "No." (Id.)

Plaintiff never received a response to her FMLA request and, in a letter dated April 18, 2006-one year after Plaintiff completed her training-the District informed Plaintiff that it was "exercising its option to terminate" her during the probationary period. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶¶ 31, 35, at A-95.) The letter was signed by Defendant Waszak, who makes written recommendations on termination decisions, and by Superintendent Steven Bylina, who makes the ultimate decision. (Defs' 56.1(a)(3), Dkt. 39, ¶¶ 59-60.) Waszak testified and the District stated in an answer to an interrogatory that the reason for Plaintiff's termination was excessive absenteeism. (Id. ¶ 61, Ex. 16, Waszak's Dep., at 49; Pl's 56.1(a)(3), Dkt. 36, Ex. 1, at A-16.) Plaintiff does not dispute that she was often absent-the District's records show that she missed 36.5 days of work in the fifteen months she was employed by the District. (Id. ¶ 61, Exs. 11, 15.) Again, Plaintiff offers no evidence on how many of those absences were attributable to her asthma.

It is undisputed that during the three-month period between Plaintiff's submission of her FMLA request and her termination, Waszak forwarded the request to three different lawyers for the District: to Robert Kinchen in January, to Lauren Gore in February, and to Susan Salita in April. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶¶ 20, 24, 29, A-17.) Twelve days before Plaintiff's termination, Salita provided Chief Waszak with a written legal opinion about Plaintiff. (Id. ¶ 30; Defs' 56.1(b)(3)(C) Statement of Additional Facts, Dkt. 46, ¶ 3.) A copy of that opinion is not in the record; according to Plaintiff, the opinion was withheld by Defendants on the grounds of attorney-client privilege. (Pl's Memo in Opposition, Dkt. 42, at 4 n.2.)

An undated document produced by the District states that the proper procedure when a department head receives an FMLA request is for the department head to forward the request to the Chief of Human Resources. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, at A-78.) At his deposition in April 2009, Chief Waszak testified that he was currently following that procedure, but that the procedure in January 2006 had been to submit FMLA requests to the legal department. (Waszak's Dep., Defs' Ex. 16, at 18-20.) Waszak could not recall when the policy was changed. (Id.)

Eight days after she submitted her FMLA request, Plaintiff followed up by calling Waszak's office. (Pl's 56.1(a)(3), Dkt. 36, Ex. 1, ¶ 21.) Spina-Fox told her that the request had been received. (Id.) In an affidavit, Plaintiff stated that she asked Spina-Fox how long the approval process would take, and Spina-Fox said she did not know. (Id., at A-96-A-97.) In March 2006, Plaintiff contacted Luis Martinez in Cook County's human resources department.*fn1 (Defs' 56.1(a)(3), Dkt. 39, ¶ 42.) Plaintiff testified that Martinez told her he had no record of her form being submitted to the human resources department and that she should call Waszak or Superintendent Bylina to find out what had happened to it. (Brunson's Dep., Defs' Ex. 18, at 62-63.)

Plaintiff testified that she did attempt to contact Waszak, but spoke to Spina-Fox instead. (Brunson's Dep., Defs' Ex. 18, at 62-63.) Spina-Fox does not recall speaking to Plaintiff in late March but said such a conversation was possible. (Spina-Fox's Dep., Defs' Ex. 17, at 37.) According to Plaintiff, Spina-Fox told her that the form had not been sent to human resources and that "it was in legal and that it was still stuck there." (Brunson's Dep., Defs' Ex. 18, at 63-64.) Spina-Fox testified that she never knew the status of Plaintiff's request so would not have said that it was stuck in legal. (Spina-Fox's Dep., Defs' Ex. 17, at 37-38.) Plaintiff testified that when she asked for the contact information of the person who had her form, Spina-Fox said she did not have that information and reminded Plaintiff that her request to work a second job had been denied because Plaintiff wanted to work more than 20 hours per week at the second job. (Brunson's Dep., Defs' Ex. 18, at 64.) According to Plaintiff, Spina-Fox also reminded her about the probationary nature of her employment and warned that she could be terminated at any time. (Id.) Spina-Fox testified that she would not have made such a statement because she would not have known about Plaintiff's probationary status. (Spina-Fox's Dep., Defs' Ex. 17, at 43.) Plaintiff testified that SpinaFox ultimately said she would provide the contact information for the person who had the form, but never did provide that information. (Id. at 65.)

After her termination, Plaintiff sued the District, Waszak, and Spina-Fox, claiming that they had interfered with her exercise of her FMLA rights and had terminated her in retaliation for exercising those rights. Plaintiff has moved for summary judgment on the interference claim and Defendants have moved for summary judgment on the retaliation claim.


The court will grant summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Because the court is considering cross-motions for summary judgment, it construes "facts and inferences therefrom in favor of the party against whom the motion under consideration was made." Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1124 (7th Cir. 2008).

A. Plaintiff's Motion for Summary Judgment-Interference Claim

To succeed on her interference claim under 29 U.S.C. § 2615(a), Plaintiff must show that "(1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her benefits to which she was entitled." Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). Plaintiff argues that undisputed evidence establishes each element. Defendants dispute only the third and fifth elements, arguing that Plaintiff was not entitled to FMLA leave because she did not have a ...

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