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Murphy v. Brown

March 29, 2010


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


Plaintiff Barbara Murphy was terminated by her employer, the Clerk of the Circuit Court of Cook County, for excessive absences. Plaintiff had been granted intermittent leave under the Family and Medical Leave Act ("FMLA") shortly before she was terminated, and she believes that some of her absences should have been excused as covered by her leave status. In this lawsuit, Plaintiff alleges that Defendants Cook County and Dorothy Brown, Clerk of the Circuit Court of Cook County, violated her rights by denying an earlier FMLA application, by terminating her for absences that constituted FMLA leave, and by retaliating against her for requesting leave. Defendants move for summary judgment. For the reasons that follow, their motion is granted as to the denial of the earlier application and as to Plaintiff's retaliation claim. With respect to the claim that by terminating her, Defendants interfered with her right to take intermittent FMLA leave, summary judgment is denied.


Before summarizing the facts, the court notes that Defendants have objected to several of the paragraphs in Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Undisputed Facts and in Plaintiff's Response to Defendants' Local Rule 56.1(a)(3) Statement of Undisputed Facts. (Defs' Reply Br. at 1-3.) The paragraphs in Plaintiff's Response to which Defendants object fall into two categories: responses that admit the paragraph in question yet provide additional facts, and responses that deny the paragraph in question but provide a nonsupportive citation for the denial. Both sets of objections are sustained. See Malec v. Sanford, 191 F.R.D. 581, 583-84 (N.D. Ill. 2000). Defendants' objections to Plaintiff's own Statement of Undisputed Facts will be considered when relevant.

Plaintiff started working for the Clerk of the Circuit Court of Cook County in March of 1993 and became a court clerk in 2000. (Defs' 56.1(a)(3) ¶ 6.) Her most recent assignment was at the Rolling Meadows Courthouse handling a traffic ticket call. (Pl's 56.1(b)(3)(C) ¶ 10.) As a court clerk, Murphy generally performed clerical, recordkeeping, and administrative services for the court. (Defs' 56.1(a)(3) ¶ 7.) Under the Court Clerk's attendance policy, an employee accrues points for attendance violations as follows: 1 point for tardiness, 1 point for leaving early, 2 points for being absent without leave for a full day, 1 point for a half day, and 3 points for an absence where the employee fails to notify management within 2 hours of her scheduled start time. (Defs' Ex. 4.) To give notification of an absence or a tardy, an employee calls a specific number and reports to the Timekeeper. (Pl's 56.1(b)(3)(C) ¶¶ 19-20.) If the employee submits proper documentation, points are not incurred for an absence due to a bona fide emergency such as a car accident or a medical emergency. (Defs' Ex. 4.) Absences for non-emergency medical treatment-outpatient surgery, outpatient medical care at home, or an overnight hospital stay-are also excused if the employee submits proper documentation. (Id.) The level of discipline for absences and tardies corresponds to the number of points accumulated in the previous twelve months: for 6-9 points, the employee receives a verbal warning; for 10-12, a written warning; for 13-17, a 1-day suspension without pay; for 18-20, a 3-day suspension without pay; for 21-24, a 5-day suspension without pay; and for 25 or more points, termination. (Id.)

Plaintiff's relevant medical history begins in November 2003 when she underwent a hysterectomy and an excision of pelvic inflammatory tissue. (Pl's 56.1(b)(3)(C) ¶ 8.) The inflammation persisted, and Plaintiff underwent two more surgeries in March 2004. (Id.) In that same month, Plaintiff applied for and received intermittent FMLA leave, which ran from March 16 until June 1. (Id. ¶ 9, Pl's Ex. 8.) Plaintiff was not, however, able to return to work full time after her FMLA leave ended because in the first surgery she underwent in March, her left ureter*fn1 was mistakenly severed. (Pl's 56.1(b)(3)(C) ¶ 8.) Plaintiff underwent surgery again in June 2004 to repair her severed ureter, but the surgery failed to restore normal urinary function. (Id.) Plaintiff then went on disability leave and did not return to work until January 10, 2005. (Defs' 56.1(a)(3) ¶ 12.)

When she returned to work, Plaintiff provided her employer with documentation of her medical situation. (Defs' Ex. 6.) Plaintiff testified that Brett Liebsker, Chief Deputy Clerk for Labor Relations, told her that so long as she submitted documentation for any future absences or tardies, she would not receive points for them.*fn2 (Murphy Dep., Pl's Ex. 3, at 44-46.) Despite this assurance from Liebsker, however, Plaintiff's absences and tardies in 2005 were counted against her. (Defs' 56.1(a)(3) ¶ 13.) Plaintiff testified that during this period she submitted documentation explaining the medical need for some of those absences and tardies. (Pl's 56.1(b)(3)(C) ¶ 36.) In a grievance dated August 4, 2005, Plaintiff complained that the Court Clerk had been counting her absences and tardies against her, writing that "they have been harassing me about points when I have a medical condition." (Defs' Ex. 8.) Plaintiff explained in her grievance that she had been told that she would not accrue points if she submitted detailed doctors' notes explaining her absences and tardies; she did not say whether she had submitted notes corresponding to every absence and tardy. (Id.) She also wrote that she intended to file a new FMLA request even though she knew that she had not worked the 1,250 hours required to be eligible for FMLA leave. (Id.)

Plaintiff filed that second FMLA request in September 2005. As she had predicted, it was denied in December 2005 because Plaintiff had not worked a sufficient number of hours to be eligible for FMLA leave under 29 U.S.C. § 2611(2)(A)(ii). (Defs' Ex. 9.) By letter dated December 15, 2005, Ada Etolue, the Court Clerk's Benefits Coordinator and HR Legal Analyst, notified Plaintiff of the denial. (Id.) While the request was pending, Plaintiff missed more work and was issued a Personnel Action Report on October 4, 2005 listing the dates of 10 absences and 3 tardies incurred between June and September of 2005. (Defs' Ex. 7.) The Report notes that Plaintiff was to receive a one-day suspension, but Plaintiff asserts (without citation) that she was never actually disciplined. (Id.; Pl's Response to Defs' 56.1(a)(3) ¶ 16.) It is undisputed that Plaintiff continued to have attendance problems; between October 2005 and April 2006, she was absent 23 times and tardy 11 times, accruing 71 points, according to another Personnel Action Report issued on April 20, 2006. (Defs' 56.1(a)(3) ¶ 17; Pl's Response to Defs' 56.1(a)(3) ¶ 17; Defs' Ex. 10.) Following that Report, Plaintiff was required to meet with a Clerk's Office supervisor to discuss her violations of the attendance policy. (Defs' 56.1(a)(3) ¶ 18.)

Plaintiff met with Fred Moody, Associate Clerk of General Services, on May 4, 2006. (Defs' 56.1(a)(3) ¶ 19.) Moody told Plaintiff that her high number of absences and tardies could lead to termination. (Id.) Plaintiff testified that she was "shocked" to discover she had accumulated points for absences she believed were being excused for medical reasons.*fn3 (Pl's 56.1(b)(3)(C) ¶ 40.) At the meeting with Moody, Plaintiff provided medical documentation relating to 9 of her absences out of 44 past absences and tardies. (Defs' 56.1(a)(3) ¶ 20.) Moody did not have the authority on his own to adjust the point totals, so he submitted Plaintiff's documents to the Labor Relations Department. (Id. ¶¶ 20-21.) Because the record does not reflect what, if any, action the Labor Relations Department took next, the court assumes that points were in fact improperly assessed for 9 of Plaintiff's 44 absences and tardies prior to May 2006.

One month after Plaintiff's meeting with Moody, the Court Clerk adopted a new policy to combat absenteeism and tardiness: effective June 30, 2006, any employee with more than 80 accumulated points who could not provide documentation of a bona fide emergency would be disciplined immediately. (Defs' Ex. 14.) Additionally, employees with accumulated point totals ranging from 25 to 79 points would be placed on "proof status," meaning that any future absence or tardy would result in "immediate and severe discipline, up to and including termination." (Id.) Employees on "proof status" were to receive specific individual notices of their point totals and warnings of the potential disciplinary actions for any future incidents. (Id.) On July 13, 2006, Plaintiff was given such a notice. It stated that, based on her point total of 79, she was being placed on "proof status," and that any future absence or tardy without documentation of a bona fide emergency would result in immediate termination. (Defs' 56.1(a)(3) ¶¶ 26-27; Defs' Ex. 15.) A signature page in the record shows that Plaintiff received the notice. (Defs' Ex. 15.) It is unclear from the record whether Plaintiff challenged the point total asserted, but it appears that even if all of the 9 absences for which Plaintiff furnished documentation to Moody are removed from her record, her point total falls easily within the 25 to 79 point range for "proof status."

Plaintiff continued to seek FMLA leave, submitting requests for such leave in July, August, and September of 2006. ( Pl's 56.1(b)(3)(C) ¶¶ 44-45.) Each request was denied about one month after it was made for the same reason: Plaintiff had not accrued the required 1250 hours. (Id. ¶¶ 44-46; Defs' 56.1(a)(3) ¶ 28.) Plaintiff testified, though, that in July, Etolue, the Benefits Coordinator, had led her to believe that she had in fact accrued enough hours. (Murphy Dep., Pl's Ex. 3, at 29-31.) The October 2006 letter denying Plaintiff's last request stated that the denial was based on insufficient hours worked, but the copy of Plaintiff's application in the record contains the following handwritten notation by an unknown Court Clerk employee: "questionable HCP (employee forged doct cert.) Send denial letter." (Pl's 56.1(b)(3)(C) ¶ 47; Defs' Ex. 17, at 7.) The court assumes that HCP stands for health-care provider and that the notation shows a belief on the part of the person who wrote the note that Plaintiff forged her doctor's signature; nothing in the record clarifies the notation. Plaintiff applied for FMLA leave yet again on October 30, 2006, and on December 15, 2006, the Court Clerk finally granted her request. (Pl's 56.1(b)(3)(C) ¶ 48.) Plaintiff was granted intermittent FMLA leave with a retroactive start date of October 30, 2006 to run for one year. (Id.) The letter granting Plaintiff's leave request instructed her as follows:

Your FMLA request for your serious health condition has been approved. Your intermittent leave commenced October 30, 2006 and will end October 30, 2007 or earlier if the allowable total of 420 hours expires. You are required to call in to your department and advise of your intension [sic] to take your leave.

Please be advised that your Intermittent FMLA Leave is intended to be used ONLY in connection with the condition stated on your FMLA application. It is not available for personal time or a short-term illness, which is not a serious health condition as defined in the FMLA.

A schedule of your FMLA leave time is requested if you have pre-scheduled appointments. Your obligation under the FMLA is to try to schedule appointments so as to ...

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