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Harvey v. Waste Management of Illinois

April 29, 2010


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff filed a two-count complaint alleging that Defendant violated the Family Medical Leave Act ("FMLA") by terminating his employment, denying his request for medical leave, and retaliating and discriminating against him. The parties have filed cross-motions for summary judgment. For the following reasons, Plaintiff's motions for summary judgment are granted in part and denied in part. Defendant's motion for summary judgment is denied.


Plaintiff, Mitchell Harvey ("Harvey"), began working for Defendant, Waste Management of Illinois ("Waste Management"), as a residential driver on October 28, 1994. At the time of his termination, John Luby ("Luby") was Harvey's direct supervisor, Tom Sundstrom ("Sundstrom") was the District Operations Manager who disciplined employees as part of his job duties, and Rod Smith ("Smith") was Harvey's former route manager and supervisor.

Waste Management has a formal attendance policy ("Attendance Policy") which is based on a point system and covers a rolling nine-month period. In accordance with the Attendance Policy, employees were assessed points for unexcused work absences. Pursuant to the Attendance Policy, an employee should receive a written disciplinary notice at 6 points, a final written notice and one-day suspension from work without pay at 9 points, and would be discharged at 12 points. According to Waste Management's Time Off Planning Service ("TOPS") Program, an employee must contact TOPS to report that he will be absent from work for medical reasons. Once an employee contacted TOPS, that employee's supervisor would be informed of his or her FMLA leave.

Prior to Harvey's termination, on March 7, 2008, Luby and Sundstrom issued Harvey an "Employee Notice of Disciplinary Action" form. The notice stated that Harvey would not receive any further notices before being issued a termination letter. The notice also noted that Harvey had accumulated a total of 11 points. Plaintiff disputes Waste Management's point calculation. Harvey was on Federal Medical Leave Act ("FMLA") leave from February 12, 2008 to March 2, 2008. Plaintiff asserts that Defendant incorrectly included his February 13, 2008 excused absence in their calculation. On March 3, 2008 Harvey was released back to work.

Harvey's last day of employment was March 18, 2008. Harvey arrived to work at approximately 5:40 a.m. Plaintiff spoke to Smith and explained that he did not feel fit to work. Harvey then spoke directly to Sundstrom regarding his illness. Sundstrom testified that he "explained to him [Harvey] that I [Sundstrom] didn't feel that he appeared that he'd be able to do his job and requested that, you know, if- - if he needed to, he needed to leave."

Harvey left work and was admitted to the Northern Illinois Medical Center on March 18, 2008. Both Smith and Sundstrom learned that Plaintiff was hospitalized, however, neither can recall exactly when they learned that Harvey was hospitalized. Jerrie Hanus ("Hanus"), Plaintiff's girlfriend, called Harvey's supervisors on March 18, 2008 to inform them that he was hospitalized. Hanus testified that on March 18, 2008 both she and Plaintiff left messages for Luby regarding his hospitalization. Furthermore, Hanus testified that on March 19, 2008 she spoke directly to Smith on the telephone to discuss Plaintiff's condition. Smith testified that after learning of Harvey's hospitalization he contacted Sundstrom and informed him of Plaintiff's condition.

Harvey's employment was terminated because his March 18, 2008 absence was considered unexcused and resulted in this 12th and final point under the Attendance Policy. The decision to terminate Harvey was made by Sundstrom, Luby and the Human Resources Department. Sundstrom called Harvey on March 19, 2008 and informed him that his employment had been terminated because of his unexcused absence. Sundstrom admitted that he knew that Harvey was in the hospital when he called end Harvey's employment.

On March 20, 2008, Plaintiff filed a grievance with Waste Management contesting his termination. In his grievance, Plaintiff asserted that his March 18th absence should have been considered FMLA leave.

On April 9, 2008 Dr. Tomlin diagnosed Plaintiff with Adrenal Insufficiency or Addison's Disease, a condition which is managed with medication. Symptoms of Addison's Disease include fatigue, general weakness, low blood pressure with light-headedness, nausea and vomiting. Dr. Tomlin testified that the symptoms that Plaintiff exhibited in February 2008 were different than the symptoms he exhibited in April 2008. Dr. Tomlin testified that he did not believe that Plaintiff could work as of April 9, 2008. Dr. Tomlin had no knowledge regarding whether Plaintiff could have worked after April 30, 2008.

Plaintiff was subsequently referred to Dr. Grindstaff, a neurologist, for an unrelated back condition. In May 2008, Dr. Grinsdstaff diagnosed Plaintiff with lumbosacral radiculopathy (i.e., irritated nerve roots in the spine) and carpal tunnel syndrome in his wrists. Dr. Grindstaff further testified that as of May 15, 2008, Plaintiff could not or should not do any work with an extensive amount of heavy lifting, turning or bending. Dr. Grindstaff did not see Plaintiff between May 2008 and February 2009. On February 11, 2009, Dr. Grindstaff suspected that Plaintiff's spine disease had progressed and recommended that Plaintiff not perform jobs that required heavy lifting, turning or bending. Dr. Grindstaff testified that a degenerative back condition's symptoms can be alleviated, though not cured, through medication or physical therapy. Dr. Grindstaff also testified that a person with degenerative disc disease can exhibit no symptoms. Plaintiff has testified that he is fully released to work on a full-time basis.


Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The facts presented are to be construed in a light most favorable to the nonmoving party. Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and ...

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