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Bussey v. Board of Trustees of Community College District No. 508

August 3, 2010


The opinion of the court was delivered by: David H. Coar United States District Judge



Plaintiff Julie Bussey ("Plaintiff" or "Bussey") brings this action against the Board of Trustees of Community College District No. 508, d/b/a City Colleges of Chicago and Richard J. Daley College ("Defendant" or "City Colleges"), alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. (Count I) and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1132 et seq. (Count II). Defendant moves for summary judgment on both claims. For the reasons stated below, Defendant's motion for summary judgment is DENIED with respect to Count I and GRANTED with respect to Count II.

In conjunction with Defendant's motion for summary judgment, the Court also considers Plaintiff's motion to strike portions of Defendant's reply to Plaintiff's response to its statement of facts and deem admitted portions of Plaintiff's Rule 56.1 statement of facts. For the reasons stated below, Plaintiff's motion is DENIED in part and GRANTED in part.


Plaintiff Julie Bussey was employed by the City Colleges of Chicago at Richard J. Daley College from 2001 until her termination in June 2007. (Defendant's Rule 56.1 Statement of Material Facts ("DSOF") ¶ 3; Plaintiff's Rule 56.1 Statement of Material Facts ("PSOF") ¶ 1.) While employed by City Colleges, Bussey worked as a part-time testing specialist in the Testing Center, which administers placement tests for incoming students. (DSOF ¶¶ 3, 10-11.) She was supervised directly by Alan Badowski ("Badowski"), the director of testing. (DSOF- Ex. 1, Julie Bussey Dep. 14:3, 15:10-12, Mar. 3, 2010.) Badowski is supervised by Dean Gayle Ward ("Ward"), the Dean of Student Services at Richard J. Daley College. (PSOF- Ex. K, Gayle Ward Dep. 25:11-22, Mar. 24, 2010; PSOF- Ex. L, Alan Badowski Dep. 36:9-24, Apr. 23, 2010.) During the course of her employment at City Colleges, Bussey performed well; she never received criticism about either her performance or her attendance. (PSOF ¶¶ 1-2.)

Plaintiff's Injury and Absence from Work

On April 28, 2007, Bussey suffered a severe sprain to her left ankle. (DSOF ¶ 16.) Bussey's injury ultimately left her unable to work for six weeks under her doctor's orders. (PSOF ¶ 7.) In accordance with City Colleges policy, which requires employees who will be absent to notify their immediate supervisors within half-an-hour of their normally scheduled start times, Bussey called her immediate supervisor, Badowski, on April 29, 2007. (PSOF ¶ 3; DSOF ¶ 16.) She informed him of her injury and told him that she was going to see a physician the next day. (DSOF ¶ 16.) When Bussey visited her doctor on April 30, 2007, he instructed her not return to work for 14 days. (PSOF ¶ 7.) That same day, Bussey called Badowski to relay her doctor's orders. (Id. ¶ 8.) During her conversation with Badowski, Bussey told Badowski that, even though her doctor instructed her not to work for 14 days, she might be able to return to work in one week. (Bussey Dep. 77:3-15.) She said this because she knew Badowski would struggle without her, and she hoped she would be able to return to work earlier than her doctor had predicted. (Id.) Despite Bussey's hope for a quick recovery, she was unable to return to work the following week. She called Badowski on May 4 and May 6, 2007 to update him on her condition and let him know that she was not yet able to return to work. (PSOF ¶ 8.) Bussey's injury persisted, and on May 13, 2007, just before she was due to return to work, Bussey called Badowski again and told him that she remained injured and unable to work. (Id.)

Bussey returned to her doctor on May 15, 2007. (PSOF ¶ 7.) This time, Bussey's doctor ordered her not to stand or walk for 14 days and barred her from working for another 14-day period. (Id.) After her doctor's appointment on May 15, 2007, Bussey updated Badowski on her condition and told him that she was prohibited from working for another two weeks. (Id. ¶ 8.) Whenever Bussey called Badowski, Badowski assured her that he would inform Dean Gayle Ward, or Ward's secretary Veronica Roberts ("Roberts"), of Bussey's absence. (Bussey Dep. 35:6-13.) On May 16, 2007, Ward e-mailed Human Resources Administrator Elinore Moore ("Moore") that Bussey "injured her ankle" and "would be out for another two weeks." (DSOF ¶ 18; Ex. 5(a).) In his e-mail, Ward also stated that he was "[n]ot sure if any contact has been made with the Human Resources Office or if any documentation will be needed for [Bussey's] return." (Id.) On May 16, 2007, Moore attempted to call Bussey using the phone number in the City Colleges database, but Moore did not reach Bussey because the number listed in the database was wrong. (DSOF ¶ 18.) Moore did not inform anyone that she was unable to contact Bussey and made no further attempt to reach her. (DSOF- Ex. M, Elinore Moore Dep. 48:19-21; 52:7-12, Mar. 31, 2010.)

On May 18, 2007, Badowski cautioned Bussey that she might be fired if she did not show up for work on May 22, 2007. (Bussey Dep. 100:23-102:11; Badowski Dep. 64:10-24.) Fearful of losing her job, Bussey went into work on May 22, 2007. (PSOF ¶ 9; PSOF- Ex. F at 40.) While she was at work, Bussey gave Badowski copies of two doctor's notes-one dated April 30, 2007 and one dated May 15, 2007. (PSOF ¶ 10; PSOF- Ex. A.) Both notes diagnose Bussey with an ankle sprain and state that she may not return to work for 14 days. (PSOF- Ex. A.) Badowski testified that, as far as he can remember, he gave Bussey's notes to two other City Colleges employees: (1) either Ward or administrator Nelson Borges, and (2) either Moore or her assistant in Human Resources. (Badowski Dep. 36:15-18; 47:17-48:7.) Bussey worked again on May 29, 2007. (PSOF ¶ 11.) She was never paid for the time that she worked on either May 22, 2007 or May 29, 2007. (Id. ¶ 12.)

Bussey returned to the doctor on May 30, 2007 and received a note stating that she could not resume working until June 14, 2007. (PSOF- Ex. A at 179; Ex. F at 41.) Although Bussey never gave that note to anyone at City Colleges, she informed City Colleges that she received a doctor's note restricting her from working for another two weeks. (DSOF ¶ 23; PSOF ¶ 13.) On both May 30 and May 31, 2007, Bussey called Ward and left messages with his secretary, Roberts, stating that she reinjured her ankle and was instructed by her doctor not to work for another two weeks. (PSOF ¶ 13.)

At the direction of Daley College President Sylvia Ramos and Dean Ward, Moore prepared a letter terminating Bussey on June 4, 2007. (DSOF ¶ 24.) The letter stated: "Because you have been absent from your position since Tuesday, May 29, 2007 and have made to attempt to contact you supervisor, Dean Gayle Ward, J.D., . . . you have abandoned your employment." (PSOF- Ex. D.) Under City Colleges rules, "an employee will be considered to have abandoned his/her employment and shall be subject to termination of his/her employment if . . . [t]he employee is absent for three (3) consecutive work days without prior written approval and without speaking directly with his/her supervisor." (DSOF- Ex. 2, Board Rules for Management & Government § 3.22.) Ward, who is also an attorney, was aware of his duty to inform employees of their FMLA rights when they have conditions that might trigger such rights. (PSOF ¶ 17.) However, when he recommended Bussey's termination, Ward's main concern was staffing the testing department and ensuring that it ran smoothly. (Id.)

On June 14, 2007, Bussey contacted her local union representative, Alan Booker ("Booker") to enlist his help in getting her job back. (PSOF ¶ 18; DSOF ¶ 25.) Booker advised Bussey to go to Daley College with all of her medical notes and to "fill out paperwork." (Id.) Bussey did not go to Daley College as Booker suggested; instead, she spoke with Moore on the phone the next day, June 15, 2007. (PSOF ¶ 19.) Offering a vague account of this conversation, Bussey testified that Moore spoke with her about filling out forms to help get her job back. (Id.) Moore did not explain that the forms she mentioned related to Bussey's FMLA rights. (Id. ¶ 20.) During this conversation, Bussey explained that her printer was broken and asked Moore to send her the forms by mail in addition to e-mail. (Id.) Following their phone call on June 15, 2007, Moore e-mailed the forms to Bussey but never complied with Bussey's request to mail the forms as well. (Id. ¶ 21; DSOF ¶ 27.) Bussey never printed or completed the FMLA forms attached to Moore's e-mail. (Id.) Instead, she opted to obtain legal counsel. (Id.)

Throughout the six weeks she was absent from work due to her injury, Bussey neither formally requested FMLA leave nor filled out any related paperwork. (DSOF ΒΆ 28.) No one at City Colleges ever told Bussey what the FMLA was, informed her of her rights under the FMLA, or explained that she had to fill out paperwork to take FMLA leave. (Bussey Dep. 180:7-17.) Additionally, City Colleges never ...

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