The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Renota Foster ("Foster") has sued her former employer, Northwestern Medical Faculty Foundation ("Northwestern"), asserting charges of discrimination and retaliation in violation of the American with Disabilities Act of 1990 ("ADA," 42 U.S.C. §§12101 to 12117) and interference and retaliation in violation of the Family and Medical Leave Act ("FMLA," 29 U.S.C. §§2601 to 2654). Northwestern has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated here, its Rule 56 motion is granted in part and denied in part.
Summary Judgment Standard
Every Rule 56 movant bears the burden of establishing*fn1
the absence of any genuine issue of material fact (Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor (Lesch v.
Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But a
non-movant must produce more than "a mere scintilla of evidence" to
support the position that a genuine issue of material fact exists
(Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come
forward with specific facts demonstrating that there is a genuine
issue for trial" (id.).
Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the relevant facts,*fn2 viewed of course in the light most favorable to non-movant Foster. In light of that requirement, some of the matters sought to be emphasized by Northwestern's counsel that are at odds with Foster's view have been omitted.
Northwestern is a large not-for-profit multi-specialty medical practice (N. St. ¶¶3-4). Northwestern's practice includes a Hematology/Oncology division within its Department of Medicine (id. ¶5). Basilia Walton ("Walton") has been the billing supervisor in the Hematology/Oncology division since 2003 (id.). Foster, after working for Northwestern in a different, temporary capacity for a short time, was transferred in January 2004 to a temporary position as a billing coordinator in the Hematology/Oncology division--a position that ultimately became permanent (id. ¶¶12-13).
Foster began suffering from panic attacks in 2005 (N. St. ¶14). Since that time she has suffered from a large number of such attacks, including multiple attacks in a single day (F. Resp. ¶15). When the attacks occurred at work, Foster would sit at her desk until they passed (N. St. ¶16). In addition to the panic attacks, Foster suffered from agoraphobia from mid-May 2007 to July 2007 (id. ¶14).
As for Foster's FMLA claim, Northwestern maintains a policy governing leave under that statute (N. St. ¶7). Manager of Employee Engagement Denise DeHesus ("DeHesus") administers that policy (id. ¶9).
In January 2006 Foster first used her FMLA leave when she took three weeks' leave to care for her mother (N. St. ¶18). In August 2006 Walton gave Foster her annual evaluation, which noted that Foster had received an oral warning about her attendance, drug processing and other issues (F. St. ¶85). But that same evaluation by Walton characterized Foster's overall job performance as "excellent" (id. ¶86).
During November 2006 Foster came to believe that Walton was being "tough" on her (N. St. ¶28). On November 13 Walton asked Foster what was wrong with her and what medication she was taking (F. St. ¶108). After Foster refused to answer Walton's questions, Walton said she would find out what Foster refused to disclose (id.). About a week later Walton told Foster that she knew about Foster's anxiety issues and relevant medication (id.). Thereafter Walton told many of Foster's co-workers about Foster's condition and talked about firing her (id. ¶108).
On November 27 Northwestern approved Foster's application for a week of FMLA leave to address her own medical issues (N. St. ¶19). Walton sent DeHesus an email the next day, charging that Foster was sleeping at her desk and that such activity was a possible predicate for terminating Foster (F. St. ¶90). Walton then sent DeHesus a draft Corrective Action Report referring to Foster's FMLA leave (id.), but DeHesus instructed Walton to remove that reference to FMLA leave from the report (id.).
On December 5, 2006 Northwestern approved Foster's application for intermittent FMLA leave to be taken between November 13, 2006 and November 13, 2007 (N. St. ¶20). Foster implemented that approval by using FMLA leave from November 13, 2006 until mid-May 2007 (id. ¶21).
Meanwhile, on December 15, 2006 Walton criticized Foster for making personal phone calls at work, and Foster in turn emailed DeHesus asking to speak with her about the issue (N. St. ¶¶29-30). When Foster met with DeHesus later in December, Foster complained about the way Walton had been treating her (F. Mem. Ex. 1 156:10-159:7).*fn3 DeHesus responded by encouraging Foster to work with Walton to resolve the issues (N. St. ¶34). DeHesus then spoke to Walton about Foster, counseling Walton on improving her performance (id. ¶35).
In January 2007*fn4 Walton placed Foster on a Performance Improvement Plan for issues that included making too many personal phone calls, failing to answer emails in a timely fashion and improperly pricing drugs (N. St. ¶¶23; 25). Also in January, Walton began keeping a journal of Foster's work behavior, something she did not remember doing as to any other employee (F. Mem. Ex. 4 113:22-114:9; Ex. 7). In March Walton sent another email to DeHesus listing some of Foster's asserted recent infractions and asking whether she could terminate Foster (F. St. ¶90).
Foster spoke with DeHesus again in March or April to discuss her issues with Walton and to ask for a change in Walton's behavior or a transfer (N. St. ¶¶37-38). At that meeting Foster described her medical issues to DeHesus and said she believed she was getting sicker as a result of Walton's treatment of her (F. Resp. ¶40).
In April, at Northwestern's request, Foster was evaluated by Dr. Aaron Reichlin ("Dr. Reichlin") to determine her ability to return to work after she returned from FMLA leave (F. Mem. Ex. 3 43:1-46:20). Dr. Reichlin's report stated that he believed Foster would be able to return to work shortly and that the viability of an interdepartmental transfer should be considered (id.). DeHesus did not consider such a transfer ...