The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:
E-FILED Thursday, 06 October, 2011 04:07:57 PM Clerk, U.S. District Court, ILCD
This matter comes before the Court on Defendant Monterey Mushrooms, Inc.'s (Monterey) Motion for Summary Judgment (d/e 23) (Motion). Plaintiff Elena Pantoja alleges that Monterey retaliated against her by firing her for requesting leave to care for her ill mother, in violation of the Family Medical Leave Act (FMLA) 29 U.S.C. § 2601 et seq. Monterey removed the case to this Court, and the parties consented, pursuant to 28 U.S.C. § 636(c), to have this matter proceed before this Court. Notice of Removal (d/e 1); Consent to Proceed Before a United States Magistrate Judge, and Order of Reference (d/e 11). The Motion has been fully briefed and is ready for determination. For the reasons set forth below, the Motion is ALLOWED.
Pantoja worked as a picker for Monterey.*fn1
She planned to spend her vacation in July 2009 visiting her
parents in Mexico. One month before she left to visit her parents,
Pantoja spoke to Monterey's Human Resources (HR) Manager Ernesto
Ybarra about taking leave to help her sick mother in Mexico. She
planned to take a one-month leave. Defendant's Memorandum of Law in
Support of Its Motion for Summary Judgment (d/e 24) (Monterey
Memorandum), Statement of Undisputed Fact (Monterey SUF)
¶¶5-6.*fn2 Pantoja was concerned about losing her job
if she took leave. Ybarra told her that she could not lose her job and
she had to take care of her mother. He told her that there were family
leave laws and not to worry. Ybarra Deposition, at 52-53. Ybarra
stated in his deposition that he recalled vaguely telling Pantoja that
all she needed was to provide some documentation that her mother was
ill. Id. at 57. Safety Coordinator Humberto Villegas was present
during the conversation. Villegas directed Pantoja to an HR Assistant
to obtain FMLA certification forms. Monterey SUF ¶ 6.
Monterey had a written FMLA policy. Under the policy, employees were required to submit requests for foreseeable FMLA leaves at least thirty days in advance, and as soon as possible for unforeseeable events. Employees were also required to provide a health care provider's statement supporting the FMLA leave request. Monterey SUF ¶ 1. Ybarra stated in his deposition that Monterey did not enforce the thirty day notice requirement, but Monterey preferred to have documentation beforehand. Monterey generally wanted documentation within a week of an emergency request, but did not have a specific turnaround time. Memorandum of Law (d/e 28) (Pantoja Memorandum), Exhibit B, Deposition of Ernesto Ybarra (Ybarra Deposition), at 22, 25. Monterey would allow the person to take fifteen days to get the emergency request filed. Id. at 38-39. Monterey's primary concern was to have a physician certify that the reason for the FMLA leave was bona fide and to determine the date of possible return to work. Id. at 39.
Pantoja states that HR Assistant Cheryl Godina told her that she needed to fill out some paperwork. Pantoja Deposition, at 34. According to Pantoja, HR Assistant Laura Barajas gave Pantoja the papers to fill out. Id. at 34. According to Pantoja, Barajas told her that these were all the papers she needed for the leave. Id. The paperwork was written in Spanish. Pantoja received a fifth grade education in Mexico. She read Spanish, but not English. Pantoja Deposition, at 18. Pantoja attempted to read the Spanish paperwork, but did not understand it. Id. at 75-76. She planned to take the papers to Mexico and have her mother's doctor fill them out. Id. at 34.
Pantoja had some familiarity with the FMLA policy. In December 2007, Pantoja requested FMLA leave. She submitted the required certification for that request. She took approved FMLA leave from December 19, 2007, to January 5, 2008. She returned to work without any problem. Monterey Memorandum, Exhibit 6, Deposition of Elena Pantoja (Pantoja Deposition), at 65-66; Exhibit 5, Monterey Leave of Absence Form and FMLA Certification Form.
Pantoja left on her vacation on July 6, 2009. Her vacation was scheduled to end on July 13, 2009. She said that Ybarra told her to use up her vacation first before she asked for FMLA leave. Pantoja Deposition, at 32. Pantoja took the FMLA certification papers to her mother's doctor in Mexico, "So when I went to see the doctor and I gave the doctor all of the documents, and I told her that I needed these documents filled out so I could prove I was here for that purpose." Id. at 35. Pantoja secured the doctor's certification and sent the completed FMLA paperwork to Monterey by fax from Mexico on July 13, 2009. Monterey, however, did not receive the fax. Monterey SUF ¶ 9.
Pantoja's vacation ended on July 13, 2009. When she did not show up at work, HR Assistant Lara Barajas checked in Pantoja's department to see if anyone knew where she was. Barajas called Pantoja's house but no one answered. Barajas left a message. Barajas also mailed a notice to Pantoja's house indicating that Monterey expected her to return to work on July 13th and that Monterey did not receive any paperwork supporting a FMLA request. The notice dated July 20, 2009, stated, in part, Our records reflect that you were to return to work on July 13, 2009 from vacation. It is our understanding that you wanted to exercise your right to FMLA, however, to this date you have failed to provide any documentation from a doctor supporting the reason(s) you require to use your FMLA option. You must provide all the necessary documents before your are able to return to work.
There was three attempts to call the number we have on file for you, messages were left on the machine that picked up.
It is imperative that you call me to work at your earliest convenience.
Monterey Memorandum, Exhibit 14, Letter from Laura Barajas to Elena Pantoja dated July 20, 2009. Monterey did not receive any response from the telephone calls or the letter.*fn3 Monterey SUF ¶ 17.
According to Pantoja, her brother called her while she was in Mexico and told her that she needed to call Monterey because she was in trouble at work. Pantoja Deposition, at 35. Pantoja called and spoke to Ybarra. Ybarra does not recall ever receiving a telephone call from Pantoja in July. See Ybarra Deposition, at 69-70. According to Pantoja, Ybarra told her that Monterey did not have the FMLA medical certification from her. Id. at 35, 48-49. Pantoja sent the fax a second time on July 27, 2009. She called several times that day to see if the fax was received. Pantoja's telephone records show a number of calls to Monterey on July 27, 2009. Pantoja Memorandum, Exhibit J Pantoja Cellular Telephone Records for July and August 2009; Pantoja Deposition, at 46-47. According to Pantoja, ...