The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Plaintiff Darren Cuff ("Cuff") brought the instant two-count complaint alleging interference and retaliation under the Family Medical Leave Act, 29 U.S.C. § 2615 (the "FMLA"). Cuff's suit names Trans States Holdings, Inc. ("TSH"), Trans States Airlines, LLC ("TSA"), and GoJet Airlines, LLC ("GoJet"), and Ed Trowbridge ("Trowbridge"), the managing director of customer and ground services for TSH. The Defendants seek summary judgment on both counts on a number of grounds, including that TSA was the only entity that employed Cuff, and it is not subject to the provisions of the FMLA. Cuff brings a cross-motion for summary judgment for liability on his FMLA interference claim. For the reasons that follow, Cuff's Motion for Summary Judgment on his FMLA interference claim is granted, and the Defendants' Motion for Summary Judgment is denied.
As a preliminary matter, Cuff moves to strike the affidavit of Gerald Wigmore, ("Wigmore") who is the Senior Vice President and Chief Financial Officer of TSH. Cuff also moves to strike any argument by Defendants that Cuff overused narcotics.
Cuff was employed as "Regional Manager-United Express Operations" at O'Hare Airport in Chicago from October 2006 until his termination on January 11, 2010. The identity of Cuff's employer is at issue, however, which is key to determining whether Cuff was even entitled to FMLA leave. In order to be a covered employer under the FMLA, the employer must employ at least 50 employees within 75 miles of the employee's worksite. 29 U.S.C. § 2611 (2)(B)(ii); Thomas v. Pearle Vision, Inc., 251 F.3d 1132, 1136 (7th Cir. 2001).
Defendants argue that Cuff was employed solely by TSA, the company listed on his paychecks and W-2 forms, while Cuff argues Defendants are joint or integrated employers as those terms are used in the FMLA, making him eligible for coverage despite the 50-employee rule. Wigmore's affidavit provides information about the corporate structure of TSH and two of its wholly-owned subsidiaries, TSA and GoJet.
Cuff takes issue with Wigmore's affidavit because it supplements the FED. R. CIV. P. 30(b)(6) testimony previously offered by Defendants' corporate representatives. Cuff cites case law standing for the proposition that this rule requires business entities to designate a deponent who is able to provide adequate testimony concerning the subjects identified in the Rule 30(b)(6) notice. See Smithkline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 2000 WL 116082, at *8 (N.D. Ill. Jan. 24, 2000).
But Cuff stretches the applicable law too far. A corporation is bound by this testimony in the same way that an individual deponent would be, but "this does not mean that a witness has made a judicial admission that formally and finally decides an issue." Canal Barge Co. v. Commonwealth Edison Co., No 98 C 0509, 2001 WL 817853, *1 (N.D. Ill. July 19, 2001) (quoting W.R. Grace & Co. v. Viskase Corp., 90 C 5383, 1991 WL 211647, at *2 (N.D. Ill. Oct. 15, 1991)). So a business entity may produce evidence that supplements or is contrary to its Rule 30(b)(6) deposition testimony. W.R. Grace, 1991 WL 211647, at *2. However, its witnesses are of course subject to cross-examination and impeachment if they contradict statements given by the company's Rule 30(b)(6) deponent. Id.
Cuff relies on Fischer v. Avanade, Inc., 519 F.3d 393, 406--07 (7th Cir. 2008), but that case is distinguishable. In Fischer, the Seventh Circuit held that affidavits, when offered to contradict the affiant's deposition, lack credibility and should be disregarded in summary judgment proceedings unless the affiant can plausibly explain the discrepancy. Here, Cuff points to one discrepancy between the Wigmore affidavit and the testimony of Defendants' Rule 30(b)(6) deponents. Terry Basham ("Basham"), the Vice President of Customer Service for TSH and its Rule 30(b)(6) deponent, testified during his deposition that the corporate defendants share accounting, legal, and payroll departments. Wigmore's affidavit contends that TSA and GoJet contract with TSH for the provision of these services. This is not a contradiction as much as an explanation, so the affidavit may stand. See Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999) (holding that witness may clarify ambiguous or incomplete deposition testimony). In Fischer, an employment discrimination case, the court noted that because the witness had two prior opportunities to explain why the employee was passed over for a position, his initial failure to provide a detailed explanation raised a fact issue as to whether the detailed explanation in his affidavit was a later fabrication. Fischer, 519 F.3d at 407. Basham's failure to provide a detailed explanation as to how TSH's affiliates received certain services from the company does not raise the same suspicions.
Cuff also seeks to strike any argument by Defendants that he overused narcotics. But because the Court has previously granted Defendants' motion to amend its affirmative defenses, this request also is denied and the motion to strike is denied in its entirety.
The following facts are taken from the parties' Local Rule 56.1 statements, deposition testimony, and exhibits.
Cuff was employed at O'Hare Airport in Chicago. As a regional manager, he was responsible for maintaining a working knowledge of airport operations and acting as a liaison to the FAA and other government agencies. Basham hired Cuff and supervised him until October 2008. Thereafter, Trowbridge supervised him. The two did not get along, as Cuff was unhappy with Trowbridge's management style and thought he was a micromanager.
Cuff's business card bore the logo of all three companies, and he contends that he was required to, and did, do work for all three companies on a regular basis. Cuff was identified in internal directories as the contact for all three Defendants at the airports in his region. Cuff points to deposition testimony from Basham that his job description included work for GoJet and TSA, as well as his own testimony that he performed work for both companies "every day." He also points to an e-mail from Tom Haarmann ("Haarmann"), the customer service manager for GoJet, asking him to find out who accessed a certain door at the airport.
In an affidavit, Cuff asserts that he participated in employee meetings for both TSA and GoJet, drafted policies and procedures for both airlines, and represented both airlines during meetings with United Airlines about United Express operations. He also contends that he had access to both TSA and GoJet's computer systems. Cuff also has submitted a November 7, 2008, e-mail from Trowbridge to various airlines informing them that "[e]ffective immediately, Darren Cuff, Regional Manager, Trans States Holdings, Inc. will be your go to person if there are any operational issues or concerns with Trans States or GoJet Airlines flights operating in and out of your cities." (This also calls into question Defendants' assertion that Cuff was solely an employee of TSA, given that Trowbridge explicitly identified him as working for TSH.) Cuff also has supplied e-mails from the U.S. Department of Homeland Security that indicate he was a contact person for both GoJet and TSA.
Basham's testimony in part supports that of Cuff on this issue in that he acknowledged that Cuff was expected to support Haarmann and represented both airlines in dealings with United Express and the Department of Homeland Security. While Defendants vigorously dispute that Cuff was employed by GoJet in their briefing, the point to little record evidence disputing his contentions. They acknowledge that Cuff's business card bore the logo of all three companies, and their only response to Cuff's contentions that he did perform work for all three companies is to say, "[t]here is no evidence that Cuff was required to perform work for GoJet." Def.'s Resp. in Opp'n to Pl.'s Statement of Facts, ¶ 34. Given that Cuff has pointed to record evidence supporting his position, this is insufficient.
Several of the other denials in Defendants 56.1(b)(3) Response in Opposition to Plaintiff's Statement of Facts do not cite to any evidence in the record. For example, Defendants contend that Haarmann merely asked Cuff to check the door as a favor, but cite to no evidence supporting this interpretation. Id. at ¶ 36. They also point to no record evidence supporting their contentions that Cuff had access only to TSA's computers or that while Cuff was listed as the on-site contact for GoJet, all functions were performed by Haarmann. Id. at ¶ 37, 38. Such general denials amount to admissions. See Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).
Regardless, in July 2008, Trowbridge approved Cuff's FMLA leave for Crohn's disease and bipolar disorder. However, Defendants characterize this approval as "inadvertent." It is undisputed that TSA employs only 33 workers within 75 miles of O'Hare, so if TSA alone employed Cuff, he would not have been entitled to FMLA benefits. For the purposes of this motion, Defendants do not challenge Cuff's position that TSH and TSA are joint or integrated employers, but contend that TSH had no employees within 75 miles of O'Hare at the time of Cuff's leave request.
In late 2009, Cuff experienced health issues related to his bipolar disorder. He met with his physician, Dr. Eric Christoff ("Christoff"), to discuss his conditions. Christoff completed the necessary FMLA certification forms for Cuff to take a four-week medical leave from work. On December 9, 2009, Cuff e-mailed Trowbridge and Basham and told them about his need for FMLA leave. The next day, Trowbridge denied Cuff's request for leave because TSA did not employ 50 employees within 75 miles of Cuff's worksite. Later that month, Cuff decided that he needed to take the leave because his medical conditions were not improving. Cuff was granted a two-week personal leave, from December 31, 2009, until January 10, 2010. When he did not return to work thereafter, Cuff was fired.
The parties dispute some of Cuff's conduct while he was employed. Defendants contend that Cuff failed to follow doctor's orders in regard to his treatment, and that during the course of his employment, he took FMLA leave for non-existent doctor's appointments. Cuff denies most of these allegations. But he admits that he has not seen a psychologist as recommended by his doctor or taken the medication that necessitated his leave request. Additionally, Defendants contend that Cuff had an inappropriate relationship with a subordinate, lied during the course of a company investigation of the matter, and encouraged the subordinate to lie. Cuff denies these allegations.
Ten days prior to his termination, Cuff moved from Carpentersville, a Chicago suburb, to his parents' home in Monticello, Wisconsin, which was about 180 miles away. Cuff planned the move in December 2009. Cuff contends that by then he expected to be fired, and if he had not been, he could have commuted to work at O'Hare.
2. Defendants' Corporate Structure
TSA and GoJet are regional airlines that operate flights as United Express. They are wholly-owned subsidiaries of TSH. In December 2009, as noted above, TSA had 33 employees with 75 miles of O'Hare, while GoJet employed 343 employees in that radius of the airport and TSH had none. The three companies use the same corporate headquarters in Bridgeton, Missouri, although they have separate offices.
The parties dispute the ownership of TSH, TSA, and GoJet. Cuff contends these entities are solely owned by Hulas Kanodia ("Kanodia") based on the testimony of Trowbridge, although he misattributes this testimony to Basham. Defendants contest this vigorously. They point to deposition testimony by Capt. Randall Zehnder, Director of Flight Operations for TSA, that TSA is a limited liability company that is fully owned by TSH. Additionally, Michaela Green, the Rule 30(b)(6) deponent for GoJet, testified GoJet is a limited liability company wholly owned by TSH. This appears to be a distinction without much of a difference, however. The National Mediation Board findings in an unrelated proceeding that Defendants cite to (albeit in a footnote) in an effort to show that GoJet and TSA are not joint or ...