The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Mary Lee ("Lee") has sued her former employer, Waukegan Illinois Hospital Company, LLC ("Waukegan"), charging it with violating the Family Medical Leave Act ("FMLA," 29 U.S.C. §§2601-2654).*fn1 Waukegan moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. Except for Lee's violations described in n.4, the litigants have complied with this District Court's LR 56.1 (see n.3), including their submission of legal memoranda. For the reasons stated here, Waukegan's motion is denied.
Summary Judgment Standard
Every Rule 56 movant bears the burden of establishing*fn2
the absence of any genuine issue of material fact (Celotex
Catrett, 477 U.S. 317, 322--23 (1986)). For that purpose courts
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,*fn3 viewed of course in the light most favorable to non-movant Lee.
Waukegan hired Lee as a radiologic technologist in 2007 (W. St. ¶6). Lee's job was to perform x-rays, bone density exams, electrocardiography (attaching electrodes to a patient's chest to record the electrical signals emanating from the heart) and phlebotomy (drawing blood from patients for lab work) (id. ¶7). Lee's direct supervisor was Gina Barrett ("Barrett") (id. ¶9), who in turn reported to Judy Sandler ("Sandler") (id.).
Sometime in 2008 Lee was diagnosed with peripheral neuropathy (W. St. ¶12). Lee discussed her condition with Barrett, who told Lee that her own mother had the same condition and was confined to a wheelchair (id. ¶¶14, 16-17). In March 2009 Lee's physician recommended that she undergo an outpatient surgical procedure to treat a neuroma (a growth of nerve tissue) associated with her peripheral neuropathy (id. ¶13). Lee met with a Waukegan human resources representative, who gave her an application for FMLA leave (id. ¶21). Lee submitted the paperwork to Barrett, and Barrett approved the request on March 10, 2009 (id. ¶23). Notwithstanding that approval, Barrett was upset that Lee requested FMLA leave without first consulting her and was upset that Lee did not provide her with what she considered adequate notice of the request (id. ¶26).*fn4
In late February or early March 2009 Waukegan's senior managers directed Barrett and Sandler to fire one full time employee (W. St. ¶34). Human resources manager Scott Dimmick ("Dimmick") provided Barrett with a standard form to grade the radiologic technologists (id. ¶¶36-37). Barrett filled out the form, assigning a numerical score to various measures of each employee's performance, such as experience, customer service, problem solving and attendance (id. ¶43). Barrett gave Lee a score of 85, a full 150 points lower than the next lowest score (id. ¶62). Dimmick reviewed the scores, confirmed with Barrett and Sandler that the scores were accurate, informed senior management that Lee had received the lowest score and recommended to senior management that Waukegan fire Lee (id. ¶65-66). Senior management approved her firing (id. ¶66).
On March 20, 2009 Dimmick, Sandler and Barrett met with Lee and told her that she was fired (L. St. ¶21). At the meeting Lee asked Dimmick if she was being fired because she had taken FMLA leave (W. St. ¶70). Dimmick replied that he had not been aware that Lee took FMLA leave (id.). Lee says that she expressed concern that she was fired because she had taken FMLA leave, to which Dimmick responded: "I will tell you that we need reliable and healthy employees" (L. St. ¶22).*fn5
Lee claims that Waukegan retaliated against her for exercising rights protected by FMLA. Although Lee styles that under the rubric of "retaliation," her charge is actually one of interference with her right to take FMLA leave. Section 2615(a)(2) prohibits retaliation for "opposing any practice made unlawful by this subchapter," and Section 2615(b) prohibits retaliation for filing a charge of FMLA discrimination, providing information regarding a charge of FMLA discrimination or testifying in a proceeding regarding FMLA discrimination. Lee did none of those things. Section 2615(a)(1), however, prohibits interference with the exercise of FMLA rights, which includes firing the employee because she took FMLA leave (29 C.F.R. §825.220(c)).
To survive the current summary judgment motion under the "direct method" identified a bit later, Lee must establish that there is a genuine issue of material fact that Waukegan "intended to punish her for requesting or taking FMLA leave" (Smith v. Hope Sch., 560 F.3d 694, 702 (7th Cir. 2009)). In that regard the parties' memoranda did not address whether Waukegan's intent must be the "but for cause" or merely a "motivating factor" for firing Lee. Lewis v. School Dist. #70, 523 F.3d 730, 741-42 (7th Cir. 2008) says that a plaintiff need prove only that the FMLA claim was a "motivating factor" in the employer's decision to fire her, relying on Title VII cases that impose the same standard. But by contrast, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348-49 (2009) holds that the Age Discrimination in Employment Act ("ADEA") requires a plaintiff to prove that age was the "but for" cause of the employer's adverse action and cautions against importing Title VII standards into the analysis of other statutes. Gross, id. at 2350 relied on the text of the ADEA, which prohibits discrimination "because of" age. Section 2615(a)(1) and the related regulations use neither the "motivating factor" nor the "because of" language, so it is not clear whether or how Gross may affect the standard in FMLA cases. Regardless, Lewis has not been questioned by any post-Gross Seventh Circuit case, and this opinion will treat the "motivating factor" standard as still applicable.
As Smith, 560 F.3d at 702 teaches, Lee may prove her FMLA claim using either the direct approach, in which a plaintiff adduces direct or circumstantial evidence of the employer's discriminatory intent, or the indirect approach, which employs the sequential burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Lee calls upon both methods, but because she survives Waukegan's summary ...