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Shervon Dean v. the Wackenhut Corporation

May 4, 2012


The opinion of the court was delivered by: Magistrate Judge Nolan


Plaintiff Shervon Dean (Dean) sued her former employer, The Wackenhut Corporation (Wackenhut), alleging that Wackenhut discriminated against her based on her sex (pregnancy), interfered with the exercise of her rights under the Family and Medical Leave Act (FMLA), and retaliated against her for taking FMLA leave. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and a three-day jury trial was held between December 5 and December 7, 2011. At trial, Dean moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on her FMLA interference claim. The Court took the motion under advisement pending the jury's verdict. The jury returned a verdict in favor of Wackenhut on all three of Dean's claims. Following the jury verdict, Dean renewed her motion for judgment as a matter of law and in the alternative sought a new trial under Rules 50(b) and 59 of the Federal Rules of Civil Procedure. As explained below, Dean's motion for judgment as a matter of law and her renewed motion for judgment as a matter law or in the alternative for a new trial are denied.


Wackenhut provides security services to private and government facilities throughout the United States. Dean was employed by Wackenhut as a security guard between January 2001 and December 2006. For most of her tenure, Dean was assigned to The Rookery building located at 209 S. LaSalle Street in Chicago, Illinois. In November 2006, Dean first learned she was pregnant with her first child. Trial Tr. 84, 114. On December 7, 2006, Dean requested in writing a day off of work on December 27, 2006 to attend a "prenatal care" doctor's appointment. Wackenhut denied Dean's as untimely on the ground that she failed to submit her request by a previously set October 31, 2006 deadline. Most of the events which followed were disputed at trial. It was undisputed, however, that Dean did not report to work after December 26, 2006. Dean contended that she attended her prenatal appointment on December 27, 2006 and while at the appointment received a voice mail message from a Wackenhut representative terminating her employment. According to Wackenhut, Dean voluntarily abandoned her job by failing to communicate with Wackenhut or report to Wackenhut's office as instructed after December 26, 2006.


A. Judgment as Matter of Law

Rule 50 authorizes the entry of judgment as a matter of law if a party has been fully heard on an issue during a jury trial and "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a). The relevant question is "whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of" the non-moving party. Hall v. Forest River, Inc., 536 F.3d 615, 619 (7th Cir. 2008). This standard mirrors the standard for granting summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). In deciding a judgment as a matter of law motion, the court should consider all of the evidence, but must draw all reasonable inferences in favor of the non-moving party and must not make credibility determinations or weigh the evidence. Id.

Dean argues that the evidence was insufficient for a reasonable jury to find in Wackenhut's favor on her FMLA interference claim. To prevail on her FMLA interference claim, Dean had to prove five elements: (1) she was eligible for the FMLA's protections, (2) Wackenhut was covered by the FMLA, (3) she was entitled to leave under the FMLA, (4) she provided sufficient notice of her intent to take leave, and (5) Wackenhut denied Dean FMLA benefits to which she was entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). As to the first two elements, Wackenhut did not dispute that Dean was an eligible employee and that it is an employer covered by the FMLA. Id. (noting that the first and second requirements concern the FMLA's years and hours--in-service eligibility requirements and the definition of which employers are subject to the FMLA's provisions); Doc. 86 at 5.

With regard to the third element, Wackenhut argues that Dean was not entitled to leave under the FMLA for "routine prenatal care." Doc. 124 at 6.*fn1 This argument is without merit. The evidence at trial established that Dean was entitled to leave under the FMLA. Under the FMLA, qualifying employees are entitled to up to twelve weeks of unpaid leave for a "serious health condition." 29 U.S.C. § 2612(a)(1)(D). A serious health condition is defined as "an illness, injury, impairment, or physical or mental condition that involves--(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). There was no evidence Dean spent time as an inpatient. Her claim is thus properly evaluated under the "continuing treatment" prong. The FMLA regulations define "continuing treatment by a health care provider" as including "[a]ny period of incapacity due to pregnancy, or for prenatal care." 29 C.F.R. § 825.114(a)(2)(ii).*fn2 There is no requirement that prenatal care be for an abnormal pregnancy, only that the absence is "for prenatal care." Contrary to Wackenhut's assertions, Dean was entitled to take leave for prenatal care without demonstrating that she suffered from any complications associated with her pregnancy or that her pregnancy caused her to be incapacitated from work. It was undisputed at trial that Wackenhut knew Dean's request for time off on December 27, 2006 was for prenatal care. Trial Tr. at 168, 235, 237; Def's Exhs. 4, 5. No rational jury could have concluded that Dean did not have a serious health condition that entitled her to FMLA leave, and thus, Dean satisfied the third requirement.

The next question is whether a rational jury could have concluded that Dean provided sufficient notice under the FMLA and its regulations of her intent to take leave. "When the employee fails to give his employer proper notice, the employer is under no duty to provide FMLA leave." Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). The Court finds that no rational jury could conclude that Wackenhut did not have timely and sufficient notice of Dean's intent to take FMLA leave on December 27, 2006.

The content of Dean's notice to Wackenhut of her intent to take leave was sufficient. Regarding the substantive requirements for notice, "it does not take much for an employee to invoke his rights; he must simply provide enough information 'to place the employer on notice of a probable basis for FMLA.'" Righi, 632 F.3d at 409. As Judge Posner has explained, the employee "doesn't have to write a brief demonstrating a legal entitlement. He just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave." Aubuchon v. Knauf Fiberglass, 359 F.3d 950, 953 (7th Cir. 2004). The applicable regulations make clear that an employee "need not expressly assert rights under the FMLA or even mention the FMLA" in his notice. 29 C.F.R. § 825.302(c). The "Employee Request for Time Off" form submitted by Dean on December 7, 2006 indicating that she needed December 27, 2006 off work for a "prenatal care doctor's appt" adequately advised Wackenhut that Dean's absence would be due to a FMLA-qualifying reason. Def's Exh. 4.

Dean also gave timely notice of her need for leave. Under the FMLA, "[i]f need for leave is foreseeable at least 30 days in advance, the employee must provide that much notice." Aubuchon, 359 F.3d at 951 (citing 29 U.S.C. § 2612(e)(2)(B); 29 C.F.R. § 825.302(a)). If 30 days notice is not practicable, even though the need is foreseeable, notice must be given as soon as practicable. Id. Wackenhut contends that Dean's notice did not meet the timing of the required notice because "Dean did not submit her request for leave at least 30 days in advance of her initial prenatal visit." Doc. 124 at 8. Wackenhut's argument is unavailing for two reasons. First, Wachenhut introduced absolutely no evidence at trial that it denied Dean's request for leave because she failed to comply with the FMLA's 30-day notice requirement. Second, Wackenhut expressly disavowed the FMLA's 30-day requirement in pretrial proceedings in this case. In its trial brief filed prior to trial, Wackenhut stated that its policy regarding the timing of an employee's required notice, "is less rigid than the federal mandate" of 30 days. Doc. 86 at 4. Wackenhut's trial brief stated: "While Wackenhut requires advance notice of foreseeable leave circumstances, it does not stand on the statutory thirty (30) day notice requirement, preferring instead to let the circumstances which arise dictate what advance notice is necessary." Id. At his deposition in this case, Anthony Cano, Wackenhut's supervisor for the Chicago Loop region, was specifically asked whether Wackenhut had a requirement that a request for leave be submitted 30 days in advance. Doc. 32-6 at 18. Cano testified that "[t]here is no requirement." Id. at 19.

The Wackenhut representatives at trial testified that Dean's leave request dated December 7, 2006 was denied as untimely solely because she failed to request leave before October 31, 2006 per Wackenhut's memorandum of October 6, 2006. Trial Tr. 164, 166, 211, 236; see also Def's Exhs. 1, 5. Wackenhut's memorandum to all security officers dated October 6, 2006 required that employees request "vacation/personal days" off for the weeks of December 18, 2006 through January 2, 2007 by October 31, 2006. Def's Exh. 1. The memorandum stated that Wackenhut "will only be able to approve what we can for those weeks, this will be a first come first serve bases so anything after Oct. 31. will not be approved." Id. By denying Dean's December 7, 2006 request for FMLA leave to attend a prenatal appointment on December 27, 2006 as untimely because the request was not made before October 31, 2006, Wackenhut impermissibly required more than 30 days' advance notice. Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 971 (7th Cir. 2000) (stating "an employer may not insist on more than 30 days' notice.").*fn3

The only other evidence presented at trial regarding Wackenhut's FMLA notice requirement was a deadline of two weeks advance notice prior to taking leave. Trial Tr. 65, 164, 179, 190, 211; Def's Exhs. 4, 15. The Wackenhut "Employee Request for Time Off" form properly used by Dean to request leave states that "[a]ll requests for time off are to be submitted to the SITE SUPERVISOR at least TWO WEEKS in advance . . . ." Dean's December 7, 2006 leave request was ...

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