The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff, Andrea Archie, filed a complaint against her employer, the Sheriff of Cook County alleging that her employer interfered with her Family Medical Leave Act ("FMLA") benefits, retaliated against her for her use of FMLA benefit time, and discriminated against her based on her disability in violation of the Americans with Disabilities Act ("ADA"). Defendant Sheriff filed for summary judgment on all counts. For the reasons stated below, this Court denies the Sheriff's motion.
As a preliminary matter, this Court denies plaintiff's motion to strike the affidavit of Rosemary Nolan. In so ruling, however, this Court does not dispense with its evaluation of the affidavit, as with all the other evidence presented in relation to the summary judgment now before this Court, and thus this Court disregards those portions of the affidavit that are conclusions rather than statements of fact.
Andrea Archie began working for the Cook County Sheriff's Department as a deputy sheriff in the Cook County Department of Corrections in 1996. She has continued in that capacity to date. As a correctional officer, Archie is responsible for maintaining the safety and well-being of pretrial detainees. For the first nine years as a deputy, Archie worked from 3:00 p.m. to 11 p.m., but in 2005 was transferred to the day shift (7 a.m. to 3 p.m.) at her request.
Archie sought a promotion from deputy to sergeant on two occasions. In order to be eligible for promotion to sergeant a deputy sheriff must take a test administered by the Merit Board.*fn1 If the officer passes the test, he or she is "certified" as eligible for promotion. If the CCDOC has a promotional opportunity, certified officers will be considered for promotion based on their disciplinary history, criminal history, driving record, weapons qualifications (if applicable), attendance history, in-service training final exam scores, writing samples, work sample score (if applicable) and interview score.
Archie was certified as eligible for promotion when she took and passed the Merit Board test in 2003 and 2005. She was interviewed, but not promoted, in both 2003 and 2005. The Merit Board test was not offered in 2006. Archie did not take the Merit Board test in 2007 when it was next offered or anytime since 2005. The 2007 certified list was effective on December 19, 2007. Archie did not take the test again because she thought she would not be promoted unless she was politically connected and any attempt would be futile. Archie also believed that that there were "unspoken rules" for promotion including that an officer should not have used FMLA time, sick leave, and must work in the Superintendant's Office. Archie identified some individuals (Yolanda Darring, Thomas Conley, Norlander Young, Lonnie Hollis, and Wilfredo Cintron) promoted to sergeant since 2006, though she does not know from which list those individuals were promoted. Archie believes she was more qualified than those individuals.
Archie suffers from disabling depression and anxiety. She also suffers from diabetes, though it is not disabling. Each year, beginning in 2005, Archie has applied for and received FMLA leave. Archie has always taken her FMLA leave on an intermittent basis. Each year, Archie has been approved for five days a month of intermittent FMLA. There is no regular schedule on which Archie uses her leave. The days of the week that Archie uses her FMLA leave vary from week to week. More often than not, Archie does not give advance notice of her intent to use her FMLA day. She has made it a common practice to describe a day off as FMLA on the morning she takes an absence. Archie has never called in requesting to take a day off as an FMLA day and been told by a supervisory official that she could not take the day off. Supervisory officials have never told her that she could not use FMLA leave for a future day. On approximately ten occasions over the last five years, Archie has not been permitted to leave in the middle of her shift and claim it as FMLA time. Often, but not always, she was told that there was no one to cover for her.
CCDOC's General Orders directs that each Superintendant or Unit head will review all employees' attendance record each month. An employee would be considered to be abusing medical time if that employee was using medical time when not sick. Specifically, abuse may be suspected if an employee regularly or routinely uses sick time (1) in conjunction with scheduled days off, (2) in conjunction with holidays, (3) immediately before, after or on paydays, (4) once it is earned, or (5) in other patterns which leads the Superintendent or Unit Head to suspect abuse. If an employee is suspected of abusing sick time, the employee may receive counseling. Archie testified that counseling means warning. When FMLA leave is not foreseeable, an employee must call in one hour before their shift begins or as soon as practicable.
A March 7, 2007, memorandum from Superintendent Villanueva directed to all shift commanders contained a list of "FMLA/Medical Suspected Abusers." Archie was listed as a suspected FMLA and medical leave abuser. At some point in 2007, Archie obtained a copy of the memorandum. Around March 14, 2007, Archie was called to Lieutenant Moore's office and told that she was suspected of abusing her leave time. A union representative was present at the meeting at Archie's request. Archie was given two "counseling" forms, which she believed constituted harassment because she received two forms. Archie received a Disciplinary Action Form for calling in at 6:33 a.m. on May 23, 2007, to invoke FMLA leave that day. Archie was placed into "proof" status over Labor Day weekend in 2007.
Archie filed two grievances in response to the two counselings she received. Both grievances were resolved in her favor and the counselings were removed from her file. Archie filed twenty grievances or more since 2007. Archie believes the disciplinary action forms she was given over the years since 2007 were in retaliation for her exercising her rights under the FMLA. Archie asserts that, besides being disciplined, there were other times she was harassed without being disciplined. In June 2007 when Sergeant Lyles referenced Archie's FMLA leave and that Archie would have to come to work now that her leave has run out or words to that effect. In December 2007 Captain McGuire yelled at Archie in his office without a union representative present in violation of her Weingarten rights. Archie believes the number of write-ups she received increased in 2007. She received sixteen write-ups in 2007 and 2008. The increase coincided with identification as a suspected FMLA abuser in the Memorandum of March 7, 2007.
Archie believes that she was harassed as a result of taking FMLA, but admits that no one had mentioned her disability when harassing her. Archie also believes that the denial of a promotion was due to a lack of political connections, use of FMLA leave time, and because she did not work in the Superintendent's office. No one ever indicated to Archie that she was not being promoted due to her disability. Archie testified that she had been warned against using the accommodation for her disability. The only accommodation Archie receives is FMLA leave. On January 7, 2008, Archie filed a charge with the Illinois Department of Human Rights alleging discrimination and retaliation in violation of the ADA.
A party is entitled to summary judgment if all of "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. When considering a summary judgment motion, the Court construes the facts and all reasonable inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005). A genuine issue of material fact exists "if the evidence is such ...