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Diamond Sledge v. Comcast Abb Management

June 20, 2012


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff filed a two-count first amended complaint alleging that defendants Comcast ABB Management, LLC, Comcast of Illinois VI, LLC (collectively, "Comcast"), and Norma Hopman violated the Family and Medical Leave Act of 1993, 29 U.S.C. § 2615 ("FMLA"), by interfering with her right to FMLA leave (Count I) and by retaliating against her for exercising her right to such leave in violation of § 105 of the FMLA (Count II). Defendant has moved for summary judgment on both counts, and plaintiff has moved for summary judgment on Count I. For the following reasons, plaintiff's motion is denied and defendants' motion is granted.


Under this district's Local Rule 56.1(a)(1)(3), a party moving for summary judgment must file "a statement of material facts as to which the moving party contends there is no genuine issue." Strict compliance with L.R. 56.1 is essential to allowing the parties-and the court-to identify material disputes of admissible evidence. See, e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings."). Accordingly, the court has disregarded statements that offer legal conclusions or arguments, as well as statements that lack proper evidentiary support.*fn1 The court has also ignored responses that attempt to deny facts that, based on the record, are undisputed, in addition to responses that impermissibly include additional facts or argument.

The court further notes that defendants have omitted a complete factual background section in their brief supporting their motion for summary judgment, instead asserting that "[t]he facts supporting Defendants' motion for summary judgment are set forth in the Defendants' Rule 56.1 Statement of Undisputed Material Facts." Contrary to defendants' understanding, an L.R. 56.1 statement is not a substitute for a statement of facts in a brief. Cleveland v. Prarie State College, 208 F. Supp. 2d 967, 972-73 (N.D. Ill. 2002) (citation omitted). While the former is designed to focus any material factual disputes for the court, the latter is a litigant's opportunity to describe the underlying events, provide relevant background information, and persuade the court. "These fundamental principles, that presumably are known by all lawyers practicing before this court including counsel herein, prohibit the type of irresponsible briefing that was submitted." Id. at 973.

The following facts are undisputed; the parties have agreed on a panoply of other assorted facts, but because they are immaterial, they have not been included in this recitation. In July 2010, plaintiff was working Monday through Friday as a supervisor in Comcast's Retention Department. That month, she met with her supervisor, defendant Hopman, to request time off on Tuesdays and Thursdays to take care of her child.Defendant Hopman denied that request. Plaintiff proceeded to use flex time or vacation time on Tuesdays and Thursdays, until September of that year, when she ran out of flex and vacation time and was disciplined for attendance violations.

On September 20, defendant Hopman made a note in her "Employee Rolling Documentation" file indicating that plaintiff was planning to request FMLA leave due to her daughter's asthma. (The FMLA entitles an eligible employee "to a total of 12 workweeks of leave during any 12-month period" to care for a child with "a serious health condition." 29 U.S.C. § 2612(1)(C).) In the same report, Hopman wrote that "there have been rumors that [plaintiff] takes every Tuesday and Thursday off to attend school."

On September 28, plaintiff met with Cristina Villazan, Comcast's Senior Director of Human Resources, to request FMLA leave to care for her daughter, and explained that her daughter suffered from asthma and plaintiff needed child care assistance on Tuesdays and Thursdays. At that meeting, plaintiff also informed Villazan that she was attending classes on Tuesdays and Thursdays. She did not, however, state that she intended to use FMLA leave to attend those classes, and Villazan did not discuss whether plaintiff was permitted to visit school (or attend classes) on days where she also took FMLA leave to care for her daughter. Villazan encouraged plaintiff to apply for FMLA leave.

The next day, Villazan told defendant Hopman and Eugene Gongora, a manager in the Human Resources Department, that plaintiff planned to apply for FMLA leave (and that if plaintiff's request was approved, some of the disciplinary action Hopman had issued for plaintiff's attendance violations would be rescinded pursuant to Comcast policy).

Plaintiff then applied for FMLA leave to take care of her asthmatic daughter. An eligible employee with FMLA leave to care for a child with a serious health condition may take her leave "in separate blocks of time due to a single qualifying reason"-here, plaintiff's daughter's asthma-and plaintiff requested such "intermittent" leave. 29 U.S.C. § 2612(b)(1).

Comcast's third-party FMLA leave administrator, Liberty Mutual, approved plaintiff's application to take FMLA leave up to two times per week to care for her child's serious health condition for the period between September 1, 2010, and August 31, 2011. Plaintiff began to take FMLA leave on Tuesdays and Thursdays.

On October 1, before learning that plaintiff's request for FMLA leave had been approved, defendant Hopman issued plaintiff an attendance-related "corrective action." On October 13, Hopman learned that plaintiff had been approved to take intermittent FMLA leave, up to two times a week, to care for her daughter and that plaintiff had no child care on Tuesdays and Thursdays.

On November 8, defendant Hopman emailed Gongora to inform him that plaintiff's co-workers were "getting really upset at the fact that they know of [plaintiff's] pattern of calling off on Tuesday and Thursday." After receiving that information, the Human Resources Department began to investigate plaintiff's possible misuse of FMLA leave, hiring an outside investigation company to conduct surveillance of plaintiff's home and monitoring her internet activity.

On January 25, 2011, after also learning that plaintiff had used FMLA leave on dates she had initially requested to take vacation, Comcast held a "fact-finding" meeting with plaintiff. At that meeting, plaintiff stated that she went to the library to study, in addition to running personal errands, on FMLA leave days.*fn2 Based on that admission and the fact that plaintiff had ...

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