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Barrett v. State Department of Correction

United States District Court, C.D. Illinois

July 26, 2013

CINDY BARRETT, Plaintiff,
v.
STATE OF ILLINOIS DEPARTMENT, OF CORRECTIONS, Defendant

Page 985

For Cindy Barrett, Plaintiff: John A Baker, BAKER BAKER & KRAJEWSKI LLC, Springfield, IL.

For State of Illinois Department of Corrections, Defendant: Erik P Lewis, OFFICE OF THE ATTORNEY GENERAL, Springfield, IL.

OPINION

MICHAEL P. McCUSKEY, U.S. DISTRICT JUDGE.

Page 986

This case is about a claim that the Illinois Department of Corrections interfered with an employee's rights under the Family and Medical Leave Act. The Department of Corrections has an attendance policy of progressive discipline, wherein an employee is given increasingly strong penalties for being absent from work without approval or authorization. The policy also included a reset switch that forgave all prior unauthorized absences if an employee had no unauthorized absences in a two-year period.

Over the span of seven years, Plaintiff accumulated twelve unexcused absences from work. After her twelfth absence, and in accordance with employee policy, Plaintiff was discharged. Two years later, she sued, alleging that the Department of Corrections failed to treat three of the twelve absences as authorized. Plaintiff asserts that she was entitled to protected leave on those three dates to take care of her family and her medical needs, as mandated by the Family and Medical Leave Act. Because (1) the absences that she challenges occurred more than seven years before she filed her claim; and (2) the FMLA has a two-year statute of limitations, only permitting an action to be brought " not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought" ; and (3) this court interprets the phrase " last event constituting the alleged violation" to be the denial of FMLA-protected leave, rather than her ultimate discharge from employment; this court finds that Plaintiff's claim is time-barred.

The case is before the court on both parties' cross-motions for summary judgment. This court has reviewed Defendant's Motion for Judgment on the Pleadings (#18) and Plaintiff's Response (#20); Defendant's Motion for Summary Judgment (#24), Plaintiff's Response (#32), and Defendant's Reply (#33); and Plaintiff's Motion for Partial Summary Judgment (#26) and Defendant's Response (#30). Following this careful review, this court finds that Plaintiff's claim is time-barred. Accordingly, Defendant's Motion for Summary Judgment (#24) is GRANTED and Plaintiff's Motion for Partial Summary Judgment (#26) is DENIED.

Background

Plaintiff was employed by Defendant Illinois Department of Corrections (" IDOC" ) in the administrative business office of the Danville Correctional Center. (Plaintiff's Statement of Facts (#32) (" SoF" ) ¶ 1). IDOC is an employer, as that term is defined by the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (" FMLA" ). (SOF ¶ 2). The terms and conditions of Plaintiff's employment were controlled by an attendance policy. (SOF ¶ 3). At the time of Plaintiff's discharge, IDOC had a Revised Policy. (SOF ¶ ¶ 4, 16). Under the Revised Policy, all absences are classified as " authorized" or " unauthorized" . (SOF ¶ 5). An unauthorized absence is one for which the absent time was not approved. (SOF ¶ 6). The policy provides that an employee does not serve any suspension or lose pay for any absence before the eleventh unauthorized absence. (SOF ¶ ¶ 7, 8). For the eleventh unauthorized absence, an employee is given a 20-day suspension, of which the employee is expected to serve five days. (SOF ¶ 9). An employee may be discharged for his or her twelfth unauthorized absence. (SOF ¶ 10). If an employee sustains a 24-month period without any unauthorized absences, then

Page 987

the unauthorized absence count is reset to zero. (SOF ¶ 11).

The parties agree that Plaintiff was absent without authorization on the following dates: December 15, 2003; June 2, 2004; June 10, 2004; December 8, 2004; December 22, 2004; August 10, 2005; August 3, 2006; October 3, 2007; December 31, 2008; October 30, 2009; January 15, 2010; and May 14, 2010. (SOF ¶ 13). The parties contest whether she was entitled to protected FMLA leave for three of those dates: December 15, 2003; December 22, 2004; and August 10, 2005. (SOF ¶ 14). The 2003 absence was because Plaintiff was diagnosed with pneumonia. (SOF ¶ ¶ 55-63). The 2004 absence was because Plaintiff's daughter had been hospitalized, and Plaintiff was the only family member available to care for her. (SOF ¶ ¶ 68-72). Plaintiff admits that she did not specifically request FMLA leave for this absence. (SOF ¶ 74). The 2005 absence was because Plaintiff left work for an hour to attend physical therapy following surgery on her hands. (SOF ¶ ¶ 77-82). Plaintiff admits that she did not specifically request FMLA leave for this date either. (SOF ¶ 81). The parties also agree that the nine remaining absences were correctly classified as unauthorized and were not protected under the FMLA. (SOF ¶ 15).

At the time of the three absences, the Revised Policy had not yet been put in place, but rather, employment was subject to an earlier attendance policy that permitted discharge upon an employee's tenth unauthorized absence (" Original Policy" ). (SOF ¶ ¶ 4, 17). Under the Original Policy, employees were required to serve three days of a ten-day suspension for their eighth unauthorized absence and five days of a fifteen-day suspension for their ninth unauthorized absence. (SOF ¶ 18). On October 3, 2007, Plaintiff accrued her eighth unauthorized absence under the terms of the Original Policy. (SOF ¶ 87). Plaintiff served three days of actual suspension for her eighth unauthorized absence beginning on November 28, 2007, lost three days of pay as a result, and returned to work on December 1, 2007. (SOF ¶ 89). The Revised Policy was made effective September 5, 2008. (SOF ¶ 4). Because the Revised Policy, which is more lenient than the Original Policy, was made effective between Plaintiff's eighth and ninth absences, she was not suspended for her ninth and tenth absences. The parties do not discuss whether Plaintiff was suspended for her eleventh absence, as would have been appropriate under the Revised Policy.

Plaintiff accrued her twelfth unauthorized absence on May 14, 2010. (SOF ¶ 12). Following this absence, Plaintiff was suspended pending discharge on September 30, 2010, and discharged on October 15, 2010. ( Id. )

Procedural history

On January 27, 2012, Plaintiff filed her complaint against IDOC. (#1). That complaint stated one count of a violation of Plaintiff's substantive rights under the FMLA and one count of retaliation under the Illinois State Officials and Employees Ethics Act. ( Id. )

On May 7, 2012, IDOC filed a Motion to Dismiss. (#4). Regarding the Ethics Act claim, IDOC argued that the claim was barred by Eleventh Amendment immunity. (#5) Plaintiff conceded as much. (#9). Regarding the FMLA claim, IDOC noted that Plaintiff had appealed her discharge from IDOC to the Illinois Civil Service Commission, and that that administrative body had approved Plaintiff's discharge. IDOC thus argued that the Illinois administrative proceedings should bar the present claim under claim preclusion and issue preclusion principles. (#5). On June 28, 2012, Magistrate Judge David G. Bernthal entered a Report and

Page 988

Recommendation, recommending that the Ethics Act claim be dismissed, but that the FMLA claim be permitted to proceed. (#11). On January 3, 2013, this court accepted the Report and Recommendation. (#15).

On January 9, 2013, IDOC filed a Motion for Judgment on the Pleadings. (#18). Responses were due by January 28, 2013. On March 14, 2013, Plaintiff filed an untimely Response. (#20). On March 26, 2013, IDOC filed a Motion to Strike the Response, arguing that it was untimely. (#21). On April 9, 2013, Plaintiff filed her Response to the Motion to Strike, admitting that the filing was untimely but arguing that the delay was not prejudicial. (#23).

On May 16, 2013, IDOC filed a Motion for Summary Judgment. (#24). Also on May 16, 2013, Plaintiff filed her own Motion for Partial Summary Judgment. (#26). On May 22, 2013, Plaintiff filed a Motion to Supplement her Motion for Partial Summary Judgment. (#28). On June 10, 2013, IDOC filed a Response to Plaintiff's Motion for Partial Summary Judgment. (#30). On June 12, 2013, Plaintiff filed her Response to IDOC's Motion for Summary Judgment. (#32). On June 25, 2013, IDOC filed its Reply to its Motion for Summary Judgment. (#33). No timely Reply was filed to Plaintiff's Motion for Partial Summary Judgment.

Analysis

Plaintiff claims that IDOC interfered with her FMLA rights by classifying her absences on December 15, 2003; December 22, 2004; and August 10, 2005; as unauthorized when they should have been authorized, and that but for this incorrect classification, she would not have accumulated the twelve unauthorized absences justifying her discharge. Plaintiff asserts that her absences on those three dates should have been protected under the FMLA. Defendant's position is that adjudication of those absences is time-barred by the FMLA's statute of limitations and barred by claim and issue ...


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