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Wheatley v. Factory Card & Party Outlet

United States District Court, C.D. Illinois, Springfield Division

September 30, 2014

LORA J. WHEATLEY, Plaintiff,
v.
FACTORY CARD AND PARTY OUTLET, a division of AMSCAN HOLDINGS, INC., Defendant.

OPINION

SUE E. MYERSCOUGH, District Judge.

Before the Court is Defendant Factory Card & Party Outlet's Motion for Summary Judgment (d/e 23) against its former employee, now the Plaintiff in this case, Lora Wheatley. The motion is DENIED. The Court finds that there are genuine questions of material fact concerning whether Wheatley was a qualified individual with a disability under the Americans with Disabilities Act on the date of her termination, and concludes that Wheatley was not estopped from bringing her claim.

I. FACTUAL BACKGROUND

For nearly 12 years, Plaintiff Lora Wheatley worked for Defendant Factory Card and Party Outlet ("FCPO") in Springfield, Illinois. Motion for Summary Judgment ("Mot."), d/e 23 at 3. After starting as a store supervisor at the party-goods chain in 1996, Wheatley was later promoted to store manager. Id . On July 11, 2009, FCPO terminated Wheatley for not coming to work. The reason that Wheatley did not come to work on July 11 and that FCPO subsequently terminated her are now the subject of this lawsuit. Id . at 4. Alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., Wheatley contends that FCPO failed to accommodate her disability and discriminated against her because of her disability. See Complaint, d/e 1 ¶ 1. FCPO denies these allegations, and now moves for summary judgment. See Answer to Complaint, d/e 6; Mot., d/e 23.

In November 2008, Wheatley was a store manager at FCPO's Springfield, Illinois location when a family medical incident took her away from work for 19 days. See Mot., Ex. Q, d/e 23-1 at 51. Wheatley sought and was given 19 days of leave under FCPO's Family and Medical Leave Act (FMLA) policy, which provides employees with 12 weeks of paid leave in a rolling twelve-month period. See id. Wheatley returned to work after the 19 days expired, using 2.7 weeks out of her 12 weeks of FMLA leave.

In March 2009, Wheatley injured her foot and submitted a note to FCPO from her primary care physician, Dr. James A. Bohan, stating that she could return to work "without restrictions" on March 27, 2009. Mot., Ex. G, d/e 23-1 at 32. She returned to work on that date, resuming her duties as store manager. Mot., Ex. H, d/e 23-1 at 34. When she went home at the end of her shift, however, she "couldn't walk" and went to see Dr. Bohan again. Id . Dr. Bohan wrote another note stating that Wheatley should not work for one week and recommended that she see Dr. Karolyn Senica, an orthopedist. Mot., Ex. I, d/e 23-1 at 35.

On April 16, 2009, FCPO sent Wheatley a letter asking her to have her physician fill out a "Certification of Healthcare Provider for Employee's Serious Health Condition" and return it to FCPO within 15 days. Mot., Ex. N, d/e 23-1 at 41. An FMLA notice accompanying the letter stated that Wheatley had requested leave beginning on April 8, 2014, and that she had 9.3 of her 12 weeks of FMLA leave remaining. Id . at 42. FCPO also enclosed materials for applying for short-term disability benefits through Aetna Insurance. Id . at 41. The record does not indicate whether Wheatley sent FCPO the physician certification, but clearly Wheatley began using her remaining FMLA leave.

Wheatley then had a number of appointments with two different doctors. She first went to see Dr. Senica, the orthopedist, on April 28, 2009. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Resp."), Ex. 1, d/e 26-1 at 1. At that time, Dr. Senica told Wheatley that she should remain off work until further notice. Id .; Mot., Ex. J, d/e 23-1 at 36. Wheatley apparently met with Dr. Senica again on June 10, 2009, but the results of that visit are unclear. Resp., Ex. 1, d/e 26-1 at 1; Mot., Ex. K, d/e 23-1 at 37. With Wheatley's FMLA leave set to expire on June 13, 2009, FCPO granted Wheatley four additional weeks of leave, lasting until July 11, 2009. Mot., Ex. P, d/e 23-1 at 48-49. During this four-week extension, Wheatley sought a second opinion about her foot from Dr. Jeffrey Fleischli, a podiatrist, on June 17, 2009. Resp., Ex. 1, d/e 26-1 at 2. The record does not contain the results of that initial visit with Dr. Fleischli, but the record does show that Wheatley returned to Dr. Senica on June 22, 2009, and that Dr. Senica wrote Wheatley a note stating that she could return to work on July 6, 2009 "with no restrictions." Mot., Ex. L, d/e 23-1 at 38.

On July 1, 2009, Wheatley again met with Dr. Fleischli. Mot., Ex. S, d/e 23-1 at 59. In an Aetna Attending Physician Statement dated July 8, 2009, which appears to have been based on the results of Wheatley's June 17 and July 1 visits, Dr. Fleischli checked a box indicating that Wheatley had "No ability to work. Severe limitation of functional capacity; incapable of minimal activity." Mot., Ex. M, d/e 23-1 at 39-40. Under another section of the form titled "What medical restrictions/limitations are you placing on patient?, " Dr. Fleischli wrote "[i]mmobilization." Id . at 40. Dr. Fleischli noted on the form that Plaintiff would "need to be absent from work due to a disability beginning on July 1, 2009 and ending on August 15, 2009." Id . at 39. The form also indicated that Dr. Fleischli "prescribed [this] restriction on work activities" on July 1, 2009, that the "restrictions/limitations" would be in effect for six weeks, and that Dr. Fleischli estimated that Wheatley would return to work on August 15, 2009. Id . at 40. Lastly, in response to the question on the form "is your patient motivated to return to work?, " Dr. Fleischli wrote "yes." Id . at 40.

In an affidavit that Wheatley submitted in support of her response to FCPO's motion for summary judgment, Wheatley claims that during her July 1 visit with Dr. Fleischli, she asked him if she could return to work before her FMLA leave expired on July 11 because she did not want to lose her job. Resp., Ex. 1, d/e 26-1 at 2. According to Wheatley, Dr. Fleischli told her that she could return to work if her foot was immobilized in a boot. Id . After this visit, Wheatley called FCPO's Regional Resources Manager, Cheryl Cole. Id . The parties agree that during this conversation, Cole told Wheatley that her four-week extension would expire on July 11, 2009. See Mot., Ex. Q, d/e 23-1 at 50. Wheatley contends that she then informed Cole that Dr. Fleischli had told her that she would need to be off work for another two weeks, and Cole told her that she would be terminated if she could not return by July 11. Resp., Ex. 1, d/e 26-1 at 2. Wheatley claims that she then called her immediate supervisor, Foster Bliss, and told him that she would be able to return to work wearing a walking boot in two weeks, but that Bliss expressed doubt that such an accommodation would be allowed. Resp., Ex. 1, d/e 26-1 at 2.

On July 2, 2009, Cole sent Wheatley a "follow up" letter to their July 1 conversation. Mot., Ex. Q, d/e 23-1 at 50. In the letter, Cole reaffirmed her warning to Wheatley that if Wheatley could not return to work at the end of the four-week extension-on July 11, 2009-she would be terminated, though eligible for rehire. Reply to Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Reply"), Ex. A, d/e 27-1 at 1. This letter was accompanied by a Fitness for Duty Certification to be signed by a physician. Id . at 2. On the certification form is a handwritten note that says "Lora, Please have Dr. complete these forms for return to work. Thank you!" Id . The form has blank spaces for the physician to fill in that include the date the employee may return to work and whether the employee will have any work restrictions. If the physician notes that the associate will need restrictions, the physician is asked to "explain restrictions as they relate to time and duties." Id.

Wheatley received Cole's letter on July 6, 2009. Resp., Ex. 1, d/e 26-1 at 2. Wheatley claims that after receiving the letter, she called an organization called Great Lakes ADA Center, and a representative named Peter advised her that she should ask FCPO if she could have a further extension of her leave or return to work with a walking boot. Id . at 3. The next day, July 7, Wheatley called Cole and informed her that Dr. Fleischli had told Wheatley that she could return to work wearing a walking boot, but that Cole then told her that would not be possible because Wheatley needed to be able to climb on a ladder to do her job. Id . at 4.

Wheatley does not dispute that after talking to Cole, she did not return the certification form or provide any other written documentation to support her claim that she was released to work in July of 2009. See Mot., Ex. R, d/e 23-1 at 56. Rather, she claims that Cole made it clear that FCPO would not allow her to return to work with a walking boot, so she felt it would be pointless to return written documentation from Dr. Fleischli, who had advised her that she would need to wear the boot to go to work. Resp., Ex. 1, d/e 26-1 at 5. Since Wheatley felt that FCPO would not allow her to return to work with the boot, she contacted Dr. Fleischli on July 8, 2009 and asked him to prepare the Aetna Attending Physician Statement discussed above so that she could apply for disability benefits. Id.

On August 8, 2009, Aetna sent Wheatley a letter regarding her application for long-term disability benefits. Mot., Ex. D, d/e 23-1 at 24-25. The letter stated that Aetna concluded that Wheatley was "unable to perform the material duties of [her] own occupation" and found her "totally disabled from [her] own occupation." Id . at 24. Aetna stated it would issue Wheatley an initial benefit payment for the "period July 7, 2009 through July 31, 2009, " and that the benefits would last for 24 months from July 7, 2009. Id . Although the letter ...


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