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Ricco v. Southwest Surgery Center, LLC

United States District Court, N.D. Illinois, Eastern Division

November 14, 2014

DIANA RICCO, Plaintiff,
v.
SOUTHWEST SURGERY CENTER, LLC d/b/a CENTER FOR MINIMALLY INVASIVE SURGERY and MICHAEL CHERNY, individually, Defendants

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For Diana Ricco, Plaintiff: Margherita Maria Albarello, LEAD ATTORNEY, DiMonte & Lizak, Park Ridge, IL.

For Michael Cherny, individually, Southwest Surgery Center, LLC, doing business as Center for Minimally Invasive Surgery, Defendants: Christopher G. Ward, LEAD ATTORNEY, Foley & Lardner, Chicago, IL; John Louis Litchfield, Foley & Lardner Llp, Chicago, IL.

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MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, United States District Judge.

Plaintiff filed a five-count Complaint, alleging two Family and Medical Leave Act (" FMLA" ) claims against Southwest Surgery Center (" Southwest" ) and Michael Cherny (" Cherny" ) individually: Count I is an FMLA interference claim, and Count II is an FMLA retaliation claim. Plaintiff also alleges two state law claims against Surgery Center: Count III is a breach of contract claim, and Count IV is a promissory estoppel claim. Finally, Count V alleges tortious interference with employment expectancy against Cherny. On August 15, 2014, Defendants filed a Motion for Summary Judgment on all counts. For the reasons stated below, Defendants' Motion for Summary Judgment is denied.

LOCAL RULE 56.1

Local Rule 56.1(a)(3) requires the moving party to provide " a statement of material facts as to which the party contends there is no genuine issue for trial." Ammons v. Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires the non-moving party to admit or deny every factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that " require the denial of summary judgment. Local Rule 56.1(b)(3)(C) further permits the nonmovant to submit a statement " of any additional facts that require the denial of summary judgment . . . ." To the extent that a response to a statement of material fact provides only extraneous or argumentative information, this response will not constitute a proper denial of the fact, and the fact is admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise unsupported statement,

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including a fact that relies upon inadmissible hearsay, such a fact is disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997).

BACKGROUND

Plaintiff began working in a full-time capacity for Defendants in January of 2011 as a pre-admission registered nurse. (Compl. ¶ 8.) On April 16, 2013, Plaintiff was absent from work and called Defendants to advise that she would not be at work due to illness. ( Id. at ¶ 10.) Plaintiff also faxed a note from Dr. Papadopolous, stating that she was under the doctor's care, was seen in his office on April 16, 2013, that she was to be excused from work until April 26, 2013, and that she was to be reevaluated. ( Id. at ¶ 10.) On April 25, 2013, Plaintiff faxed Defendants another note from Dr. Papadopolous, stating that she was under the doctor's care, was seen in his office on April 25, 2013, that she was to be excused from work until May 4, 2013, and that she was to be reevaluated. ( Id. at ¶ 11.) On May 6, 2013, Plaintiff faxed Defendants another note from Dr. Papadopolous, stating that she was under the doctor's care, was seen in his office on May 6, 2013, that she was to be excused from work until May 13, 2013, and that she was to be reevaluated. ( Id. at ¶ 12.)

Plaintiff received a letter, dated May 8, 2013, from Cherny. ( Id. at ¶ 13.) This letter contained an acknowledgement of Plaintiff's doctor's notes. ( Id. at ¶ 13.) The letter requested that Plaintiff provide information regarding her medical condition by her next appointment on May 13, 2013, and that information could be used " to explore your circumstances to potentially identify solutions for your possible return to work." ( Id. at ¶ 13.) On May 11, 2013, Plaintiff faxed Cherny a letter, stating that she was seeing Dr. Papadopolous on May 13, 2013, and that she would have him send Cherny the requested information. ( Id. at ¶ 14.) On May 13, 2013, Plaintiff faxed a note from Dr. Papadopolous, which stated that Plaintiff has sciatica, stress, and anxiety, requiring continued medical leave until May 23, 2012. ( Id. at ¶ 15.) The fax also contained a request that Defendants send FMLA papers for Dr. Papadopolous to complete. ( Id. at ¶ 15.) Defendants terminated Plaintiff via a letter, dated May 16, 2013. ( Id. at ¶ ¶ 17, 18.)

On October 31, 2013, Plaintiff filed a five-count Complaint against Defendants. On August 15, 2014, Defendants filed a Motion for Summary Judgment on all counts.

LEGAL STANDARD

Summary judgment is proper if there is " no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012). The facts, and all reasonable inferences drawn from them, must be viewed in the light most favorable to the non-moving party. Reget v. La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). The non-moving party is given " the benefit of the doubt" only when the record reflects adequate evidence on both sides of a factual issue. Tri-Gen Inc. v. Int'l Union of Operating Eng'rs, Local 150, AFL-CIO, 433 F.3d 1024, 1030 (7th Cir. 2006) (citing Patel v. Allstate Ins. Co., 105 F.3d 365, 367 (7th Cir. 1997). At the summary judgment stage, the court may not " make credibility determinations or weigh the evidence." Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 505 (7th Cir. 2010).

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Seng- Tiong Ho v. Taflove, 648 F.3d 489, 496 (7th Cir. 2011). ...


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