United States District Court, N.D. Illinois, Eastern Division
Venegas, Plaintiff, represented by Michael Louis Fradin,
Michael L. Fradin, Attorney at Law.
Aerotek, Inc., Defendant, represented by William Eugene
Corum, Husch Blackwell LLP, Douglas F. McMeyer, Chapman
Spingola, LLP, Jennifer L. Dlugosz, Husch Blackwell LLP &
Robert Anthony Costello, Husch Blackwell Llp.
Aerotek, Inc., ThirdParty Plaintiff, represented by William
Eugene Corum, Husch Blackwell LLP, Douglas F. McMeyer,
Chapman Spingola, LLP, Jennifer L. Dlugosz, Husch Blackwell
LLP & Robert Anthony Costello, Husch Blackwell Llp.
Navistar Defense, LLC, Third Party Defendant, represented by
Michelle Teresa Olson, Vedder Price, P.c. & Thomas Michael
Wilde, Vedder Price P.C..
MEMORANDUM OPINION AND ORDER
W. GETTLEMAN, District Judge.
Juana Venegas, sued her former employer Aerotek, Inc. and its
client, Navistar Defense, LLC alleging: violations of the
Family and Medical Leave Act ("FMLA") 29 U.S.C. §
2601 et seq. against Aerotek (Counts I and II); pregnancy
discrimination, employment agency discrimination, and failure
to accommodate pregnancy under the Illinois Human Rights Act
("IHRA") 775 ILCS 5/2-102 et seq. against Aerotek
and Navistar (Counts III, IV, V, and VI); promissory estoppel
against Aerotek and Navistar (Count VII); breach of contract
against Aerotek (Count VIII); negligent infliction of
emotional distress against Navistar (Count IX); and tortious
interference with contract against Navistar (Count X).
settled with and dismissed with prejudice all claims against
Navistar. Aerotek moved for summary judgment on all counts.
On March 22, 2016, the court granted Aerotek's motion for
summary judgment on all counts, except for Count I (FMLA
interference). Venegas v. Aerotek, Inc., 2016 WL 1106861
(N.D. Ill. 2016). The court denied Aerotek's motion as to
Count I because it had concluded that there was a genuine
issue of material fact as to whether Aerotek had denied
plaintiff benefits to which she was entitled.
has moved for reconsideration of this portion of the
court's decision. Plaintiff objects to Aerotek's
motion and moves for entry of judgment on Count I, or in the
alternative, leave to file a motion for summary judgment. For
the reasons explained below, Aerotek's motion to
reconsider is granted on other grounds and plaintiff's
motion is denied.
court may revise any judgment that does not adjudicate all of
the claims and all of the parties' rights and
liabilities. Fed.R.Civ.P. 54(b). A motion to reconsider may
not introduce new issues or re-try arguments previously
rejected. Lock Realty Corp. IX v. U.S. Health, LP, 2010 WL
148296, at *1 (N.D. Ind. 2010), aff'd, 707 F.3d 764 (7th
motion to reconsider relies on the mistaken belief that the
court found "that it is undisputed that Aerotek did not
terminate Plaintiff." Based on this mistaken reading,
Aerotek argues that because it did not terminate plaintiff,
it cannot have interfered with her FMLA rights. The court,
however, never reached this conclusion. Instead, the court
found that Navistar alone made the decision to end
plaintiff's assignment at Navistar, and that Aerotek did
not participate in that decision. Because plaintiff's
employment by Aerotek depended on her continued assignment at
Navistar, Aerotek subsequently terminated plaintiff's
employment. It did so after she had requested FMLA paperwork.
Consequently, Aerotek's interpretation of the court's
opinion is wrong. In fact, the opinion states that
"[t]here is no dispute that Aerotek terminated
plaintiff." Venegas, 2016 WL 1106861, at *6.
is correct, however, that Navistar's termination of
plaintiff's Navistar assignment means that plaintiff
cannot sustain an interference claim against Aerotek based on
Aerotek's termination of her employment. Her employment
term ended when Navistar decided to end her assignment. An
employee is not entitled to any "right, benefit, or
position of employment... if she would have been fired
regardless of whether she took [FMLA leave]."
Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993
(7th Cir. 2010) (citing 29 U.S.C. § 2614(a)(3)(B) & 29 C.F.R.
§ 825.216(a)). This also applies to FMLA leave requests.
Ransel v. CRST Lincoln Sales, Inc., 2014 WL 1207432, at *4
(N.D. Ind. 2014) (holding that "the FMLA does not
guarantee continued employment where an individual would have
been fired regardless of their request for FMLA leave."
(citing Goelzer, 604 F.3d at 993)).
the Department of Labor's regulations interpreting the
FMLA provide three non-exhaustive examples of when an
employer may properly terminate an employee without violating
the FMLA, even though the employee is engaged in the FMLA
process. 29 C.F.R. § 825.216(a). Two of these examples are
directly relevant to the instant case. First, 29 C.F.R. §
If an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer's
responsibility to continue FMLA leave, maintain group health
plan benefits and restore the employee cease at the time the
employee is laid off, provided the employer has no continuing
obligations under a collective bargaining agreement or
otherwise. An employer would have the burden of proving that
an employee would have been laid off during the FMLA leave
period and, therefore, would not be entitled to restoration.
and more akin to the instant case, "[i]f an employee was
hired for a specific term or only to perform work on a
discrete project, the employer has no obligation to restore
the employee if the employment term or project is over and
the employer would not ...