United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge.
Brenda Kemp, brought this action against Cook County, the
Office of the Chief Judge of the Circuit Court of Cook
County, the Office of the Transitional Administrator, Earl
Dunlap, and Philippe Magloire, alleging that the defendants
retaliated against her in violation of the Family Medical
Leave Act, discriminated against her based on her age in
violation of the Equal Protection Clause, and violated her
due process rights. The defendants now move for summary
judgment. For the reasons set forth herein, that motion 
following facts are undisputed. The Cook County Juvenile
Temporary Detention Center provides temporary secure housing
for youths 10-16 years of age who are in custody pending the
adjudication of their cases. At the times relevant to this
suit the plaintiff, Brenda Kemp, was the JTDC's
Commissary Manager. (Dkt. 60 ¶ 2). Her direct supervisor
was JTDC Deputy Executive Director Philippe Magloire. (Dkt.
53 ¶ 27).
1999, a civil suit was filed in this district challenging the
constitutionality of the conditions of confinement in the
JTDC. A Memorandum of Agreement was executed in that suit,
and a transitional administrator was appointed to implement
that agreement. Doe v. Cook County, 99 C 3945, dkts.
67, 330 (N.D. Ill.). At the times relevant here, Earl Dunlap
was the transitional administrator of the JTDC. Id.
Bruce Burger was the deputy transitional administrator
responsible for personnel. (Dkt. 53, ¶ 17). Louise
Akins, a labor relations analyst at the JTDC, was responsible
for scheduling predisciplinary and grievance hearings and
processing background documents. (Dkt. 49-7 10:10-11:6).
Cook County Juvenile Temporary Detention Center
(“JTDC”) contains one kitchen and 30 living
units, some of which have commissaries. (Dkt. 60, ¶ 8).
Kemp was initially hired by the JTDC in 1992 as a
“Dietician 3, ” a supervisory role responsible
for managing food services in the JTDC. (Id. ¶
9). In that role, Kemp oversaw intermediate supervisors,
cooks, food service workers, and janitors. (Id.).
Dunlap became the transitional administrator, he was placed
in charge of all management, personnel, purchasing, food,
laundry, and programmatic functions of the JTDC and was
granted the power to establish personnel policies; to create,
abolish, or transfer positions; and to hire, fire, promote,
transfer, and evaluate the management and staff of the JTDC.
(Dkt. 53 ¶¶ 13- 14). Dunlap established
disciplinary procedures through which a supervisor or deputy
with a personnel issue could refer that issue to deputy
transitional administrator Burger, who would conduct an
investigation, have a pre-disciplinary hearing with both
parties present, and report his findings to Dunlap for
approval or denial. (Id. ¶ 20).
Dunlap took over the JTDC the Food Services Department had
two managers, Kemp and “Ms. K.”. (Id.
¶ 22). In 2008 Dunlap temporarily relieved Kemp of her
duties as Manager of Food Services, citing unacceptable work
performance and her participation in creating a hostile work
environment. (Id. ¶ 23). Rather than firing or
demoting Kemp, Dunlap instead created the position of
Commissary Manager for Kemp. (Id. ¶ 25, dkt. 60
¶ 2). As the Commissary Manager, Kemp was responsible
for ordering, receiving, managing, and distributing
commissary inventory and for cost reconciliation. (Dkt. 60
Magloire became Kemp's direct supervisor when food
services were added to his areas of responsibility. (Dkt. 53
¶ 27). Kemp alleges that Magloire was rude to her and
“screamed” at her about her work performance and
cleanliness on multiple occasions. (Id. ¶¶
32-33). On November 20, 2012, Magloire inspected the
commissary storage cages and found expired food products.
(Id. ¶ 28). He directed Kemp to ensure that
commissary items were consumed prior to their expiration
dates. (Id.). On November 23, 2012 Magloire and
another supervisor conducted a performance evaluation of
Kemp. (Id. ¶ 31). The evaluation concluded that
Kemp met standards, but noted that Kemp's storage areas
needed to be maintained, cleaned, and organized; that food
products with upcoming expiration dates needed to be rotated;
and that expired items needed to be disposed of immediately.
(Id.). It further noted that Kemp needed to develop
a system to accurately track the commissary items that each
center was receiving. (Id.). On June 13, 2013,
Magloire conducted another inspection of the commissary
storage cages and found a large number of expired products,
some of which had expired in 2012. (Id. ¶ 35).
As a result of this discovery, Magloire recommended that Kemp
be referred to the Office of Government and Labor Relations
so that a pre-disciplinary hearing could be scheduled.
(Id. ¶ 36, dkt. 53 ¶ 20).
Akins provided Kemp and Magloire notice of the date, time,
and location of the hearing. (Id.) She also put
together a pre-disciplinary packet containing the violated
policy provisions, Magloire's narrative, and Kemp's
prior disciplinary record. (Id.) Kemp's
disciplinary record reflected that she had received a written
reprimand in 1992. (Id. ¶ 45). It also reported
a twenty-nine day suspension in 2005, despite that suspension
having been subsequently overruled by the Cook County
Employees Appeals Board and ordered removed from Kemp's
personal record. (Id. ¶ 37).
23, 2013, Burger held the hearing with Kemp and Magloire. At
the hearing, Kemp admitted her guilt based on Louise
Akins' advice that if she did so she would only receive a
few days suspension. (Id. ¶ 41, dkt. 53 ¶
22). Kemp did testify, however, that she had to miss work
because her husband had been ill, resulting in inventory
issues because she was having to “play catch up”.
(Dkt. 53, ¶ 43). No one brought up the Family Medical
Leave Act during the pre-disciplinary hearing. (Id.
the hearing, Burger recommended terminating Kemp's
employment based on her violation of her duty to protect the
children at the JTDC. (Id. ¶ 44). Burger did
not know that Kemp had been on FMLA leave, and he
subsequently testified that Kemp's age and use of the
FMLA did not have any bearing on his decision regarding her
termination. (Id. ¶ 46). He also testified that
if Kemp's disciplinary record had only contained the 1992
reprimand he would probably have recommended her suspension
rather than her discharge. (Id. ¶ 45). Burger
provided Dunlap with his recommendation and findings. Dunlap
considered them and terminated Kemp's employment.
(Id. ¶ 47). Dunlap subsequently stated that he
concurred with Burger's recommendation because he
believed the expired food to be a safety issue and felt that
Kemp had acted negligently and failed to take responsibility
for her duties. (Id. ¶ 54). Burger later
learned from another employee that Kemp's suspension had
been overturned and requested, but never received, a copy of
the decision overturning the suspension. (Id. ¶
48). Kemp also learned from her coworkers that her overturned
suspension had been included in her disciplinary record.
(Id. ¶ 49). Although an employee can overturn a
disciplinary decision by filing a grievance or a judicial
appeal, Kemp did not file a grievance or appeal her
her termination, Kemp saw her position posted on
CareerBuilder with a salary of $45, 000, $30, 000 less than
she had earned. (Id. ¶ 57). Other employees
told her that the JTDC had decided to make a budget cut and
that it wouldn't “bring her back.”
(Id.). Kemp also heard that the 31-year-old employee
who replaced her had fewer responsibilities as Commissary
Manager. (Id. ¶ 58; dkt. 60 ¶ 25).
admits that she was never denied FMLA leave and that she
never complained about being denied FMLA leave. (Dkt. 53
¶ 59). Kemp believes, however, that she was dismissed
because her attendance was inconsistent and because she was
unable to fulfill her duties as a result of her frequent
leaves. (Id.). Before taking FMLA leave, Kemp would
call, e-mail, or meet with Magloire to notify him that she
was taking leave. (Dkt. 53 ¶ 18). All management-level