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Freelain v. Village of Oak Park

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

November 3, 2016

Rasul Freelain, Plaintiff,
Village of Oak Park, a municipal corporation, Sergeant Dina Vardal, in her individual capacity, Defendants.


          Manish S. Shah United States District Judge

         Village of Oak Park Police Officer Rasul Freelain reported to his employer that he was sexually harassed and battered on separate occasions by Sergeant Dina Vardal. During the Village's investigation of both complaints, Freelain became anxious and stressed about his safety at work. He developed debilitating migraine headaches, which caused him to seek treatment and absences from work. Freelain believes the Village interfered with his efforts to take protected leave and that after Freelain took such leave, the Village retaliated and discriminated against him. Freelain brings claims against the Village for retaliation under the Family Medical Leave Act and the Americans with Disabilities Act, interference under the FMLA, and discrimination under the ADA. 29 U.S.C. § 2601-2654; 42 U.S.C. §§ 12101- 12213. The Village moves for summary judgment on each of those claims. For the following reasons, the Village's motion is granted.

         I. Legal Standards

         “Summary judgment is appropriate when no material fact is disputed and the moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014). In reviewing a motion for summary judgment, district courts must construe all facts and reasonable inferences in the non-moving party's favor. The non-moving party cannot defeat a motion for summary judgment by merely resting on its pleadings. Fed.R.Civ.P. 56(c)(1), (e). Instead, the non-moving party must cite to the record to show: “the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B).

         Local Rule 56.1 requires the movant to file a statement of undisputed facts and the non-movant to file a concise response, admitting or denying the facts by citing to admissible evidence in the record. N.D.Ill. L.R. 56.1(a)(3), (b)(3)(B). Facts are deemed admitted for purposes of the motion if the responding party does not controvert the fact by citing to admissible evidence. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citation omitted). Arguments included in the statement of undisputed facts or in the responses will be disregarded. The facts discussed below are undisputed either because they were affirmatively admitted by the responding party or because they were deemed undisputed in accordance with the local rule.[1]

         II. Background

         Freelain worked for the Village for over a decade. [128] ¶ 1.[2] In May 2012, Freelain reported to the Village's Human Resources director that Vardal sexually harassed him. [128] ¶ 4. The HR director notified Vardal of Freelain's accusation, that the Village would investigate the complaint, that she must limit her contact with him to essential police matters, and that any retaliation was prohibited. [142] ¶ 12. A few weeks later, Freelain made another report to the HR director; this time he complained that Vardal shoved him while he was on duty. [128] ¶ 6. Freelain believed that such conduct constituted felony criminal battery and he asked to file a police report about the incident. [128] ¶ 7.

         The Village hired an outside agency to investigate Freelain's complaints. [142] ¶ 13. Although the investigation concluded quickly, the Village did not share the results with Freelain until several months later. [142] ¶ 14. Eventually, the HR director informed Freelain that the investigation did not substantiate his sexual harassment complaint and that criminal battery charges would not be filed against Vardal. [128] ¶ 8. Freelain calls the investigation a sham. [128] ¶ 8.

         In July 2012, Freelain began experiencing migraine headaches. [128] ¶ 10. Several weeks later, Freelain notified the Village that he could not work his scheduled shift because he was sick, due to stress. [128] ¶ 11. The deputy chief and a sergeant signed off on a Medical Roll form for Freelain that stated: “Stress and severe headaches related to ongoing investigation.” [142] ¶ 3; [122-1] at 1. Four days later, Freelain informed the Village that he was suffering from stress and migraine headaches again, due to Vardal's continued presence at work; Freelain explained that he could not work his scheduled shift that night or the following two days. [128] ¶ 12. After Freelain's third consecutive absence from work, and pursuant to the Medical Roll policy regarding police officer absences, the Village sent him paperwork instructing him on how to request FMLA leave, if appropriate. [128] ¶ 13. Freelain told his immediate supervisor that he believed the sexual harassment and continued presence of Vardal caused his headaches and that he wanted his absences classified as arising from a work-related injury. [128] ¶ 15.

         The HR director sent Freelain a letter explaining that until Freelain submitted a medical certification form to establish his need for FMLA leave, his absences would be classified as “self sick” for payroll purposes. [128] ¶ 20.[3] This letter also explained that before Freelain could return to work, the Village required him to submit a note from his physician stating he was clear for work and to submit to a fitness for duty exam. [128] ¶ 20. Ten days later, Freelain's doctor submitted a FMLA “Certification of Health Care Provider” stating that Freelain had been suffering from headaches and that he required intermittent leave, approximately twice a week for two to three hours at a time due to his headaches. [128] ¶ 24. The HR director granted Freelain's request for intermittent leave as described by his doctor and he advised Freelain that the headache-related absences would be designated “FMLA self-sick” for payroll purposes. [128] ¶ 26.

         The police chief advised Freelain that his fitness for duty exam would occur with another doctor on October 2, 2012, and if necessary, on October 9, 2012, as well. [128] ¶ 31. One day later, Freelain provided a letter from his own doctor, releasing him to return to work. [128] ¶ 28. Freelain's doctor wrote that Freelain was currently “receiving counseling for stress precipitated by workplace problems involving a supervisor” and that “Mr. Freelain missed 14 days of work from August 21, 2012 to September 28, 2012. The causes of Mr. Freelain's absences from work were a combination of the headaches/sleep disorder and the workplace stressors.” [99-5] at 35.

         Freelain appeared for the fitness for duty exam on October 2 and 9, 2012, per the police chief's orders. [128] ¶ 32. Over one month later, Freelain expressed concern to the HR director that his leave was not being classified as administrative leave while he awaited the fitness for duty results. [128] ¶ 34. On November 13, 2012, the HR director received the results of the fitness for duty exam, which concluded that Freelain was fit to return to duty as a police office. [128] ¶ 32. Freelain returned to work that same week, [128] ¶ 37, but it took several additional weeks before the Village changed its classification of Freelain's absences to paid administrative leave (for the period of time when he waited for the fitness for duty results). [128] ¶ 38.

         In late December 2012, Freelain requested FMLA leave to care for his wife who had been diagnosed with breast cancer. [128] ¶ 39. He later provided the Certification of Health Care Provider form to the Village regarding his wife's illness and his need for leave to care for her. [128] ¶ 40. The Village informed Freelain that he had no remaining FMLA leave to care for his wife. [51] ¶ 41. Since he needed flexibility in his schedule in order to care for his wife, Freelain voluntarily stepped down from his detective position and returned to patrol, which increased the likelihood that Vardal would act as his immediate supervisor. [51] ¶ 10.

         Approximately one month later, the Village granted Freelain's request for FMLA leave to care for his wife. [128] ¶ 41. Due to the continuing issues with classifying Freelain's absences, Freelain ran out of FMLA leave again and had to return to work even though he needed to be at home caring for his wife. [51] ¶¶ 41- 42. Almost six weeks later, the Village granted Freelain's updated request to continue caring for his wife. [128] ¶ 42. Freelain says the Village did not respond to his request for a FMLA extension on a timely basis. [128] ¶ 45.

         Freelain filed a Charge of Discrimination with the EEOC, alleging sexual harassment, discrimination due to disability, and retaliation. [51] ¶ 43. Ultimately, Freelain was paid for all of the time he spent on FMLA leave. [128] ¶ 70. He was never demoted from his rank at the Village, despite his absences. [128] ¶ 57. In fact, his evaluation scores increased after his FMLA leave, [128] ¶ 79, and-as of the date of the motion for summary judgment-he was still employed with the Village as a police officer. [128] ¶ 1.

         III. Analysis

         A. FMLA and ADA Retaliation

         Both the FMLA and the ADA prohibit retaliation against employees who exercise rights under those statutes. 29 U.S.C. § 2615(a); 42 U.S.C. § 12203(a); Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 836 (7th Cir. 2014); Silk v. Bd. of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 710 (7th Cir. 2015). A retaliation claim under either statute requires proof of the employer's retaliatory intent. Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012); Burks v. Wis. DOT, 464 F.3d 744, 759 (7th Cir. 2006). To establish a prima facie case of retaliation, the employee must prove: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the two. Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir. 2012); Dickerson v. Bd. of Trs. of Comty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). A plaintiff may establish a prima facie case indirectly by demonstrating that he engaged in protected activity, suffered an adverse employment action, met his employer's legitimate expectations, and was treated less favorably than similarly situated employees who did not engage in protected activity. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). Whether proven directly or indirectly, the point is to ask whether a jury could infer retaliation. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 2016 WL 4411434 at *4 (7th Cir. 2016).

         Once the employee sets forth a prima facie case of retaliation, the employer may rebut the inference of retaliation by proffering a non-retaliatory reason for taking an adverse employment action against the employee. King v. Preferred Tech. Grp., 166 F.3d 887, 892 (7th Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973)). In turn, the employee may show the proffered reason is merely a pretext for retaliation. Id. To do so, the employee must prove not only that the justification was false, but also that the true reason for the adverse action was, in fact, retaliation. Id. at 893 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742 (1993)).

         Freelain engaged in statutorily protected activity by requesting FMLA leave and by filing charges with the EEOC. Nicholson, 690 F.3d at 828; Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 787 (7th Cir. 2007). His prima facie case of retaliation turns on whether the Village's actions were adverse employment decisions and whether they were caused by Freelain's protected activity (or otherwise driven by retaliatory animus).

         An employment action must be “materially” adverse. Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008); Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1115 (7th Cir. 2001). This is a fact-specific inquiry because the definition of an “adverse action” includes anything that would discourage a reasonable employee from exercising his rights, Breneisen, 512 F.3d at 979, but excludes the range of trivial actions that make an employee unhappy. Kersting, 250 F.3d at 1115. Typically, a materially adverse action is one that changes the terms and conditions of employment; for example, a termination, a demotion through a salary or a wage decrease, or a loss of title or benefits. Kersting, 250 F.3d at 1115 (quotation omitted); see also Crady v. Liberty Nat. Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). To satisfy this element, Freelain asserts that the Village: misclassified his leave from work; prevented his opportunity of secondary income and promotion; subjected him to investigations; refused his “light duty” request; denied his scheduling request; subjected him to a fitness for duty exam; delayed the grant of his FMLA time; and refused to permit him to sign a criminal or internal complaint.

         A “causal connection” exists where the employee can show that the employer would not have taken the adverse employment action but for the employee's protected activity. King, 166 F.3d at 892 (citing Johnson v. City of Fort Wayne, 91 F.3d 922, 938-39 (7th Cir. 1996)). A causal connection can be established by an admission of retaliation or by evidence from which a jury could infer retaliatory intent. Scruggs v. Carrier Corp., 688 F.3d 821, 827 (7th Cir. 2010) (quoting Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771 (7th Cir. 2008)).[4] For example, a reasonable jury could infer retaliatory intent from evidence that an employer treated an employee who engaged in a protected activity less favorably than a similarly situated employee who did not. Hull v. Stoughton Trailers, LLC., 445 F.3d 949, 951 (7th Cir. 2006).[5]

         For reasons discussed below, each of Freelain's complained-of actions do not support a retaliation claim under the FMLA or the ADA because they are not adverse employment actions and because there is no causal connection between the Village's decision to take these actions and Freelain's protected activity. Moreover, for many of the complained-of actions, the Village has proffered an explanation for its decision to act, and Freelain has not rebutted the explanation with evidence of pretext. As such, the Village is entitled to summary judgment on Freelain's FMLA and ADA retaliation claims.

         1. Misclassification of Leave

         Freelain argues that the Village repeatedly misclassified his absences as “self sick, ” causing him to lose his personal sick and/or vacation time. The Village acknowledges that it mistakenly classified some of Freelain's absences as “self sick, ” but also notes that it corrected these errors and that it paid Freelain for all of the time he spent on FMLA leave. [128] ¶ 70. Had the Village never corrected these errors, perhaps this would have amounted to an adverse action, but the Village's corrective action demonstrates that the terms and conditions of Freelain's employment were not affected. Freelain emphasizes that weeks passed by before the Village corrected the classifications, but he cites no authority that found a delayed remedy to constitute an adverse action, and he does not submit evidence or argument to suggest that he was not made whole for the delays. In this case, the delay was an inconvenience and a source of anxiety for Freelain, but it did not materially change ...

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