United States District Court, C.D. Illinois, Peoria Division
DARROW UNITED STATES DISTRICT JUDGE
Kenneth Rutherford filed suit against Defendant Peoria Public
Schools District 150 ("the District"), alleging a
violation of the Family and Medical Leave Act of 1993
("FMLA" or "the Act"). Before the Court
are Plaintiffs Motion for Partial Summary Judgment, ECF No.
19, and Defendant's Motion for Summary Judgment, ECF No.
For the following reasons, Plaintiffs motion is GRANTED and
Defendant's motion is DENIED.
November 24, 2010, Kenneth Rutherford sustained injuries to
his neck, back, and Achilles tendon when a painting scaffold
fell and landed on him while he was working. Rutherford, then
the head custodian at Lincoln Middle School in the District,
reported the incident to his supervisor, Dave Meyers. Meyers
instructed Rutherford to attend an evaluation at the Illinois
Work Injury Resource Center ("1WLRC"), which is the
District's preferred health care provider for employee
medical evaluations. Pl.'s UMF ¶ 51. Dr. Hauter at
IWIRC released Rutherford without restriction. Nov. 24, 2010
IWIRC Visit Note, ECF No. 35. However, Rutherford
subsequently developed back pain and began to attend various
chiropractic and physical therapy sessions. In January 2011,
Rutherford saw Dr. Richard Kube, who found that Rutherford
had degenerative changes in his spine, and prescribed an
epidural injection and additional physical therapy. Pl.'s
Aff ¶ 12, ECF No. 20-1.
March 15, 2011, Dr. Kube restricted Rutherford to sedentary
activity. Mar. 15, 2011 Work Status Sheet, ECF No. 20-3 at
58. On March 29, 2011, Dr. Kube gave Rutherford a work status
sheet that diagnosed Rutherford with lumbago. Mar. 29, 2011
Work Status Sheet, ECF No. 20-3 at 59. Dr. Kube checked a box
indicating that Rutherford could safely perform at a
"Moderate Activity" level, specifying that he could
"frequently lift 35 [pounds] and limited lifting 50
[pounds], occasional overhead and floor to waist, occasional
bending and twisting as well as prolonged sitting or
standing." Id. Rutherford continued working
normally until March 31, 2011, when he delivered Dr.
Kube's note detailing these new restrictions to Meyers.
Def's UMF ¶ 41. Notably, at all relevant times,
Rutherford's custodial position required that he be able
to lift at least 50 pounds. Custodian Qualifications, ECF No.
29 at 4; Pl.'s Resp. UMF ¶ 2. Meyers told Rutherford
that he could not work for the District until he was released
to work without any restrictions. Pl.'s UMF ¶ 76.
for handling FMLA issues belonged to the District's Human
Resources department. Pl.'s UMF ¶ 33. From 2010
until June 30, 2012, Teri Dunn was the Director of Human
Resources for the District. Pl.'s Resp. UMF ¶ 13.
Gerilyn Hammer served as Director of Employee Services
starting in 2004, and in September 2012, upon Dunn's
retirement, took over the Director of Human Resources
position. Id. at ¶ 12, 25. At all relevant
times, Janet Ogden was one of five Human Resources
Specialists supervised by Dunn, and was assigned custodians
as an employee group. Id. at ¶ 19-21. Cheryl
Stenstrom, of Sedgwick Claims, was a third-party
administrator of Worker's Compensation Claims for the
District. Id. at¶30. When Dunn's tenure
began in the Human Resources department, the District did not
have a system for coordinating absence notifications between
an employee's supervisor or payroll, and Human Resources,
for the purposes of assessing eligibility for FMLA or other
alternative leave absence. Def's UMF ¶ 16. The
default status was sick leave. Id. The District did
not provide Rutherford with any leave designation notices or
notices of fitness-for-duty requirements. Def's Resp.
Requests to Admit ¶¶ 31, 33, ECF No. 20-3 at 43-44;
Def's Mem. Opp. Pl.'s Mot. Summ. J 41, ECF No. 78.
Both parties agree that Rutherford's FMLA leave, had it
been designated, would have begun on April 1, 2011 and ended
on June 23, 2011. Pl.'s Resp. UMF ¶ 51. In her
deposition, Dunn stated that Rutherford's leave was
treated as if it were designated as FMLA leave. Dunn Dep.
63:14-16, ECF No. 32.
31, 2011, Rutherford again met with Dr. Kube, who indicated
in a separate work status sheet that Rutherford could lift
"50-100 [pounds] max." May 31, 2011 Work Status
Sheet, ECF No. 20-3 at 61. Rutherford had also been cleared
for full duty with the ability to lift over fifty pounds in a
separate Functional Capacity Evaluation on May 24, 2011. FCE
Report, ECF No. 20-3 at 117-18. Rutherford represents that on
June 2, 2011, he gave Dr. Kube's note to both Meyers and
the District's Human Resources office-specifically, that
he handed the note to Janet Ogden and Meyers' secretary
and said that he was turning in his paperwork and was ready
to return to work. Pl.'s Dep. 47:4-12; 47:23-48:11, ECF
No. 24. The District disputes this because Ogden did not
recall when she spoke with Rutherford. Ogden Dep.
36:5-17, ECF No. 33. Rutherford also claims to have made
numerous phone calls to the District in June and July 2011,
seeking to be returned to work. Pl.'s Dep. 57-58.
Additionally, Rutherford contacted his union steward to tell
him that he wished to return to work. Id. 50:8-23.
On July 20, 2011, Rutherford filed a union grievance directly
with Meyers, expressing his desire to return to work.
Grievance, ECF No. 48.
emailed Ogden and Hammer on August 9, 2011 to direct Ogden to
schedule a fitness-for-duty evaluation. ECF No. 55.
Rutherford met with Dr. Dru Hauter on August 18, 2011. Aug.
18, 2011 IWIRC Report, ECF No. 56. No functional capacity
test was performed, which Dr. Hauter attributed to
Rutherford's "pain" on his report. Id.
Dr. Hauter found that Rutherford should be limited to a
fifty-pound maximum, and was "not safe to return to
work" without modifications. Id. Rutherford
attended a third full medical evaluation on September 8,
2011. Rutherford Aff ¶ 20. Dr. Gunnar Andersson
concluded that Rutherford was "capable of working
without restrictions." Dr. Andersson Independent Medical
Examination, ECF No. 58.Hammer received the results of Dr.
Andersson's examination by email on September 29 and 30,
2011.Def.'s UMF ¶ 70.
27, 2012, Rutherford sent an email to the District's
Human Resources department stating, "It has been a year
since my release [from my doctor's restrictions] and I
haven't received any correspondence from the district as
to when I can return to work. Please let me know if
there's anything you need from me as I am eagerly
awaiting my return to work date." Jun. 27, 2012
Pl.'s Email to Dunn and Ogden, ECF No. 67. There is no
evidence that the District ever responded to that email or
Rutherford's July 17, 2012 follow-up email.
January 2013, Ogden noted that Rutherford stopped by the
Human Resources office on January 11, 2013 and inquired about
returning to work. Ogden Dep. 37:12-17; Ogden Dep. Ex. 32,
ECF No. 20-2 at 614. Dunn advised Ogden not to speak to him
because he had an attorney. Id. Hammer and Ogden
discussed Rutherford's employment status via email on
April 23, 2013. Hammer Dep. 67:22-68:10, ECF No. 31. Hammer
described his status as she understood it at that point in
time as "still qualified as an employee but. . . never
terminated . . . with a board action." Id. at
68. She stated in her deposition that she did not know why he
had not been brought back to work at that point. Id.
Nor did she direct any of the human resource specialists to
inquire further into why Rutherford had not returned to work.
Id. at 70:22-71:8. On July 18, 2013, Rutherford sent
another email to the District seeking reinstatement. Hammer
Ltr to Pl., ECF No. 20-3 at 27. In a letter sent on July 30,
2013,  Hammer responded, "It is the
District's position that you abandoned your job, because
you failed to contact the District in a reasonably timely
manner regarding any request to return to work."
Id. Rutherford was officially released effective
July 13, 2013 at the August 12, 2013 school board meeting.
School Board Proceedings, ECF No. 20-4 at 82.
now brings the instant claim for interference under the FMLA,
seeking an injunction reinstating him to his former position
as well as damages, liquidated damages, prejudgment
interests, costs, and attorneys' fees. Compl. ¶ 72,
ECF No. 1.
argues that the District violated his rights under the FMLA
by failing to provide required notices, failing to reinstate
him to his former position as early as June 2, 2011, and
forcing him to take more leave than was
necessary. Pl.'s Mem. Supp. 32-43. The District
argues, as a threshold matter, that Rutherford's claim is
untimely. Def's Mem. Supp. Mot. Summ. J. ("Def's
Mem. Supp.") 22-24, ECF No. 22. The District further
argues that Rutherford was not able to perform the essential
functions of his job, and was therefore not entitled to
reinstatement, id. 24-30; it finally claims that
Rutherford was not prejudiced by the District's failure
to designate his leave as FMLA leave because of other
benefits he was provided, id. 31.
Legal Standard on a Motion for Summary Judgment
summary judgment stage the court's function is not
"to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
trial[- that is, whether] there is sufficient evidence
favoring the non-moving party for a jury to return a
verdict" in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986); Patel v. Allstate
Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997). The court
must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in that
party's favor. McCann v. Iroquois Mem'l
Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing
Anderson, 477 U.S. at 255).
both parties file motions for summary judgment, the court
must look to the burden of proof that each party would bear
on the issue at trial. Santaella v. Metro. Life Ins.
Co., 123 F.3d 456, 461 (7th Cir. 1997). Each party must
"go beyond the pleadings and affirmatively . . .
establish a genuine issue of material fact."
Id. Cross-motions are reviewed "construing all
facts, and drawing all reasonable inferences from those
facts, in favor of the non-moving party." Laskin v.
Siegel, 728 F.3d 731, 734 (7th Cir. 2013) (quoting
Wis. Cent, Ltd. v. Shannon, 539 F.3d 751, 756 (7th