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Yolich v. Financial Management Systems, Inc.

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

March 30, 2017

JAMES A. YOLICH, Plaintiff,


          Samuel Der-Yeghiayan United States District Court Judge.

         This matter is before the court on Defendant Financial Management Systems, Inc.'s (FMS) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.


         Plaintiff James Yolich (Yolich) allegedly began working for FMS in May 2014. In July 2015, Yolich allegedly underwent surgery and took an extended absence from work. In September 2015, Yolich allegedly received a termination letter indicating that he had missed too many days of work and that since he had not returned to work his employment was being terminated. FMS contends that Yolich failed to inform anyone at FMS that he was going to take an extended leave of absence and that despite extensive efforts to contact him, he failed to respond and explain his disappearance from work. Yolich includes in his complaint a claim alleging interference with the exercise of his rights under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (FMLA) (Count I), and a FMLA retaliation claim (Count II). Defendants now move for summary judgment.


         Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000)


         Under the FMLA, an employee is entitled "to twelve weeks of leave every twelve-month period if []he is afflicted with 'a serious health condition' which renders h[im] unable to perform h[is] job." Smith v. Hope Sck, 560 F.3d 694, 699 (7th Cir. 2009). FMS contends that before Yolich took his medical leave, Yolich indicated only that he might be out for a few days due to a medical procedure. According to FMS, Yolich never returned the necessary paperwork or medical certification that was provided to him in person when his FMLA rights were explained to him. FMS contends that despite mailing Yolich additional copies of the necessary paperwork and attempting to contact him on several occasions, Yolich failed to provide FMS with an update on his health status. FMS contends that it had no alternative but to terminate his employment due to his unexplained absences.

         I. Interference Claim (Count I)

         FMS moves for summary judgment on the FMLA interference claim. For a FMLA interference claim, a plaintiff must establish: (1) that he "was eligible for FMLA protection, " (2) that his "employer was covered by the FMLA, " (3) that he "was entitled to FMLA leave, " (4) that he "provided sufficient notice of h[is] intent to take leave, " and (5) that his "employer denied h[im] benefits to which []he was entitled." Id. FMS argues that Yolich did not provide sufficient notice to FMS of his intended FMLA leave and that Yolich was not entitled to FMLA leave since he failed to submit the appropriate paper work for such leave.

         It is undisputed, pursuant to Local Rule 56.1, that in July 2015, Yolich told his supervisor that he was going to be absent from work for a medical procedure, and that his supervisor told him to go to the Human Resources Department (HR) and apply for FMLA leave if he would be out for more than a couple of days. (RSF Par. 18). It is also undisputed that Yolich had previously supervised over 200 employees in his prior jobs. (RSF Par. 4). Yolich thus should have been familiar with dealing with employee absences. It is undisputed that Nolan Lewitzke (Lewitzke) was in charge of the FMLA administration at FMS. (RSF Par. 20). Lewitzke contends that on July 15, 2015 he prepared a letter to Yolich, including a FMLA Designation Form WH-381 and FMLA Certification Form WH-380E. (SF Par. 22). Yolich disputes this fact but offers nothing other than his own personal speculation that no such letter or forms were prepared. (RSF Par. 22). Lewitzke contends that on that same day, he handed Yolich the letter and FMLA forms and discussed with Yolich his FMLA rights. (SF Par. 23). Yolich disputes these facts asserting that FMS has not produced any email or text evidence confirming that such a meeting occurred. (RSF Par. 23). FMS provided citations to the record to support its facts in Paragraph 23, and the mere absence of certain other opposing evidence that Yolich may desire is not a proper basis to dispute a fact. Pursuant to Local Rule 56.1 the facts are thus admitted. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)(stating that "a district court is entitled to expect strict compliance with Rule 56.1"); Moore-Fotso v. Bd. of Editc. of the City of Chicago, 2016 WL 5476235, at * 1 (N.D. 111. 2016)(indicating that argumentative, vague, evasive, and ambiguous responses are not sufficient to render a fact disputed under Local Rule 56.1); Jankovich v. Exelon Corp., 2003 WL 260714, at *5 (N.D. Ill. 2003)(same). Evasive responses such as the one provided by Yolich are also deemed admissions under Local Rule 56.1.

         The court notes that even if the court accepts Yolich's assertions in this matter, for the purposes of the motion for summary judgment, regarding the meeting with Lewitzke, the result in this case is the same. Although pursuant to Local Rule 56.1 it is undisputed that Yolich's supervisor told him to go to HR and apply for the FMLA leave, (RSF Par. 18), Yolich claims that he never did so. Yolich contends that he never met with Lewitzke on July 15, 2015 or received any letters. In addition, although Yolich vaguely recalls talking with a representative in the HR office area about his upcoming medical procedure, Yolich claims that the representative never raised the issue of FMLA leave and never mentioned the FMLA at all. (Y Dep. 41-42). When asked at his deposition why Lewitzke would lie about instructing Yolich about FMLA leave, Yolich could not think of any reason why Lewitzke would lie, and indicated he did not even know Lewitzke. (Y Dep. 48).

         FMS contends that after Yolich had disappeared from work for more than a few days, Lewitzke attempted to contact Yolich to inquire about his work status and FMLA paperwork but received no answer. (SF Par. 27). In response, Yolich merely responds, "objection" failing to state whether he considers the facts disputed or undisputed as he had done in response to other facts. Such an ambiguous response is deemed an admission pursuant to Local Rule 56.1. Yolich also responds by claiming that there is an absence of evidence confirming the communication by Lewitzke. Yolich claimed at his deposition that he could not recall any voicemail messages in August 2015 from anyone at FMS. (Y Dep. 85-86). FMS contends that on August 10, FMS called Yolich to discuss his FMLA leave and left a voicemail, but Yolich claims he cannot recall any such message. (SF Par. 32); (Y. Dep. 85-86). Lewitzke claims that on August 11, 2015, he prepared another letter to Yolich with the FMLA forms and mailed the letter to Yolich. (SF Par. 33). Yolich claims that he never received the letter. (RSF Par. 33). FMS contends that it then made phone calls to Yolich on August 12, 13, and 14, to discuss his FMLA leave, but that Yolich did not answer and his voicemail was full. (RSF Par. 36). Yolich disputes this fact, citing only page 86 of his deposition, but offers no contrary evidence other than his deposition testimony that he did not recall any contact by FMS or voicemail messages. (RSF Par. 36); (Y. Dep. 86). If, as FMS contends, Yolich did not answer his phone and his voicemail was full, there would not have been any messages or phone calls for Yolich to recall, and thus Yolich has not offered a proper basis to dispute Paragraph 36 of FMS's statement of material facts.

         Lewitzke contends that on August 14, 2015, he prepared yet another letter with the FMLA forms and sent it to Yolich via FedEx Overnight. (SF Par. 38). Yolich admits that the letter was mailed but contends that he never received the letter because it was not properly addressed. (RSF Par. 38). Yolich contends that his apartment number was not listed in the mailing address. (RSF Par. 40). FMS has provided a copy of the Confidential Personal Data Form provided to Yolich on which he wrote his address. The form contains no apartment number. Thus, FMS properly listed Yolich's address in the letter as it appeared on the form he completed. Yolich points to some other documents he prepared for FMS such as in regard to his 401(K) Plan in which he listed his apartment address. Nothing, however, required FMS to sift through every ...

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