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

March 20, 2018




         Plaintiff Marilyn Mabins alleges that her former employer, Defendant AEP NVH OPCO, LLC (hereafter “AEP”), violated the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, when it fired her in early 2016. Defendant claims that Plaintiff did not provide the requisite notice of her eligibility for FMLA leave. The parties have filed cross motions for summary judgment, and a previously dismissed party (UGN, Inc.) has filed a motion for sanctions. Because genuine disputes remain as to whether Plaintiff provided sufficient notice of her eligibility for FMLA leave, both motions for summary judgment are denied. UGN's motion for sanctions is denied as well, because Plaintiff's now-withdrawn claims against UGN were not frivolous, and because there is no evidence that Plaintiff named UGN as a defendant for an improper purpose.


         Marilyn Mabins has had a close relationship with her grandmother for her entire life. Marilyn and her mother lived with Marilyn's grandmother in Chicago until Marilyn was in the fifth grade. (Pl.'s Statement of Material Facts (hereafter “PSOF”) [73], at ¶ 12; Dep. of Marilyn Mabins (hereafter “Mabins Dep.”) 42-43, Ex. A to Def.'s Statement of Undisputed Material Facts (hereafter “DSOF”) [69].) Marilyn and her mother then moved to Carbondale, Illinois, so her mother could attend college. (Mabins Dep. 42-43.) Marilyn returned to Chicago when she reached the ninth grade, and lived exclusively with her grandmother from that point on. (Id.; PSOF ¶ 14.)

         In August 2014, Marilyn began working for the auto-parts manufacturer UGN, Inc. (DSOF ¶ 3.) She obtained her initial position at UGN through a staffing company, and on June 8, 2015, UGN hired Mabins to work full-time on its assembly line. (Id. at ¶ 4-5.) Defendant AEP acquired UGN in February 2016. (Id. at ¶ 6.) At that point, Mabins became an employee of AEP. (Id.)

         Mabins received a copy of UGN's attendance policy as part of her employment for that company. (Id. at ¶ 7.) When AEP acquired UGN, AEP adopted UGN's attendance policy as its own. (Id.) The policy requires employees to give at least 30 minutes' notice if they will be late for, or will be unable to work, a shift. (Id. at ¶ 8.) This policy also states that “Team Members who are absent for three (3) consecutive working days without calling into the call-off line and leaving a message (‘No Call/No-show') will be considered to have voluntarily terminated their employment.” (Id. at ¶ 9.) The company's bereavement policy allows employees to take up to three days of paid leave following the death of a “direct relative, ” including a grandparent-so long as the employee provides “proof of the relationship and proof of death to the Human Resources Team.” (Id. at ¶ 10; Bereavement Policy, Ex. B to Aff. of Tina Durr (hereafter “Durr Aff.”), Ex. E to DSOF.) The bereavement policy also allows employees to take an additional two days of unpaid leave if the deceased relative's funeral is held more than 200 miles from the employee's residence. (Id.) In “[r]are [c]ircumstances, ” the policy continues, “an unpaid extension of bereavement leave for immediate family may be granted for up to 5 additional working days.” (Bereavement Policy.)[1] Defendant contends, and its Director of Human Resources has testified, that it “routinely grants employees' FMLA leave requests.” (Durr Aff. ¶ 16.)

         On February 10, 2016, Marilyn Mabins called Defendant's Human Resources Department to request leave through February 20. (DSOF ¶ 14.) Mabins has testified that she spoke with a woman named Jennifer during this call, and that she told Jennifer the leave was related to the death of her grandfather. (Mabins Dep. 52, 54.) In fact, Mabins' grandfather died approximately twenty years earlier. (Id. at 25-26.) Mabins planned to use the time off to accompany her grandmother, who suffers from dementia, on a trip to Atlanta, Georgia, so that her grandmother could spend time with Mabins' ailing great-uncle. (Id. at 52-53.) Mabins admits that she did not tell Jennifer any of this on February 10. (Id. at 54.) Instead, she invented a story about her grandfather's funeral because she “was trying to figure out a way to get off work” and didn't think that Defendant would grant her leave for “my grandmother's brother.” (Id. at 25.)[2] Jennifer-who Defendant identifies as Human Resources Generalist Jennifer Hoernig-approved Mabins' request for leave and requested that she provide an obituary when she returned to work. (DSOF ¶ 15; Mabins Dep. 55-56.)[3]

         On February 21, Mabins left a voicemail with Defendant's answering service. (DSOF ¶ 19.) In this voicemail, Mabins stated that she “was taking a leave of absence” because she was “tending to [her] grandmother.” (Mabins Dep. 56-57.) Jennifer returned the call and told Mabins she had heard her message. Mabins told Jennifer that she ‘would be in touch when [she] was coming back.” (Id. at 58; DSOF ¶ 20.) Mabins did not say said anything else during this phone call. (Mabins Dep. 58-61; DSOF ¶ 21.)[4]

         On February 23, Maria Owens, Defendant's Human Resources/Safety Manager, sent an e-mail with the subject heading “Marilyn Mabins” to Jennifer Hoernig and Tina Durr, Defendant's Director of Human Resources. (DSOF ¶ 22; D000250, Ex. G to DSOF; Durr Aff. ¶ 3.) This email states, in its entirety, “Did Marilyn request FMLA? Roy said she did.” (D000250.)[5]Defendants claim, and Owens has testified, that Hoernig responded to this e-mail verbally, and that she told Owens “no, [Mabins] did not request.” (Dep. of Maria Owens (hereafter “Owens Dep.”), Ex. C to DSOF 69-70.) But Hoernig herself does not remember whether she responded to Owens' question (see Hoernig Dep. 21), and Owens' testimony about what Hoernig said is hearsay.[6]

         On February 28, Owens called Mabins and asked her if she would be coming to work that night. (DSOF ¶ 24; Mabins Dep. 61-62.) Mabins said she was not coming to work that night, and that “I would let [Owens] know . . . [w]hen I was coming back.” (DSOF ¶ 25; Mabins Dep. 61-62.) According to Mabins, neither she nor Owens said anything else during this phone call. (Mabins Dep. 62; DSOF ¶ 26.)[7]

         On March 1, Owens sent an e-mail to Coordinator Paul Coppie and Roy Gonzalez (whose position the parties do not identify), again with the subject heading “Marilyn Mabins.” (DSOF ¶ 27; D000252, Ex. D to DSOF.) This e-mail states, in its entirety, “We heard bereavement for the following dates. She was on bereavement 2/11-2/15 because her grandmother was out of town she would get 2/16, 2/17. I see 32 hours PTO for 2/16-2/19 I guess as extended bereavement. I see in timesaver that Marilyn has requested a Leave do you know what type?” (D000252.) Gonzalez responded a few minutes later. “We don't know, ” his e-mail explains. “He[r] last message on call off voicemail was that she was going to request leave. Did she apply for one? I believe the message she had left was about 2 weeks ago. I also heard that she found another job .??” (Id.) Owens then copied Hoernig on her response to Gonzalez and Coppie, stating, “I am waiting on a return call from her now. I will let you know what I found out.” (Id.)

         According to Defendant, Owens mailed a letter to Mabins on March 2. (DSOF ¶ 29.) This letter was addressed to the P.O. Box associated with Mabins in Defendant's files, where Defendant also “sends her W2.” (Durr Aff. ¶¶ 5-7.) The letter states, inter alia,

You requested bereavement leave due to the death of your grandfather that lived out of town more than 200 miles away. You were granted the (3) days paid bereavement and the 2 days unpaid to travel out of town. You then called and requested additional leave time which was paid out as 4 days PTO. You were scheduled to return to work on Sunday, February 22, 2016 @ 11pm. However, to date you have not called or shown for work since February 16, 2016. On Sunday, February 28, I called you . . . and you told me that you were trying to see what they were going to do regarding your grandfather. I called and left you a message to kindly return my call on Monday, February 29, and Tuesday, March 1, 2016, but I haven‘t heard from you since my call on Sunday.

(D000160, Ex. D to DSOF.) This letter concluded with a warning that Defendant would terminate Mabins' employment if she did not provide, by March 9, 2016, “documentation for bereavement as well as other documents that supports why you seem to have been unable to call or show for work since February 22, 2016.” (Id.) Plaintiff claims that she never received this letter. (Pl.'s Resp. to DSOF ¶ 29-30; Mabins Dep. 62.)

         On the same day that Owens recalls having mailed this letter to Mabins, Jennifer Hoernig sent an e-mail to Amanda Rivera, a customer services representative for a company that appears to have provided Defendant with uniforms for its employees. (DSOF ¶ 31.) In this e-mail, Hoernig asks Rivera to “please let Mike know that we have a uniform cancellation for [redacted] and can we put FMLA team members uniforms on hold. We have Marilyn Mabins and [redacted] out on FMLA for over a month.” (D000260, Ex. G to DSOF.) Rivera's response states that she “went ahead and put Marilyn and [redacted] on a 90 day hold.” (Id.)

         According to Defendant, “Hoernig did not believe Plaintiff was out on FMLA” when she sent this e-mail. (DSOF ¶ 32.) Rather, she “intended to convey that the other employee was out on FMLA whereas Plaintiff was just out.” (Id. at ¶ 33.) At her deposition, Hoernig described the meaning she intended to convey as follows: “[w]e have Marilyn Mabins and whoever else was out on FMLA for over a month. So that second person, whoever that was that I don't recall, was out for over a month. So Marilyn Mabins was out and that person's name was out on FMLA for over a month.” (Hoernig Dep. 52.) Mabins disputes all of this. She contends that the e-mail demonstrates that ...

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