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Cloutier v. Gojet Airlines, LLC

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

May 15, 2018



          MATTHEW F. KENNELLY United States District Judge.

         John Cloutier has sued his former employer, GoJet Airlines, for alleged violations of the Family and Medical Leave Act (FMLA) (counts 1-8, 10-11) and the Americans with Disabilities Act (ADA) (count 12). GoJet has moved for summary judgment on all of Cloutier's claims. For the reasons stated below, the Court grants GoJet's motion in part and denies it in part.


         GoJet is a commercial airline that operates flights on behalf of United Airlines and Delta Airlines. Cloutier began working as a pilot for GoJet in 2008, and he became a full-time captain in 2009. On May 31, 2014, Cloutier visited his primary care physician, Dr. Camelia Pop; Cloutier believed he might have diabetes because he was thirsty and losing weight. On June 2, 2014, Dr. Pop confirmed that Cloutier did, in fact, have diabetes mellitus. She instructed Cloutier to start taking Metformin that same day and told him that he should not fly.

         Cloutier testified during his deposition that he participated in simulator training from June 3 through June 9. He also testified that he contacted Dr. Kitslaar, the FAA medical examiner, after learning of his diabetes diagnosis. Dr. Kitslaar e-mailed Cloutier the FAA protocol for pilots who have been newly prescribed Metformin for diabetes. Under this protocol, Cloutier was required to undergo testing by an Aviation Medical Examiner after taking Metformin for sixty days. He was prohibited from flying until the FAA evaluated his test results and approved the special issuance of a first class medical certificate (Cloutier was required to hold an up-to-date first class medical certificate in order to fly). Cloutier testified during his deposition that he "probably" contacted Dr. Kitslaar about his diagnosis on June 3, when he first learned of it. Def.'s Statement of Undisputed Material Facts (Def.'s SUMF), Ex. B (Cloutier Dep.) at 96:22. Cloutier later stated, however, that he might not have called Dr. Kitslaar until after his June 10 appointment with Dr. Pop, after he finished training in the simulator. See Id. at 97:17-98:13.

         Cloutier was scheduled to fly starting on June 11. On June 10, he called the crew scheduling department to inform them that he could not fly because he had begun taking Metformin and would need to undergo testing before the FAA issued him a new medical certificate. On June 12, Cloutier e-mailed Tracey Ryan, GoJet's Chicago Base Manager, to let her know that it looked like he would need to go on short-term disability leave. He explained that he would need to be on Metformin for sixty days and then send his blood tests to the FAA before he could be cleared to fly. Cloutier sent the email from his e-mail address. Ryan responded by e-mail the same day. She told Cloutier to "fill out the FMLA paperwork and have your doctor fax it over to me by Tues of next week, " which was June 17. Cloutier Dep., Ex. 6. Ryan directed Cloutier to obtain the necessary FMLA forms from the GoJet Intranet. Cloutier testified that he probably read Ryan's e-mail on June 17-the day she stated the FMLA paperwork was due-so he "rushed to get the stuff back to her." Cloutier Dep. at 118:5-118:15. Cloutier obtained the necessary certification from Dr. Pop and submitted it, along with the other required forms, to GoJet. Dr. Pop's certification estimated that Cloutier would be unable to work from May 31, 2014 to July 31, 2014. Cloutier Dep., Ex. 8.

         On the evening of June 17, Ryan sent Cloutier an e-mail to another one of his email that she received his completed FMLA paperwork. It is undisputed that either Steve Briner, GoJet's director of operations at the time, or then-Chief Pilot Randy Bratcher dictated the contents of the email to Ryan. The e-mail said, "I will have your schedule updated for FMLA leave from 6/11/14 - 7/31/14." Pl.'s Resp. in Opp. to Def.'s Mot. for Summ. J. (Pl.'s Resp.), Ex. 5. The e-mail went on to state "[b]ecause you are on FAA regulatory medication and Pursuant to Section 22.A of the GoJet Pilot Collective Bargaining Agreement, due to GoJet's concern about your fitness to fly, you are required to submit for a medical examination at the office of Dr. Matthew Miriani for your return." Id. Cloutier responded by e-mail that same evening. In his response, Cloutier quoted Section 22.A of the Collective Bargaining Agreement (CBA) as follows: "A Pilot will not be required to submit to a medical examination in addition to those required by the FAA unless the Company believes that the Pilot's medical condition is impaired and believes the Pilot may not be fit to fly as a result thereof." Cloutier Dep., Ex. 9 at 3. Cloutier then stated the following:

In order to require me to go to the company's examiner the Company would have to believe that my medical condition is impaired after the FAA has cleared me. It would also have to believe that I may not be fit to fly as a result of that medical condition. Since you are telling me now that I will be required to submit for a medical examination, in what way does the company believe that I am impaired? Who has told you that they feel that my medical condition is impaired? What evidence is there that I am at all impaired?
Obviously the company could not believe that my medical condition is impaired when we are 2 months from me even coming back to work. Thus, paragraph 22.A of the CBA could not apply and I will not be going to the company doctor.
Airlines were the biggest abuser of medical exams in order to discriminate against people, mainly in an attempt to keep their future medical costs down. . .

Id. At Briner's direction, Ryan responded to Cloutier by e-mail the following day and asked him, "Are you going to see Dr. Miriani as directed, prior to your return from FMLA on 8/1/14? Yes, or No?" Id. Briner was cc'ed on the e-mail. On June 23, Briner himself e-mailed Cloutier. Briner explained that Ryan was on vacation and he had not seen a response from Cloutier; he instructed Cloutier to "[p]lease respond to me by Close of Business on 6/25/14 with a yes, you will comply or no, you have elected not to comply." Id. at 2.

         On June 25, after receiving a call from Bratcher about his failure to respond to Briner, Cloutier e-mailed Briner from his e-mail account, but he did not state whether or not he would see Dr. Miriani. Instead, Cloutier reiterated "[m]y condition grounds me from flying until the FAA approves my return" and detailed the steps that would need to be taken before he obtained FAA approval. Id. at 1-2. Cloutier then noted that he would be happy to help with any of GoJet's pilot recruiting efforts that might be coming up. Briner responded by e-mail later that evening to inform Cloutier that he failed to respond to his question by the deadline. On the morning of June 26, Briner appears to have forwarded Cloutier's June 25 e-mail to Ryan and Bratcher, along with the following message:

I do not want you to reach out to this man again either via phone or e-mail. Let Randy [Bratcher] know the instant you are back in the office if he calls or sends an e-mail, so we can all discuss. After his FML ends, our intent is to terminate his employment for noncompliance with the law.

Pl.'s Resp., Ex. 1.

         Cloutier wrote back to Briner via e-mail on June 26. He stated that he had "no problem at all following what the contract says in paragraph 22A." Cloutier Dep., Ex. 9 at 1. Cloutier went on to state that the issue was "premature"; he could not return to work on August 1 because he needed to be on the Metformin for at least sixty days before he could get the necessary testing, and the results would have to be evaluated by the FAA Aerospace Medical Certification Division before an FAA medical examiner could issue him a first class medical certificate. Id. Cloutier estimated that the process would take "about 2 more months minimum, " and stated that only once that process was complete would it be time to consider the application of Section 22A of the CBA. Id.

         At the end of July, crew scheduling contacted Cloutier regarding whether he would be able to fly as of August 1. Cloutier told them he would not be able to get his first class medical certificate until the end of August or early September. On July 31, Cloutier e-mailed Ryan from his address to confirm that he hoped to be back near the end of August. Cloutier testified that, around 5:00 p.m. on August 1, he checked his inbox for a response from Ryan, but he did not see one. Approximately an hour and a half later, Ryan sent a response to Cloutier's address. In this e-mail, Ryan explained to Cloutier that, "[b]ecause you are requesting an extension of your FMLA, we will need re-certification FMLA paperwork to approve the extension." Cloutier Dep., Ex. 10. She requested that Cloutier provide her with the FMLA re-certification paperwork "no later than 5 p.m. CST on August 15, 2014." Id.

         Cloutier did not submit his FMLA re-certification paperwork by August 15. He testified that he did not see or read Ryan's e-mail until August 19 and that he did not remember checking his inbox at any time between around 5:00 p.m. on August 1 and August 19. Cloutier explained that he went for long periods of time without checking that e-mail address "because it's all junk mail. It's usually nothing significant."[1] Cloutier Dep. at 163:10-163:12. On August 19, Cloutier responded to Ryan's e-mail, explaining that he "just saw" it and he would get her the requested documents in a few minutes. Cloutier Dep., Ex. 11. On August 21, Cloutier e-mailed Ryan again to let her know that he was still waiting for his doctor to fill out the FMLA recertification paperwork; he also noted that the FAA had all his testing results and that he did not think it would be long before the agency approved his medical certificate.

         Cloutier submitted his FMLA recertification paperwork to GoJet on August 25, 2014. By then, it was too late. Bratcher sent out a "termination notification" regarding Cloutier on August 16; he changed it to a "resignation notification" on August 17. Pl.'s Resp., Exs. 26-27. An employee status form dated August 18, 2014 reports that GoJet considered Cloutier to have resigned on August 15 due to his failure to return from FMLA leave. Def.'s SUMF, Ex. A (Bratcher Dep.), Ex. 4 at GO JET 000129. And, in an August 22, 2014 letter, Bratcher finally informed Cloutier, "Your voluntary resignation without notice from employment with GoJet Airlines was processed on August 15, 2014 for failure to return from leave." Bratcher Dep., Ex. 3.

         Cloutier filed an EEOC charge in September 2014. He alleged that GoJet discriminated against him on the basis of age and disability (diabetes) and retaliated against him for engaging in protected activity. He also filed a union grievance against GoJet in October 2014, alleging violations of the CBA, the FMLA, and the ADA. In November 2015, Cloutier filed suit against GoJet and its holding company, Trans States Holdings, Inc., [2] in the Circuit Court of Cook County, Illinois, alleging the following violations of the FMLA (counts 1-11), ADA (count 12), and Age Discrimination in Employment Act (ADEA) (count 13). The complaint describes these as follows:

1. FMLA interference - by terminating plaintiff from his job
2. FMLA interference - by only authorizing FMLA requested leave in an amount less than the minimum time that would be required before Cloutier could legally return to work
3. FMLA interference - by requiring medical certification sooner than the minimum allotted time under the law
4. FMLA interference - by failing to provide plaintiff with the required notice of possible consequences when requesting certification
5. FMLA interference - by failing to provide plaintiff with the required 'designation notice' and 'eligibility notices'
6. FMLA interference - by demanding a re-certification when defendants knew that there had been no change in the status of Captain Cloutier in violation of the FMLA
7. FMLA interference - by demanding the return of the illegally requested recertification after only 13 days when under the FMLA, even if the request was proper, the demand can be required to be returned no less than 15 days later
8. FMLA interference - by failing to provide plaintiff with the required notice of possible consequences when requesting the re-certification
9. FMLA interference - defendants['] demand that Captain Cloutier go to Saint Louis and be seen by their doctor before they would allow him to return to work was in direct violation of the FMLA
10. FMLA retaliation - by terminating Captain Cloutier in retaliation for his exercising his FMLA rights
11. FMLA interference - by terminating Captain Cloutier [sic] and his family's medical ...

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