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Wendelken v. James Hardie Building Products, Inc.

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

June 18, 2018

Chad J. Wendelken, Plaintiff,
v.
James Hardie Building Products, Inc., Defendant.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah United States District Judge

         Plaintiff Chad Wendelken was a factory worker employed by James Hardie Building Products, Inc. Wendelken brought suit against James Hardie, claiming he was unlawfully terminated for taking leave under the Family and Medical Leave Act. James Hardie moves for summary judgment. For the reasons stated below, the motion is granted.

         I. Legal Standards

         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “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). The movant bears the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “To survive summary judgment, the nonmoving party must show evidence sufficient to establish every element that is essential to its claim and for which it will bear the burden of proof at trial.” Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (citation omitted). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Laborers' Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018).

         II. Facts

         James Hardie Building Products, Inc. makes fiber-cement siding and trim, and plaintiff Chad Wendelken worked in one of its factories. [19] ¶¶ 2, 5.[1] In early 2015, Wendelken called off from work to care for his sick wife, and an assistant in the Human Resources department, Brandy Salz, suggested Wendelken apply for intermittent FMLA leave for use in the future. [19] ¶¶ 11-12. Wendelken took the advice and applied for intermittent FMLA leave to care for his wife when needed. [28] ¶¶ 2-3.

         On July 18, 2015, Wendelken was supposed to work from 7:00 a.m. to 7:00 p.m., but he called to say he would not be at work that day because his wife was sick. [19] ¶ 15. At around 5:00 p.m., Wendelken took one of his daughters to a Taylor Swift concert, leaving his wife at home in the care of his mother. [19] ¶ 17. Salz saw photos of Wendelken and his daughter at the concert on Facebook and reported what she saw to her supervisor, Dan Rizzi. [19] ¶¶ 20-21. Rizzi, the HR manager, told Salz to place the photos in Wendelken's file but did not say much else. [19] ¶ 21.

         A few days later, Salz told Rizzi that Wendelken had just told her that he was going to try to get fired by James Hardie so that he could collect unemployment while working for his brother-in-law for cash and that another employee told her Wendelken said something about leaving James Hardie soon. [19] ¶ 27.[2] Salz also said she told Wendelken that HR knew about his attendance at the concert when he was supposed to be taking care of his wife, and Wendelken said he would just claim his wife was sick but feeling better by the time he went to the concert. [19] ¶ 27.

         On July 29, 2018, Rizzi told Salz and the general foreman that he was going to meet with Wendelken to discuss both the concert and Wendelken's statements about wanting to get fired to collect unemployment. [19] ¶¶ 29-30. Rizzi met with Wendelken that same day, and the foreman also attended. [19] ¶¶ 30, 33. During the meeting, Rizzi and Wendelken discussed the concert and the unemployment comments. [19] ¶¶ 37-39. Wendelken denied telling anyone that he was trying to get fired so he could collect unemployment, which Rizzi said he did not believe. [19] ¶¶ 39-40. Ultimately, Rizzi told Wendelken that he was fired. [19] ¶ 41. The “Term Personnel Action Form” generated for Wendelken's termination stated: “Employee being termed for dishonesty. Chad denied on a number of occasions during our conversation that he indicated to another HR employee that he was trying to get fired so he could work for cash and collect unemployment.” [19] ¶ 48.

         In August 2015, Wendelken contacted the United States Department of Labor about a possible FMLA violation stemming from his termination. [19] ¶ 53. About a month later, Wendelken filed a Chapter 7 voluntary bankruptcy petition. [19] ¶ 54. Neither the initial petition nor the follow-up amended statement of financial affairs disclosed an FMLA claim. [19] ¶¶ 54, 56. A discharge order was entered in Wendelken's bankruptcy case in December 2015, discharging $53, 606 in debt. [19] ¶ 57. Wendelken filed this action in April 2017. [1].

         III. Analysis

         A. Real Party in Interest

         James Hardie argues that Wendelken's FMLA claim belongs to his bankruptcy estate, not him, and therefore Wendelken cannot bring the suit.[3] When someone files a petition for bankruptcy, her property, including her legal claims, becomes part of the bankruptcy estate. 11 U.S.C. § 541(a)(1). Bankruptcy petitioners are supposed to disclose their legal claims, but if they leave something out so the claim is never administered, the undisclosed claim stays with the estate.

         Matthews v. Potter, 316 Fed.App'x 518, 521 (7th Cir. 2009) (citing 11 U.S.C. § 554(d)). If a claim is part of the bankruptcy estate, it belongs to the trustee and she is the real party in interest authorized to bring suit, unless the trustee decides to abandon the claim. Id.; Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006) (“[T]he estate in bankruptcy, not the debtor, owns all pre-bankruptcy claims.”). So “if the event giving rise to the claim occurred before the debtor filed, the ...


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