United States District Court, N.D. Illinois, Eastern Division
Chad J. Wendelken, Plaintiff,
James Hardie Building Products, Inc., Defendant.
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge
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.
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).
Hardie Building Products, Inc. makes fiber-cement siding and
trim, and plaintiff Chad Wendelken worked in one of its
factories.  ¶¶ 2, 5. 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.  ¶¶ 11-12. Wendelken took the
advice and applied for intermittent FMLA leave to care for
his wife when needed.  ¶¶ 2-3.
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.  ¶ 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.
 ¶ 17. Salz saw photos of Wendelken and his daughter
at the concert on Facebook and reported what she saw to her
supervisor, Dan Rizzi.  ¶¶ 20-21. Rizzi, the HR
manager, told Salz to place the photos in Wendelken's
file but did not say much else.  ¶ 21.
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.
 ¶ 27. 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.  ¶ 27.
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.  ¶¶ 29-30. Rizzi met with
Wendelken that same day, and the foreman also attended. 
¶¶ 30, 33. During the meeting, Rizzi and Wendelken
discussed the concert and the unemployment comments. 
¶¶ 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.  ¶¶ 39-40.
Ultimately, Rizzi told Wendelken that he was fired. 
¶ 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.” 
August 2015, Wendelken contacted the United States Department
of Labor about a possible FMLA violation stemming from his
termination.  ¶ 53. About a month later, Wendelken
filed a Chapter 7 voluntary bankruptcy petition.  ¶
54. Neither the initial petition nor the follow-up amended
statement of financial affairs disclosed an FMLA claim. 
¶¶ 54, 56. A discharge order was entered in
Wendelken's bankruptcy case in December 2015, discharging
$53, 606 in debt.  ¶ 57. Wendelken filed this action
in April 2017. .
Real Party in Interest
Hardie argues that Wendelken's FMLA claim belongs to his
bankruptcy estate, not him, and therefore Wendelken cannot
bring the suit. 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.
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 ...