Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BARTON v. ZIMMER, INC. (October 18, 2011)

Zimmer, Inc. sells artificial hips and knees. It employed Bruce Barton as part of its sales force since 1993. Andy Richardson became Barton's supervisor in 2004. Richardson eliminated many of Barton's duties over the course of the next year, most likely due to age discrimination (conceded, for purposes of argument, by Zimmer). Barton complained to Human Resources representative Richard Abel after a negative May 2005 performance review. Able investigated the situation, met with Barton and Richardson, and ultimately recommended that Richardson be fired for his divisive leadership. In the meantime, Barton had been on vacation,FMLA leave, and paid administrative leave. In September, Barton returned and began reporting to Sherri Milton. Barton complained about the assignments he received from Milton and filed an EEOC charge, alleging that the assignments were in retaliation for his earlier EEOC charge against Richardson. After Milton criticized his performance, Barton suffered a mental breakdown. He used up his FMLA leave, as well as his short and long-term disability benefits. The Social Security Administration granted a total disability benefits claim and Burton retired from Zimmer. Barton filed suit against Zimmer for ADEA discrimination and retaliation and FMLA interference. Judge Springmann (N.D. Ind.) granted summary judgment to Zimmer. In part, she concluded that Barton could not prevail on his ADEA claim because he was only seeking front pay, not reinstatement. Barton appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision), Sykes, and Hamilton affirmed. The Court first addressed the Richardson ADEA claim. It disagreed with the district court's conclusion that front pay is not available because of the statute's compensatory damages exclusion. In Pollard, the Supreme Court held, in the context of Title VII, that front pay could be an appropriate substitute for reinstatement if the reinstatement remedy was not viable as a result of psychological injuries caused by the discrimination. The Court assumed that the Pollard Title VII approach would apply in an ADEA case but concluded that Barton was not entitled to it. Here, Barton’s psychological injuries that precluded his reinstatement arose out of the job assignments from Milton, not from Richardson. The Milton job assignments were not the result of any age discrimination. The Court turned to the ADEA retaliation claim. To prevail, Barton was required to show a statutorily protected activity, a materially adverse employment action, and a causal relation between the two. The Court concluded that Barton's challenging new job assignment was probably not a materially adverse employment action but that, even if it was, no reasonable jury could conclude that Milton assigned the task to him in retaliation for his protected activity. The project was important to the company and Barton's work history showed that he was qualified to complete it. Finally, the Court addressed the FMLA interference claim. The FMLA requires employers to restore an employee to his prior or equivalent position upon the termination of leave. It is true that Barton was not returned to his prior position since most of his duties had been eliminated and the few projects he had were completed. The record supports, however, the conclusion that Zimmer assigned him to the same duties he would have had he not taken leave. The FMLA requires no more.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

BRENEISEN v. MOTOROLA (September 2, 2011)

Motorola employed James Breneisen in several different positions between 1994 2003. In early 2001, he took 12 weeks FMLA leave for gastroesophageal reflux treatment. Upon his return, although he retained his prior salary, he was assigned to a different position, which he considered a demotion. Just a few weeks later, he took another four months leave for esophageal surgery. He took his third and final leave in early 2002, from which he never returned. Motorola terminated his employment in 2003. Breneisen brought an FMLA claim against Motorola, alleging that his supervisor's conduct exacerbated his medical condition. The district court granted summary judgment against him. On appeal, the Seventh Circuit reversed and remanded. The only claims that remained on remand were Breneisen's discrimination and retaliation claims during the five months between his second and third leaves. At Motorola's request, Magistrate Judge Mahoney (N.D. Ill.) barred evidence of any causal relationship between Motorola's conduct and Breneisen's medical condition. The court then dismissed the case, finding that Breneisen’s requested relief was unavailable during the time when he was unable to perform his job, given that he had exhausted his FMLA leave during his first leave. Breneisen appeals.
     Anna Lineweaver also worked at Motorola. She also claimed that Motorola violated her FMLA rights when it denied her tuition reimbursement and retaliated against her for taking a leave. The Seventh Circuit also reversed and remanded the district court’s summary judgment ruling against her. On remand, Motorola tendered her twice the amount she claimed she was owed. Magistrate Judge Mahoney denied her request to convert Motorola’s tender to a judgment and dismissed the case as moot. Lineweaver appeals.

In their opinion, Seventh Circuit Judges Bauer, Kanne, and Evans (who, as a result of his death, took no part in the decision) affirmed. The Court first addressed Breneisen's claim and concurred with the lower court that the cause of one's injury is irrelevant under the FMLA. The Court added that, even if such was not the case, it would be irrelevant to Breneisen because his second leave was not pursuant to the FMLA. He was no longer protected by the statute when the alleged retaliation occurred. The Court turned to Lineweaver's claim. It noted that the only interest she has left is her claim for attorney's fees. It is well settled that a claim for attorney's fees, in and out itself, is not enough to constitute a case or controversy. The district court properly dismissed the case as moot. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LEWIS v. SCHOOL DISTRICT #70 (June 1, 2011)

After School District #70 fired Debra Lewis, she brought suit. She alleged, among other things, violations of the Family and Medical Leave Act. Although her employer prevailed in the district court, the Seventh Circuit reversed the FMLA and breach of contract counts. On April 25, 2009, on remand, the parties orally agreed to a settlement in the presence of a magistrate judge. Within weeks, however, Lewis learned that the school superintendent had been accused and was under investigation for child molestation. Lewis refused to sign the settlement agreement. Judge Stiehl (S.D. Ill.) granted defendants' motion to enforce the oral settlement and, when Lewis continued to refuse to sign the agreement, he dismissed the case with prejudice. Lewis appeals.

In their opinion, Circuit Judges Bauer and Williams and District Judge McCuskey affirmed. Illinois enforces oral settlement agreements if there is an offer, acceptance, and a meeting of the minds on its terms. Given the record in open court before the magistrate judge, the Court had no difficulty in finding each element. Lewis also argued that the agreement should be set aside because of the defendants' "fraud." The Court agreed that a contract could be set aside when there is evidence of fraud in the inducement but found the materiality element lacking here. Although the Court conceded that knowledge of the investigation could have given Lewis more bargaining power and possibly a more valuable settlement, it would have been unrelated to the defendants' conduct in terminating her employment. The Court turned to the sanction imposed by the district court. Although it believed the result "unfortunate" and noted that Lewis turned a substantial recovery into nothing, the Court found no abuse of discretion. The district court ordered Lewis to sign the settlement agreement several times and it warned her that not doing so could result in dismissal and sanctions. Only after eight months had passed did he dismiss the case.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RIGHI v. SMC CORPORATION (February 14, 2011)

SMC Corporation employed Robert Righi as a sales representative from 2004 until 2006. Righi worked out of his home in Henry, Illinois, where he lived with a roommate and his ailing mother. His principal methods of communicating with his sales manager was his cell phone and e-mail. Righi was attending a training session in Indianapolis on July 11, 2006 when he received a call that his mother was in a coma. He immediately returned home. Although he advised a colleague of his plans and asked the colleague to inform others, he did not inform his sales manager of the situation until the next morning. In fact, he turned his cell phone off and missed several calls from his sales manager on July 11. He sent his sales manager an e-mail on the morning of July 12. He stated that he needed "the next couple days off" to care for his mother, that he had vacation time, or that "I could apply for the family care act, which I do not want to do at this time." Over the next several days, Righi's sales manager attempted to reach him by phone multiple times. Righi did not answer or return the calls. His roommate finally answered one of the calls and took a message that the sales manager needed to speak with Righi as soon as possible. Righi finally called his sales manager -- after nine days of silence. SMC terminated Righi's employment the next day for violating its leave policy. The leave policy required prior approval for a leave and provided that two days absence without notification was grounds for termination. Righi brought suit against SMC pursuant to the Family and Medical Leave Act, alleging that SMC interfered with his statutory rights. Judge McDade (C.D. Ill.) granted summary judgment to SMC on two grounds: that Righi was not entitled to FMLA protection because he stated in his e-mail that he did not want it, and that he was not entitled to FMLA protection because he did not comply with the Act's regulations requiring notification of a return date. Righi appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. In order to be entitled to protection under the FMLA, employee must notify his or her employer of a desire to take leave and of a projected return date. With respect to the former, the Court disagreed with the district court's conclusion. Very little is required of an employee to trigger the FMLA protection. Putting an employer on notice of a basis for leave is sufficient. An employee can waive FMLA protection, but only by a clear expression of intent to do so. The Court concluded that Righi met the notice requirements with his July 12 e-mail. It mentioned the “family care act” and left open, at least, the possibility that he could choose to use it. The Court also concluded that his expressed desire not to use it was not a clear expression of a waiver. The Court agreed with the district court, however, with respect to its alternate grounds for summary judgment. Righi was obligated under the FMLA and its regulations to keep SMC informed of his anticipated return date. The regulations require him to provide that information within two working days. Here, Righi never provided that notice and, in fact, ignored all of SMC's attempts to obtain additional information. He is not entitled to the FMLA's protection.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

AMES v. HOME DEPOT (January 6, 2011)

Diane Ames had a five-year, incident free employment record with Home Depot when she asked her store manager for the company's assistance with her alcohol problem. She enrolled in the company's employee assistance program and was put on paid leave. She was told that she could return when she had a treatment plan, passed a drug and alcohol test, and obtained return authorization. She did so and returned to work within a month. The following month, however, she was arrested for driving under the influence. When Home Depot found out, it required her to schedule an alcohol treatment evaluation. The company gave her several extensions within which to schedule the evaluation. In the meantime, she sought scheduling accommodations from her manager so she could attend her Alcoholics Anonymous meetings, she provided her manager a treatment note from her physician, and she shared many of her other personal difficulties with her manager. During a regularly scheduled shift on December 23, an assistant manager suspected that she was under the influence of alcohol. She was immediately tested. When the company learned that she tested positive for alcohol, it decided to terminate her for substance abuse. Her manager scheduled a meeting with her on January 2 to notify her. She missed the meeting because she began drinking more and checked herself into a hospital on January 1. Home Depot mailed Ames a letter on January 10 informing her of the termination of her employment. Ames filed suit pursuant to the Family and Medical Leave Act and the Americans with Disabilities Act. Judge Coar (N.D. Ill.) granted summary judgment to Home Depot on those claims. Ames appeals.

In their opinion, Judges Manion, Tinder, and Hamilton affirmed. On her claim under the FMLA that Home Depot interfered with her leave rights, Ames was required to establish (among other things) that she was entitled to leave under the Act. An employee is entitled to live under the FMLA only if she is suffering from a "serious health condition," which is defined as an illness that involves inpatient care or continuing treatment. Substance abuse can qualify as a serious health condition but only if it meets the inpatient care or continuing treatment standard. The record contains no evidence of either. She did check into a hospital, but that was after her employment was terminated. Therefore, no reasonable juror could conclude that she had a serious health condition -- her FMLA interference claim fails. Ames also asserted an FMLA retaliation claim, pursuant to which she had to establish that she engaged in a protected activity, that she suffered an adverse job action, and that there was a causal connection between them. The Court addressed only the causal connection prong. Here, the record contains no evidence that Home Depot's decision to fire Ames was related to any alleged request for FMLA leave – her FMLA retaliation claim fails. Lastly, the Court rejected Ames' ADA claim. In order to prevail on that claim, she had to establish that she had a disability. Alcoholism can be a disability under the ADA but only if it "substantially limits" a major life activity. Ames offered no evidence that her alcoholism even adversely affected her life's activities. In fact, the only evidence on that score was her testimony that it did not affect her performance on the job. Her ADA claim fails.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

BROWN v. AUTOMOTIVE COMPONENTS HOLDINGS (September 8, 2010)

Letecia Brown was employed at Ford's Indianapolis plant from 1998 until her discharge in 2006. Her discharge resulted from her noncompliance with the FMLA leave policies in the Collective Bargaining Agreement (CBA). Under the CBA, an employee desiring leave: a) must submit a doctor's form before the leave’s expiration date, b) is deemed AWOL if she fails to do so, c) is considered AWOL if she fails to do so even if she seeks extension, and d) is sent a five day termination notice by registered mail if AWOL. Brown requested leave on August 11, 2006. Her doctor submitted the required form on August 21, indicating an August 28 leave expiration date. He also referred her to a psychiatrist. When Brown could not get an appointment with the psychiatrist until August 29, she asked her referring doctor to submit additional paperwork for an extension. He failed to do so – she failed to check. Brown's psychiatrist recommended that she extend her leave through September 15. Brown claims she advised Ford of the extension and was told to pick up a new form. Once her original leave expiration date (August 28) arrived without additional forms, Ford considered her AWOL and sent her a termination notice on August 31 by certified mail. Brown picked up a form from the clinic on September 6. She claims that she advised Ford that she could not return the completed form until September 11. On September 11, she found out that she had been fired. Her union filed a grievance but withdrew it because of her failure to follow the CBA procedures. Brown filed suit, alleging FMLA interference. Chief Judge Young (S.D. Ind.) granted summary judgment to the defendants. Brown appeals.

In their opinion, Circuit Judges Evans and Sykes and District Judge Der-Yeghiayan affirmed. The FMLA prohibits an employer from interfering with an employee's exercise of any rights under the Act. In order to state an interference claim, an employee must prove that she was eligible, that the employer was covered, that she was entitled to the leave, that she provide sufficient notice to her employer, and that her employer denied her FMLA benefits. At issue in the appeal was the notice element. The FMLA regulations in effect at the time addressed the notice requirement in the context of an unforeseeable extension of leave. The regulation provided that the employee should give notice as soon as practicable -- "within no more than one or two working days of learning of the need for leave." Here, Brown's doctor referred her to the psychiatrist on August 21. On that same day, she learned that she would not be able to see him until August 29, the day after her leave expired. She knew at that time that she would need an extension. The regulation required her to notify Ford within one or two days of August 21. She did not contact Ford until August 30. Brown fails to satisfy the notice element of an FMLA interference claim.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

GOELZER v. SHEBOYGAN COUNTY (May 12, 2010)

Dorothy Goelzer began her employment with Sheboygan County, Wisconsin in 1986. In 1999, she became the full-time assistant to Adam Payne, the Administrative Coordinator for the County. For several years, she received consistently favorable performance reviews. Her health deteriorated beginning in 2002. She used over 300 hours of FMLA leave in 2002, over 175 hours in 2003, and almost 100 hours in 2004. Although her health improved in 2005, she continued to take intermittent FMLA leave to care for her mother. Her significant use of FMLA leave was noted negatively in each of her performance reviews and salary discussions during this time. In May of 2006, Goelzer requested two months of FMLA leave for a foot surgery. Although the County approved her request on August 8, she was fired on September 8. Payne had been promoted to the new position of County Administrator on August 15 and, for the first time, had been given the power to fire Goelzer. Goelzer filed an action against the County and Payne. She alleged violations of the FMLA for the County's failure to restore her to her position and for discrimination. The district court granted summary judgment to the defendants. Goelzer appeals.

In their opinion, Judges Bauer, Wood, and Williams reversed. The Court noted two fundamental principles of the FMLA: the right to be restored to one's position (or an equivalent one) upon return from a leave and the right not to be discriminated against for using leave. The only contested issue in Goelzer's interference claim was whether she was terminated to prevent her from being reinstated. Although Payne's stated rationale was his desire for a greater skill set, the Court concluded that there was sufficient evidence for a jury to decide in Goelzer’s favor. That evidence included the many references by Payne over the years to her use of sick leave. The Court next addressed the retaliation claim, which differs from the interference claim by requiring proof of discriminatory intent. Again, the Court concluded that the record supported two possible explanations for Payne's decision to terminate Goelzer. Goelzer was entitled to have a jury select one.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

BAILEY v. PREGIS INNOVATIVE PACKAGING (April 2, 2010)

Michelle Bailey was employed by the defendant Pregis Innovative Packaging -- that is, until they terminated her for accumulating too many absenteeism points during a 12-month period. She brought suit against Pregis under the Family and Medical Leave Act. The district court granted summary judgment to Pregis. Bailey appeals.

In their opinion, Judges Posner, Manion, and Hamilton affirmed. The Court noted the two issues raised by the appeal: a) whether the 12-month period during which an employee must accumulate 1,250 hours of service to be entitled to take leave is tolled during a period of leave, and whether Pregis retaliated against Bailey by not including leave time in its own policy of removing absenteeism points twelve months after they are imposed. The Court rejected Bailey's position on the first issue. Although it found no precedent, it also found no basis for the tolling in the statute and also found comfort in the line of cases that refused to adopt an expansive definition of the term "service" in the Act. Thus, Bailey is not entitled to "service" credit for a number of days preceding the twelve month period equal to her number of days of leave. With respect to the second issue, the Court first addressed whether the employer's policy of removing absenteeism points is an “employment benefit" under the Act. Although it gave no weight to a Department of Labor opinion letter concluding that such a policy is an "employment benefit" because the letter contained no reasoning, it concluded on its own that the letter reached the right result. Even if it is an employment benefit, however, the Court noted that the Act provides that taking leave cannot result in the loss of employment benefit that has already accrued. Benefits that have not already accrued are not protected. For example, the Act specifically provides that an employee on leave does not accrue seniority. For much the same reason, an employee on leave does not accrue service days toward the twelve months after which the employer forgives an absentee day.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LAFARY v. ROGERS GROUP, INC. (January 12, 2010)

Angela LaFary was a field clerk for Rogers Group, Inc. (RGI), a producer of crushed stone. In 2003, she was performing primarily administrative duties but longed for a chance to get into sales. Michael DeMartin, her supervisor, indicated she was on a track to do so. Unfortunately, she got derailed in 2004. In February, she married a man who worked as an independent trucker for the same RGI office. She found out she was pregnant on March 15. On March 24, DeMartin proposed, in an e-mail, to transfer LaFary to another RGI office. He noted business needs as well as a concern about the possible conflict of interest presented by LaFary's marriage. He recommended a transfer based solely on the business needs, however. On April 1, RGI assigned LaFary's husband to work with a different RGI office. In the same month, they transferred LaFary to the same office. Although DeMartin knew she was pregnant when he transferred her, he asserts that he was unaware of her pregnancy at the time of his recommendation. The transfer resulted in a pay increase but may have negatively affected LaFary's opportunities for a sales position. LaFary suffered complications from her pregnancy. She was hospitalized for two weeks in June and never returned. In January of 2005, although LaFary indicated her desire to return, DeMartin informed her that, pursuant to RGI policy, she was terminated because she did not return when her leave expired. LaFary filed an EEOC complaint, alleging sex discrimination. She then brought suit under Title VII. The court granted summary judgment to RGI. LaFary appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. On the claim related to her transfer, the Court noted that the district court found both that it was not an adverse employment action and that LaFary did not establish that DeMartin knew of her pregnancy at the time he proposed her transfer. Although finding the first conclusion a close question, the Court affirmed on the second. LaFary's declaration stated only that DeMartin knew of her pregnancy "shortly after" she became pregnant. It never stated precisely when he knew. In fact, she never presented any competent evidence that DeMartin knew of her pregnancy at the time he recommended her transfer. Thus, she cannot prevail on that claim. With respect to her termination claim, the Court concluded that LaFary never established that a similarly situated individual not in her class was treated more favorably. Having failed to do so, she cannot prevail on the termination claim either.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LONG v. TEACHERS’ RETIREMENT SYSTEM (October 23, 2009)

The Illinois Teachers’ Retirement System (“TRS”) manages the pension benefits of Illinois’ retired teachers. For almost two decades, Julie Long received favorable performance reviews at her job there. During the mid-2000s, however, her performance deteriorated. She missed a lot of work, made a number of errors in processing data, and failed to conduct required training. TRS’ personnel manager, Gina Larkin, met with Long and her immediate supervisors in late 2005. Larkin learned of Long’s performance problems and her absences. She suggested that Long might be eligible for FMLA leave. Long applied for and took intermittent FMLA leave from October – January 2006. Larkin met with Long’s supervisors again and learned that Long’s performance and attendance issues remained uncorrected. Larkin recommended to Jon Bauman, the Executive Director, that Long be fired. Bauman, after reviewing Long’s evaluations and speaking with her supervisor, decided to fire her. Long brought suit, alleging that her termination was in retaliation for taking FMLA leave. The district court granted summary judgment to TRS. Long appeals.

In their opinion, Chief Judge Easterbrook, Judge Sykes and District Judge Kendall affirmed. The FMLA does not allow an employer to discriminate against an employee for taking FMLA leave. Here, two of the three elements of a claim of discrimination – protected activity and adverse employment action --- are not disputed. The issue on appeal is whether there is a causal connection between the two. In order to do that, stated the Court, Long had to produce evidence that the decisionmaker acted with an unlawful purpose. Bauman had the only authority to fire a TRS employee. The record shows that Bauman not only did not act discriminatorily – he did not even know about Long’s FMLA leave. While the “cat’s paw” doctrine sometimes imputes a subordinate’s intent to a supervisor, the “singular influence” requirement of that doctrine does not exist here. The Court also rejected Long’s arguments that discriminatory intent could be inferred from TRS’ failure to follow its own disciplinary policy (the Court concluded that it did follow it) and from the sudden decline in her performance evaluations (the Court noted that the decline in evaluations prior to the protected activity does not support the inference.)  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

DAUGHERTY v. WABASH CENTER, INC. (August 14, 2009)

Michael Daugherty worked for Wabash Center, Inc. for seven years. He had an excellent employment record. He was promoted on several occasions and always received positive reviews. Things changed in 2006. He started having trouble with his coworkers and his staff. He was given a written reprimand for abusive e-mails and unacceptable management style. Permission for a month-long vacation was revoked. Daugherty immediately visited his doctor and requested two weeks FMLA leave from the Center. His request was granted. In his absence, the Center discovered that he had used the Center's credit card to make at least five unauthorized purchases. It also discovered that he had failed to follow through on some key responsibilities. When Daugherty was due back from his leave, the Center presented him with a corrective action plan -- which he refused to sign. He instead requested additional medical leave. The Center granted his request but asked that he not access the network while on leave and asked him for his keys and passwords. He refused. After further analysis revealed that he had deleted thousands of files while on leave, the Center fired him. Daugherty filed suit, alleging a violation of the FMLA. The court granted summary judgment to the Center. Doherty appeals.

In their opinion, Judges Posner, Kanne and Sykes affirmed. Under the FMLA, the Court stated, an employee is not entitled to any right he or she would otherwise not be entitled to absent the leave. The FMLA does not prohibit an employer from terminating an employee's employment during FMLA leave if it discovers misconduct that justifies the termination. Here, Daugherty admitted most, if not all, of the misconduct. The Center did not violate the FMLA by failing to reinstate Daugherty. The Court also rejected the Daugherty's alternative claim that the Center retaliated against him for taking leave. The undisputed evidence in the record is that the Center fired Daugherty for multiple instances of misconduct. Finding no factual dispute, the Court affirmed the summary judgment for the Center. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RYL-KUCHAR v. CARE CENTERS, INC.(May 11, 2009)

Kathleen Ryl-Kuchar began working as a dishwasher at Care Centers, Inc. (“CCI”) at the age of 15. Seventeen years later, she held the salaried position of dietary consultant. Ryl-Kuchar became pregnant with triplets in 2002. She continued working on site until May of 2003, at which time she began working from home. She performed her normal duties with the blessing of CCI management, although her total hours dropped below 35 hours a week. With the help of her family, Ryl-Kuchar returned to work full-time shortly after she gave birth. Her return was short-lived, however. She soon commenced FMLA leave and never returned, deciding instead to resign. In mid-November, CCI’s employee benefits arm determined that Ryl-Kuchar had become a part-time employee in June and had therefore lost her eligibility for medical benefits. It retroactively canceled her health insurance effective the month before she delivered the triplets. Ryl-Kuchar brought an action under the FMLA, arguing that CCI interfered with her right to health insurance and retaliated against her for her decision to take FMLA leave. The jury awarded her damages. CCI appeals from the district court's denial of its motion for judgment notwithstanding the verdict.

In their opinion, Judges Flaum, Evans and Williams affirmed. The Court noted the heavy burden necessary to overturn a jury verdict. It reviewed the evidence – CCI’s inconsistent positions, the timing of its decision, and its concern about rising health care costs -- and found it sufficient to support the jury’s conclusion that Ryl-Kuchar met her burden of proof on both the retaliation and interference claims. The Court remanded for calculation of a fee award.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LUCTERHAND v. GRANITE MICROSYSTEMS, INC. (April 28, 2009)

Mark Lucterhand was the Director of Global Operations for Granite Microsystems, Inc. (GMI). In late 2004, he fell and seriously injured his leg while at work. Daniel Armbrust, GMI's president, witnessed the accident but nevertheless forced Lucterhand to attend a scheduled business meeting. When finally allowed to do so, Lucterhand went to the hospital, had surgery and spent several days recovering. Armbrust fired Lucterhand a few days after he returned to work. Lucterhand sued GMI and Armbrust for intentionally terminating his employment in retaliation for exercising his FMLA rights. He also brought state law claims for false imprisonment and intentional infliction of emotional distress. Federal Insurance Company and Vigilant Insurance Company insured GMI under a variety of policies.. GMI tendered the lawsuit. The insurance companies refused the tender, intervened in the lawsuit, and sought and received a declaratory judgment that there was no coverage. GMI appeals.

In their opinion, Judges Ripple, Sykes and Tinder affirmed. Wisconsin law, which governs the suit, requires an insurer to defend an insured if the allegations of the complaint raise the possibility of coverage. The Court examined the allegations of the complaint to make that determination. The complaint contained allegations of intentional conduct -- that GMI intentionally terminated Lucterhand and that it intentionally inflicted emotional distress and falsely imprisoned him. Insurance policies generally do not cover losses that are the result of intentional conduct. Here, the policies cover losses incurred only as the result of an “accident." The Court recognized the debate between courts that hold that an act is an "accident" if the resulting damage is unintentional and courts that hold that an unintended consequence is irrelevant if the act itself was intentional. In fact, the Wisconsin Supreme Court issued two opinions recently on the issue. Although the decisions produced many different opinions and left some unresolved issues, the Court concluded that they provided enough guidance to resolve the case. The complaint alleges both the intent to act and an intent to harm. As such, the losses are not accidental and, under Wisconsin law, the insurance companies have no obligation to defend.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

COLE v. STATE OF ILLINOIS (April 7, 2009)

Dynetta Cole was a receptionist for the State of Illinois. Her first year on the job was marked with many complaints about her performance, attendance and personality. After she was injured in a car accident, she took FMLA medical leave. She returned to work on a part-time basis after several weeks. Her performance and attendance issues continued. Cole’s supervisors ultimately presented her with an "employee improvement plan." The plan identified her attitude, her attendance and her performance as targeted areas for improvement. The plan required her to communicate more frequently about her schedule, become more aware of her tone and plan her daily schedule more efficiently. Her supervisors told Cole that she would be fired if she did not sign the plan. Cole refused to sign the plan -- Cole was fired. Cole brought suit against the State and her supervisors alleging retaliation for exercising her FMLA rights. The district court granted summary judgment to the defendants. Cole appeals.

In their opinion, Judges Manion, Evans and Tinder affirmed. The FMLA, stated the Court, makes it unlawful to terminate an employee for using FMLA leave. Cole chose the direct method of proof which required either an admission of discrimination or a "convincing mosaic" of circumstantial evidence that would allow the jury to infer discrimination. The Court agreed with the district court that Cole presented no evidence to suggest that her termination was anything more than her supervisors’ response to her refusal to sign the plan. Although her termination followed shortly after her leave, the Court noted that proximity in time by itself is rarely enough to create a material fact dispute. The court also rejected Cole's argument that the improvement plan itself constituted an adverse employment action. An adverse employment action must be one that would dissuade a reasonable employee from exercising her rights under the FMLA. Here, the improvement plan was merely her employer’s reasonable approach to improve her attitude and performance.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

CRACCO v. VITRAN EXPRESS, INC. (March 17, 2009)

Kevin Cracco was a truck terminal manager at Vitran Express. In late 2006, he was hospitalized with a serious health condition and went on FMLA leave. Cracco's duties were performed by other employees during his absence. The replacement employees discovered a host of problem’s during Cracco’s absence: damaged freight, safety lapses and general disorganization. Vitran's further investigation also discovered falsified freight records. The company terminated Cracco's employment upon his return from leave. Cracco filed suit, alleging that the company violated his FMLA rights. The district court entered a default order when Vitran failed to respond. The court later vacated the default and granted summary judgment to Vitran. Cracco appeals.

In their opinion, Judges Ripple, Manion and Sykes affirmed. The Court first affirmed the district court's order vacating the default. It found Vitran’s statement in its motion that Cracco was fired for cause sufficient to meet the liberal meritorious defense requirement of Rule 55. The Court also rejected Cracco's argument that the district court improperly deemed admitted a paragraph of Vitran’s Rule 56.1 statement of material facts. The paragraph contained multiple statements relating to the problems discovered at the terminal during Cracco’s leave. The Court conceded that the lower court could have required Vitran to unbundle the allegations. It concluded that the court did not abuse its discretion in requiring Cracco to respond to the paragraph, however. The Court then addressed the summary judgment ruling. With respect to the direct method of proof, Cracco attempted to establish a causal connection between his protected activities and his termination. He relied on the fact that he was terminated immediately upon his return from leave. The Court rejected the argument, concluding that the discovery of the performance problems during his leave negated any inference of causal connection. The Court concluded that Cracco was unable to establish two prongs of the indirect method of proof test: a) that he met his employer’s expectations and b) that he was treated less favorably than a similarly situated employee. Finally, because Cracco presented no evidence that he would have retained his job had he not taken FMLA leave, his interference claim failed as well.

• Email This
• Print
• Comments
• Trackbacks
• Share Link