Opinion
Case No: 00 C 7144
February 11, 2002
MEMORANDUM OPINION AND ORDER
Before this court is defendant's, Catholic Health Partners Services, a/k/a Columbus Hospital and St. Joseph Hospital ("Hospitals"), motion for summary judgement against plaintiffs, Mary O'Grady ("O'Grady") complaint alleging violations under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Fair Labor Standards Act, 29 U.S.C. § 201 ("FLSA"), and the Illinois Wage Payment and Collection Act, 820 LLCS 115/1 et seq. For the following reasons, the defendant's motion is denied.
Statement of Facts
O'Grady began working as a Risk Manager at Hospitals on October 16, 1995. In 1997, the plaintiffs' title changed to Risk Manager Northside. The Risk Manager consults, develops, or directs the implementation of risk management intervention to reduce potential loss, including but not limited to actions to be taken in response to patient distress, treatment procedures and health emergencies. Specifically, as Risk Manager North Side, plaintiff oversaw day-to-day risk management activities of the hospital, including evaluations of incident reports, educating staff and physicians regarding risk management procedures, and assisted in claims management. As Risk Manager Northside, plaintiff carried a pager and had a 24-hour accountability to respond to calls from the hospitals. Although O'Grady was classified as a salaried employee, exempt from overtime pursuant to FLSA, her job was maintained on an hourly basis with time cards and she was paid on an hourly basis when she worked less than 8 hours per day. Both Hospitals and O'Grady qualified under the FMLA as an eligible employer and eligible employee, respectively, at that time.
O'Grady began to miss time from work starting September 29, 1999 through November 4, 1999. She did not request, however, leave under FMLA at this time because she believed the illness to be self-limiting. During these absences, O'Grady called in to her supervisor at the time, Peggy Heinrich ("Heinrich"), and left voice mail messages that she would not be coming into work.
On November 4, 1999, O'Grady left work because she was ill. On that same day, O'Grady called Heinrich from a car phone from a doctor's parking lot and told Heinrich to facilitate a leave under the FMLA. Ms. Heinrich said that she would. On November 5, 1999, Tove Powell ("Powell"), responsible for administering employee requests under FMLA, sent a form to the plaintiff to be filled out for her requested leave under the FMLA.
The plaintiff was hospitalized from November 5-7, 1999 and from November 18-22, 1999, for general surgery to extract, incise and drain two teeth. Although O'Grady initially requested that she be granted intermittent leave under the FMLA dating back to September, the form approving her request for FMLA leave only reflects the November hospitalization dates. O'Grady received a letter from Powell, dated November 27, 1999, advising that her request for leave under the FMLA had been granted for November 5-7, 1999, and November 18-22, 1999, and that her request for intermittent FLMA leave had been granted for November 18-December 15, 1999. Subsequently, all of O'Grady's time, dating back to September 1999, was included in her leave requested pursuant to FMLA.
After speaking with an attorney and performing calculations, Sarah Piekielny ("Piekielny"), Director of Employment-Employee Relations in the Human Resources Department of Hospitals, and Heinrich determined that the Hospitals could exercise their option to designate plaintiff a "key employee" under FMLA and they would not have to restore her to her original position. At a November 30, 1999, meeting with Heinrich and Miller, O'Grady was advised that she was a "key employee" under the FMLA, and consequently, while she would be granted her requested leave under th FMLA, they could not guarantee that they could keep her position open because it would cause economic injury and harm to the organization. The plaintiff was advised during that meeting that Hospitals would seek a replacement for her unless she was able to return to work soon.
Believing that her job was on the line, O'Grady informed Heinrich that she would return to work part-time on Thursday of that week, to resume full-time employment the following week, and Heinrich agreed O'Grady did not return to work that Thursday, December 2, 1999, and left a voice mail message for Heinrich informing her that she ill and that she could not come in to work. Later that day, O'Grady received a call from Heinrich, Piekielny, and Miller advising her position would be in jeopardy if she did not return to work the following Monday. Following the December 2, 1999, meeting, O'Grady understood that although her position might be filled, she was still granted full leave under the "FMLA" and then would receive leave under the Medical Leave of Absence Policy, and understood that she was still eligible for benefits.
On the following Monday, December 6, 1999, Heinrich agreed to allow the plaintiff to work part-time, instead of full-time, beginning December 6, 1999. O'Grady came to work on December 6, 1999, and at that time, she signed a letter confirming the part-time schedule understanding that she would lose her job if she did not sign. The plaintiff continued working until December 20, 1999, when she called in sick. Plaintiff returned to work following her December absence and then missed work in January, including January 3-5, 2000. O'Grady was re-hospitalized over the weekend of January 8-9, 2000, at West Suburban Hospital for corornary symptoms. Plaintiff telephoned Heinrich at home during this hospitalization and advised that she would not be able to come in on Monday, January 10, 2000.
On January 10, 2000, Piekielny wrote a letter to O'Grady advising her that if she forwarded the required physician certification to Powell by January 14, 2000, her January absences would be counted toward her intermittent leave under the FMLA. O'Grady returned to work on January 11, 2000, but did not return after Thursday, January 13, 2000. Subsequently, O'Grady received a letter from Piekielny stating that she would need to fill the position and would be extending an offer to another candidate and reiterating that the plaintiff was considered to be a "key employee" under the FMLA.
O'Grady received the full 12 weeks leave allowed pursuant to the FMLA and received all the paid time off she had accrued. Her position as Risk Manager Northside was filled on February 1, 2000. O'Grady did not have any contact with her employer about her position from late February 2000 to April 28, 2000. On April 28, 2000, O'Grady's extension of leave under the Medical Leave of Absence ("MLA") expired and she spoke with Miller. As a result of believing that she was no longer employed by Hospitals, plaintiff did not provide any medical certification to Hospitals regarding her current health status. Plaintiff sough disability benefits. The next time O'Grady spoke with Heinrich, Piekielny, and Miller was at her employment benefits hearing in June 2000. O'Grady's claim for disability benefits was denied because the medical certification reasons were unclear. She did not appeal the decision rejecting her application for disability benefits, nor did she provide them with any further certification or documentation.
The plaintiff received a letter from Hospitals indicated that September 18, 2000 was her cut-off date from inactive employment at the Hospitals.
Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. The non-movant cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The non-movant "`must do more than simply show that there is some metaphysical doubt as to the material fact'" Id.. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A scintilla of evidence in support of the nonmovant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
Analysis
I. The Family Medical and Leave Act
The defendants argue that the plaintiff cannot prove that the defendants discriminated against her and violated the Family Medical Leave Act 29 U.S.C. § 2601 et seq. ("FMLA"), the Fair Labor Standards Act, 29 U.S.C. § 201 ("FLSA"), and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. This court disagrees.
The FMLA provides that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the Act. 29 U.S.C. § 2615 (a)(1). Under the Act, eligible employees may take twelve work weeks of leave within a twelve month period in the event that the employee suffers from a "serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612 (a)(1)(D). At the conclusion of the qualified leave period, the employee is entitled to reinstatement to the position the employee previously held or to an equivalent one with the same terms and benefits that existed prior to the exercise of leave. 29 U.S.C. § 2614 (a). In certain circumstances, however, the Department of Labor Rules and Regulations allow an employer the right to fill the position prior to when an employee returns from leave:
c) In addition to the circumstances explained above, an employer may deny job restoration to salaried eligible employees ("key employees," as defined in paragraph (c) of § 825.217) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; or may delay restoration to an employee who fails to provide a fitness for duty certificate to return to work under the conditions described in § 825.310.29 C.F.R. § 825.216. The applicable Rules and Regulations set forth the factors for determining whether or not an employee qualifies as a "key employee":
(a) A "key employee" is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite.
(b) The term "salaried" means "paid on a salary basis," as defined in 29 C.F.R. § 541.118. This is the Department of Labor regulation defining employees who may qualify as exempt from the minimum wage and overtime requirements of the FLSA as executive, administrative, and professional employees.
(c) A "key employee" must be "among the highest paid 10 percent" of all the employees — both salaried and non-salaried, eligible and ineligible — who are employed by the employer within 75 miles of the worksite.
(1) In determining which employees are among the highest paid 10 percent, year-to-date earnings are divided by weeks worked by the employee (including weeks in which paid leave was taken). Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses. Earnings do not include incentives whose value is determined at some future date, e.g., stock options, or benefits or perquisites.
(2) The determination of whether a salaried employee is among the highest paid 10 percent shall be made at the time the employee gives notice of the need for leave. No more than 10 percent of the employer's employees within 75 miles of the worksite may be "key employees."29 C.F.R. § 825.217.
A. Count I — Denial of Substantive Rights Under the FMLA
With respect to the plaintiffs' contention that Hospitals denied her the substantive rights guaranteed under the FMLA, both the plaintiff and Hospitals agree that (1) the plaintiff was an "eligible employee" under the FMLA; (2) Hospitals is an "employer" subject to the FMLA; and (3) plaintiff was entitled to leave under the FMLA. The sole issue in Count I is whether Hospitals denied plaintiff a benefit to which she was entitled.
To succeed on an FMLA claim, Plaintiff must prove by a preponderance of the evidence (1) that she is an eligible employee under the FMLA; (2) that the defendant is an employer under the FMLA; (3) that she is entitled to leave under the FMLA; and (4) that defendants improperly denied her leave under the FMLA. Dormeyer v. Comerica Bank of Illinois, 1997 WL 403697 (N.D. Ill. 1998).
1. Failure to Provide Plaintiff with Leave Entitled Under the FMLA
The plaintiff argues that Hospitals denied her FMLA leave from September 1999 and forced her to take intermittent leave from November 18, 1999 to December 15, 1999 and thereby denied her right to take 12 weeks of continuous leave under the FMLA. The defendant contends that the dates on which the plaintiff took leave under the FMLA were the dates she requested and agreed to, and for which she had obtained medical authorizations. The defendant further asserts that once the plaintiff obtained further medical authorizations, the plaintiff's leave dating back to September 1999 was included in her FMLA leave.
The FMLA includes a mechanism by which an employer may ascertain whether an employee's absence qualifies as FMLA leave; specifically, "[a]n employer may require that a claim that an employee is unable to return to work because of the continuation, recurrence, or onset of [a] serious health condition . . . be supported by . . . a certification issued by the [employee's] health care provider." 29 U.S.C. § 2614 (c)(3)(A). The federal regulation interpreting the certification provision of the Act states that if the certification is inadequate, "[t]he employer shall . . . provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305 (d); see Strickland v. Water Works and Sewer Rd. of City of Birmingham, 239 F.3d 1199, 1209 (11th Cir. 2001).
Therefore, according to the implementing regulations, Hospitals is entitled to require that an employees' serious health condition be verified by at least one medical certification before such employee may take leave under the FMLA. In this case, Hospitals exercised its right. Once the plaintiff provided Hospitals with a second certification from Dr. Luskin-Hawk, demonstrating that her absences prior to the November hospitalizations were related to her serious health condition, Hospitals adjusted O'Grady's FMLA approval to correctly show her continuous illness from September 1999.
2. Failure to Restore Plaintiff an Equivalent Position
O'Grady also argues that the defendant denied rights under FMLA by failing to restore her to an equivalent position following her illness in violation of 29 U.S.C. § 2614. The defendant contends that O'Grady was properly classified as a "key employee" under the FMLA, and therefore she was not entitled to restoration of her job. O'Grady claims that there is a genuine issue of material fact as to (1) whether plaintiff was actually a "key employee" (2) whether restoring plaintiff to her position would have caused Hospitals significant and grievous economic injury, and (3) whether defendant provided adequate notice to plaintiff that it was classifying her as a key employee.
The defendant also argues that the issue of whether the O'Grady was a "key employee" is moot since O'Grady did not return to work. In this court's view, however, there is an issue of fact as to whether O'Grady did not return to work because Hospitals did not provide O'Grady with her an equivalent position to which she may have been entitled.
As stated above, a "key employee" is a salaried eligible employee who is among the highest paid 10 percent of all employees — both salaried and non-salaried, eligible and ineligible — employed by the employer within 75 miles of the employee's worksite. 29 U.S.C. § 2614 (b)(2). Further, an employer may deny job restoration to salaried eligible employees key employees if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer. 29 C.F.R. § 825.216. Both parties agree that the plaintiff was classified as a salaried employee, exempt from overtime pursuant to ELSA, and she was not paid overtime to respond to pager calls. Despite being a salaried employee, however, the plaintiff maintained hourly time cards and was paid on an hourly basis when she worked less than eight hours a day. In addition, plaintiff asserts that despite the fact that plaintiff's base wages may have placed her among the highest paid ten percent, the plaintiff, in fact, did not fall into the highest ten percent when compared to the large number of employees who received thousands of dollars in overtime.
At the outset, in this court's view there is a genuine issue of fact as to whether O'Grady was properly classified as a "key employee" given the possibility that many hourly workers may have had yearly incomes far above the plaintiffs. Hospitals has not provided any evidence to resolve such an issue.
Further, with respect to the issue of a qualifying salaried employee, the Department of Labor's regulations define a salaried employee in some detail in the interpretations section to the regulations:
An employee . . . regularly receives each pay period on a weekly or less frequent basis, a predetermined amount constituting all or part of his [or her] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. . . . The employee must receive his [or her] full salary without regard to the number of days or hours worked.
29 C.F.R. § 541.118 (a). The salary must be a predetermined amount, and deductions may not be made "for absences occasioned by the employer or by the operating requirements of the business," such as "when work is not available." Id.. § 541.118(a)(1). Deductions from salary are permissible for absences greater than a day when the employee is absent for personal reasons, Id.. § 541.118(a)(2), or absent for sickness or disability when the employee has no more leave time. Id.. § 541.118(a)(3). Finally, the interpretations allow for "[p]enalties imposed in good faith for infractions of safety rules of major significance" without affecting an employee's salaried status. Id.. § 541.118(a)(5). "Safety rules of major significance include only those relating to the prevention of serious danger to the plant, or other employees, such as rules prohibiting smoking in explosive plants, oil refineries, and coal mines." Id..; see also Klein v. Rush-Presbyterian-St. Luke's Medical Center, 990 F.2d 279, 283 (7th Cir. 1993).
In this case, viewing the evidence in favor of the non-movant, there is a genuine issue of material fact as to whether O'Grady was properly classified a salaried employee under the FLSA. If in fact, Hospitals deducted her pay any day that she worked less than eight hours, then her classification as a "salaried employee" under the ELSA is suspect.
Even if the plaintiff was properly classified as a "key employee," there is a genuine issue of material fact as to whether restoring the plaintiff to her original position would have caused Hospitals "substantial and grievous injury." The regulations promulgated by the Department of Labor also address the "substantial and grievous economic injury" standard. Restoration may be denied only when restoration itself — not the employee's absence — will cause substantial and grievous economic injury. See 29 C.F.R. § 825.218 (a) (1999). "If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration." Id.. § 825.218(b). Although there is no precise test for substantial and grievous economic injury, see id. § 825.218(c), the standard is "different from and more stringent than the `undue hardship' test under the ADA," id. § 825.218(d). Finally, if restoration "threatens the economic viability of the firm" or "causes substantial, long-term economic injury," then the standard would be met but "[m]inor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not" meet the standard. Id.. § 825.218(c); see also Kephart v. Cherokee County. N.C., 229 F.3d 1142, 2000 WL 1086802, *1 (4th Cir. (N.C.)).
Instead of addressing the issue of whether restoring O'Grady would have caused Hospitals "substantial and grievous economic injury," Hospitals instead discusses the injury that potentially would have been caused to Hospitals if it had not found a replacement for the plaintiff. This, however, is not the relevant inquiry. Consequently, a genuine issue of fact remains as to whether restoring the plaintiff to an equivalent position would have caused Hospitals "substantial and grievous economic injury."
Therefore, the defendant's motion for summary judgement against the Count I of the plaintiffs' complaint is denied with respect to the issue of whether Hospitals improperly denied her leave under the FMLA by classifying her as a "key employee" or refusing to restore her to an equivalent position to which she was entitled.
B. Count II — Retaliation Claim
The defendant argues that O'Grady has failed to demonstrate any discriminatory intent on the part of the defendant to support her claim that Hospitals retaliated against her for exercising her rights in violation of the FMLA. This court disagrees.
The second category of FMLA claims are based on discrimination or retaliation for exercising right under the FMLA. In order to state a prima facie claim for retaliatory discharge under the FMLA, a plaintiff must show: (1) that she engaged in the statutorily protected activities; (2) she suffered an adverse employment action; and (3) there was a causal relationship between the protected activity and adverse action. Rizzo v. Sheahan, 266 F.3d 705, 714 (7th Cir. 2001). Upon this showing, the burden shifts to the defendants to present a legitimate, non-discriminatory reason for employee's' termination. Rizzo, 266 F.3d at 715. If the defendant is able to provide such a reason, the burden shifts back to the employee to demonstrate that employer's stated reason for terminating her was merely a pretext for retaliation. Id..
While both parties agree that O'Grady engaged in the statutorily protected activity, issues over whether O'Grady has established that she suffered an adverse employment and whether O'Grady has established a causal link between the protected activity and the adverse action remain.
Hospitals argues that O'Grady did not suffer any adverse employment actions. In support of her claim, O'Grady claims that an inference of retaliation can be drawn from the fact that Hospitals repeatedly told O'Grady that she would be replaced if she took full-time leave. And, in fact, when O'Grady chose to take full-time leave, Hospitals replaced her with someone who Hospitals intended to keep permanently. In support of its position, Hospitals contends that the plaintiff can not demonstrate any discriminatory intent because it offered O'Grady her job back and she never responded. The plaintiff contends that she never officially was re-offered her job by Hospitals, and therefore she believed that she had been terminated. Pending a determination as to whether O'Grady was an employee and therefore entitled to return to an equivalent position, the factual question of whether Hospitals actually presented O'Grady with her former is job is genuine and material. Secondly, Hospitals argues that O'Grady was never terminated but rather taken off the payroll upon the expiration of her leave under the FMLA, MLA and thirteen weeks of inactive status. O'Grady claims that she believed that she had been terminated. In this court's view, given there is a genuine issue of material fact as to whether Hospitals retaliated against O'Grady, on the basis of her choice to take full-time leave under the FMLA, Hospitals' reasons are not legitimate. Consequently, the defendant's motion for summary judgment against the plaintiffs' retaliatory discharge claim is denied.
II. Count III — Fair Labor Standards Act
The FLSA, 29 C.F.R. § 541.118, defines a salary as a form of compensation that is not subject to reduction because of variations in the quality or quantity of the work performed, nor can a salary take into consideration the number hours and days worked. As discussed above, in this court's view, there is a question as to whether O'Grady even qualified as a salaried employee under the FLSA, given that her compensation was deducted if she worked less than eight hours a day. Therefore, the defendant's motion for summary judgment against the plaintiff claim under the FLSA is denied.
III. Count IV — Illinois Wage Payment Collection Act
This court may exercise supplemental jurisdiction over the plaintiffs' claim under the Illinois Wage and Collection Payment Act. 28 U.S.C. § 1367 (a).
Conclusion
For the foregoing reasons, the defendant's motion for summary judgment is denied.