Opinion
No. 99 C 8372.
January 12, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff James Sewall ("Sewall") filed a three count complaint on December 23, 1999. Counts I and II allege a violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA") against the Chicago Transit Authority ("CTA"). Count III alleges a violation of the Americans with Disabilities Act against the CTA. On November 1, 2000, both parties filed separate motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On, November 8, 2000, this court dismissed Count III with prejudice pursuant to stipulation by both parties. For the reasons stated herein, Sewall's motion for summary judgment is DENIED and the CTA's motion for summary judgment is GRANTED.
STATEMENT OF FACTS
The following facts are undisputed and are taken from the defendant's Local Rule 56.1(a) (b) and plaintiff's Local Rule 56.1(a) (b) statements of undisputed material facts and accompanying exhibits.
The CTA hired Sewall as a Graphic Designer on November 24, 1997. John Sowchin ("Sowchin") was the manager of Publications Graphics at all times relevant to this complaint. November 24, 1997 through May 24, 1998 was a probationary period for Sewall at the CTA. At the time of Sewall's probation, there existed a company procedure which stated that employees on probation could be discharged without question if they were absent three times during their probation period. After working for the CTA for less than three months, Sewall was absent from work seven days from February 6, 1998 to February 17, 1998. In April, Sewall was absent three days from April 15, 1998 to April 17, 1998, and four days from April 30, 1998 to May 5, 1998. Instead of discharging Sewall, Sowchin decided in May of 1998 to extend Sewall's six month probation for an additional three months till August, 1998. After completing his probationary period, between October 26, 1998 and October 30, 1998 Sewall was absent from work for five days with bronchitis. On November 3, 1998, Sewall stated that he felt sick to a co-worker. Based on Sewall's representations, Sewall was accompanied to the CTA Medical Department by his co-worker where he was found to be by Dr. Irma Realiza, the head of the CTA Medical Department psychologically unfit to work. In his deposition, Sewall stated that he agreed with Dr. Realiza's determination that on November 3, 1998 he was psychologically unfit to work. Once an employee is found unfit to work, the Medical Department requires follow-up medical documentation from the employee's personal doctor before the employee can be found fit to return to work.
As a result of Dr. Realiza's determination, Sewall was considered a sick employee for the purposes of CTA's sick benefits. CTA's sick benefits include pay for employees who are considered disabled as defined under the plan. To obtain the disability payments a Disability Notice must be submitted to the CTA. Sewall submitted a Disability Notice with medical confirmation by his doctor on November 11, 1998. Sewall's doctor provided the following diagnoses in the Disability Notice (1) panic disorder, (2) adjustment disorder with depression and anxiety, (3) psychosis secondary to oral steroids. Sewall's doctor stated that he would not be able to return to work until after November 16, 1998. At that time, Sewall became eligible to receive disability payments from the CTA and received disability payments from the CTA until February 27, 1999.
On November 16, 1998, Sewall was admitted to Weiss Hospital. On November 17, 1998, Sewall phoned Sowchin to inform him that he had been hospitalized and did not know when he could return. Between November 17, 1998 through December 2, 1998, Sewall had no contact with CTA. On December 2, 1998 after Sewall had been released from the hospital, he stopped by the CTA but had no medical documentation with him regarding his ability to return to work or to explain his absence. Sowchin stated that Sewall looked "somewhat ill and confused" on December 2, 1998, and stated that Sewall was unable to state at that time when he would be able to return to work. Additionally, Sowchin stated that he provided Sewall with FMLA paperwork "in case he should decide that he needs it." Sewall also visited the CTA Medical Department on December 2, 1998, and Dr. Realize found that Sewall continued to be unfit for work. On December 16, 1998 Sewall returned his FMLA application and medical certificate to CTA. The medical certificate stated that Sewall was unable to work based on his condition which began on November 3, 1998. The certificate represented that Sewall would remain on leave for a "few weeks" after December 16, 1998.
On January 14, 1999 the CTA denied Sewall FMLA coverage because he was not an eligible employee at the time his leave commenced on November 3, 1998. The CTA determined that Sewall was not an eligible employee because Sewall did not have 12 months of service with the CTA before his leave began. Additionally, on January 14th, Sowchin requested that Sewall's position be opened up for hiring and that Sewall be placed in Area 605. At his deposition Sowchin testified that he made this request because it was not clear at all if or when Sewall would return as of January 14, 1999. Area 605 is an administrative leave classification that permits the CTA to fill a specific budgeted position while the normal holder of that position is on long-term disability leave. Area 605 employees, however, do not have the right to be restored to their former positions when they return to active service. The CTA instead attempts to put them in any appropriate, vacant slot. On February 15, 1999, Sewall's replacement began work at the CTA
Between December 16, 1998 and February 8, 1999 Sewall had no contact with the CTA. On February 8, 1999, Sewall stopped by the Medical Department at the CTA. Sewall provided a doctor's note to the medical personnel on hand which stated that he was fit to return to work. The CTA's medical personnel, however, found Sewall still psychologically unfit to return to work. Sewall's doctor then wrote another note to the CTA stating that Sewall was physically and mentally fit to return to work, and Sewall submitted that note to the CTA on February 12, 1999. On February 15, 1999, Sewall was designated as being fit to return to work by the CTA. On that same day, Sewall learned that he had been replaced but that he could apply to other jobs within the CTA. Sewall did not pursue any other employment with the CTA.
STANDARD OF REVIEW
Under Rule 56(c), 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). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for ajury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
ANALYSIS
The FMLA gives an eligible employee the right to take up to 12 weeks of unpaid leave during a 12-month period for the birth, adoption, or assumption of foster care of a child, or for the care of a spouse or immediate family member with a serious health condition, or for a serious health condition that prevents the employee from performing the functions of his or her job. 29 U.S.C. § 2612 (a)(1). The FMLA was enacted because Congress found, among other things, "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601 (a)(4). The Act is intended to "balance the demands of the workplace with the needs of families" and "entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601 (b)(1) (2). The FMLA seeks to accomplish these purposes "in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).
In this case Sewall argues that the CTA violated the FMLA where the CTA impermissibly failed to advise Sewall that they planned to "backdate" the first day that Sewall's FMLA leave was to commence to November 3, 1998, the day that Sewall was first determined unfit to work. Sewall contends that on December 2, 1998 he was eligible for FMLA leave and that since he did not submit his completed FMLA application until December 16, 1998, December 16th, should be the day when his FMLA leave should begin. In addition, Sewall argues that the CTA violated the FMLA when the CTA took a period of six weeks to decline Sewall's application for FMLA leave. Sewall argues that he relied to his detriment upon the CTA's inaction on his application, and therefore the CTA is estopped from denying him FMLA leave. Sewall contends that summary judgment in his favor is necessary as a matter of law as a result of either or both of CTA's alleged violations. Finally, Sewall argues that the CTA violated the FMLA because the CTA hired someone else to replace him while he was out on leave in retaliation against him for taking FMLA leave. Sewall fails to establish a genuine dispute of material fact as to any of the alleged violations and therefore Sewall's motion for summary judgment is denied.
The CTA argues that Sewall was not an employee eligible under FMLA at the time when Sewall's leave commenced. CTA asserts that as of November 3rd, Sewall had not worked for the CTA for 12 months and was therefore ineligible for FMLA leave. In addition, the CTA argues that Sewall suffered no detriment as a result of his leave, and fails to establish a prima facie case of retaliation because Sewall can prove no connection between the exercise of his rights and an adverse employment action. Additionally, the CTA argues that Sewall fails to rebut their legitimate, nondiscriminatory reasons for Sewall's adverse employment action. The record establishes that Sewall's leave began on November 3, 1998. The record also establishes that there is no genuine dispute of material fact as to Sewall's eligibility under the FMLA as of November 3rd. In addition, Sewall fails to establish a prima fade of retaliation under the FMLA. As a result summary judgment in favor of the CTA is necessary as a matter of law.
I. The CTA did not procedurally violate the FMLA
The threshold issue in this case is: On what date did Sewall's leave from the CTA begin? Once the date of Sewall's leave is determined simple mathematics will reveal whether Sewall had the requisite 12 months employment prior to that date and thereby an eligible employee under the FMLA. If Sewall's leave began on November 3rd, the date when Sewall was first determined unfit for work, then Sewall did not have the requisite 12 months of employment needed to be eligible under the FMLA. The CTA would not have violated the FMLA, nor could the CTA retaliate against Sewall for taking FMLA leave for which Sewall was ineligible, and summary judgment in favor of the CTA would be necessary as a matter of law. However, if Sewall's leave began on December 16th, when he finally turned in his FMLA application, then Sewall's leave would have FMLA eligible, the CTA would have violated the FMLA and summary judgment in favor of Sewall would be necessary as a matter of law. The undisputed facts in this case establish that Sewall's leave began on November 3rd and therefore he was ineligible for FMLA leave. As a result, any alleged subsequent violations of the FMLA by the CTA would not qualify Sewall for benefits for which he was otherwise ineligible in the first place and summary judgment in favor of the CTA is necessary as a matter of law.
Under the FMLA an eligible employee means: (1) an employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence; and (2) who, on the date on which any FMLA leave is to commence, has been employed for at least 1,250 hours of service with such employer during the previous 12-month period. Additionally, under the FMLA, FMLA leave is to commence on an employee's or employer request, or at the onset of a "serious health condition" which includes, but is not limited to, an illness, injury, impairment, or physical or mental condition that involves "a period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days,". 29 C.F.R. § 825.114 (a)(2)(i).
It is undisputed that Sewall worked the requisite 1,250 hours with the CTA before his leave commenced thus meeting the first prong necessary to determine whether an employee is eligible for FMLA leave. As for the second prong, however, the CTA argues that Sewall's date began on November 3, 1998, the date in which Sewall was first deemed unfit for work and sent home. Sewall argues that his leave began sometime in December, 1998, either on December 2nd when he first received his FMLA application or on December 16th when he turned his FMLA application in. The undisputed facts of this case reveal that on November 3, 1998, Dr. Realiza, the head of the CTA Medical Department, found Sewall psychologically unfit to work.
Sewall, however, argues other facts on the record. Sewall argues that on December 2, 1998, Sewall stopped by the CTA office, not to return to work, but to discuss his ability to return to work and explain his absence from work since November 3rd. The facts state that Sewall looked "somewhat ill and confused" on December 2nd, and was unable to tell Sowchin when he would be able to return to work. (Sowchin Transcript at p. 37). Sewall argues that December 2, 1998 is important because on that day Sowchin gave to Sewall the FMLA paperwork. The undisputed facts establish that Sowchin gave Sewall the paperwork "in case he [Sewall] should decide that he [Sewall] needs it." Id. Sewall argues, however, that Sowchin directed Sewall to apply for leave under the FMLA. Sewall argues that since Sowchin told Sewall to apply to FMLA that thereby sets the date of FMLA leave to commence as either December 2nd when Sewall received the paperwork, or perhaps even December 16th when Sewall finally turned in the paperwork. Sewall argues that on either day in December he met the eligibility requirements for FMLA leave. In his argument Sewall asks this court to focus on when and from whom Sewall received his FMLA paperwork and disregard the date when Sewall was deemed unfit for work. Sewall's argument is without merit.
Under the FMLA, the date in which Sewall's leave would have commenced, if Sewall was an eligible employee, would have been November 3rd. An employee is entitled to FMLA leave at the onset of a "serious health condition." See 29 C.F.R. § 825.114 (a)(1) (defining serious health condition). In this case that serious health condition was Sewall's illness that caused him to be unfit to work, and caused him to miss work from November 3, 1998 until February 16, 1999. There is absolutely no law supporting a finding that Sewall's leave should have began, almost a full month after November 3rd, on December 2nd when Sowchin simply handed Sewall the FMLA application or on December 16th when Sewall actually completed the FMLA application, six weeks into his sick leave.
If this court were to accept Sewall's argument that December 2nd or December 16th is the appropriate date on which his leave under the FMLA should commence, this court would be allowing Sewall a windfall of 4 or 6 weeks of sick leave. To accept Sewall's argument would be to grant an employee, who is otherwise ineligible for leave under FMLA, to take sick leave until such time, in this case 4 weeks, as the employee became eligible under the FMLA then apply for FMLA leave. This interpretation would be contrary to the spirit and the letter of the FMLA and is therefore rejected. The undisputed facts in this case establish that Sewall's leave began on November 3rd. As of November 3, 1998, Sewall was not eligible for FMLA leave. As a result, both counts remaining in Sewall's complaint are without merit and summary judgment in favor of the CTA is appropriate as a matter of law.
A. The CTA did not backdate Sewall's FMLA application
Sewall's first argument in favor of summary judgment is that the CTA violated the FMLA when it attempted to "backdate" his FMLA to November 3rd. Despite that fact that it is clear from the record that Sewall's leave actually began on November 3rd, Sewall argues that as of December 2, 1998, he was eligible for FMLA, having been employed with the CTA since November 24, 1997. Sewall argues that since his application was received and returned on December 16th, then December 16th should be the started date. Sewall states that the CTA attempted to apply his FMLA leave retroactively, and therefore must have advised him of such retroactive designation within two business days, or those "backdated" days cannot be counted against his leave. Sewall cites 29 C.F.R. § 825.08 in support of this argument. Again Sewall asks this court to pick a date in the middle of his absence to determine the beginning of his FMLA leave. Sewall implies in this argument that FMLA leave can only be induced by an express sentiment by the employee or by the employer. This argument must be rejected for similar reasons as discussed above.
An employee "need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed." 29 C.F.R. § 825.302 (c); Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 971 (7th Cir. November 29, 2000). An employer may place an employee on FMLA leave "involuntarily," that is, even if the employee does not request such leave, as long as that employee is "eligible" for leave and then takes a qualified absence from work. So as of November 3rd, when Sewall was deemed unfit for work, if Sewall was an eligible employee the CTA could have deemed Sewall's absence as FMLA leave without Sewall's express request for FMLA rights. As a matter of law the CTA did not violate 29 C.F.R. § 825.08 because the CTA did not seek to retroactively apply the FMLA. The CTA instead correctly determined the date on which Sewall became unfit to work as November 3rd. The record reveals that Sewall stated in his FMLA application dated December 16, 1998, that November 3, 1998, was the date in which the condition that made him unfit to work commenced. Additionally, the record reveals that Sewall testified in his own deposition that "November 3rd was the date of the beginning of all this disability." (Sewall Transcript at p. 96). Under the FMLA November 3rd would have been the day Sewall's leave would have began had Sewall been an eligible employee, Sewall's FMLA application states that November 3rd was the day, and Sewall's admissions state that November 3rd was the day. There is absolutely no evidence in this case to support any other date for Sewall's potential FMLA to begin other than November 3rd. Therefore, Sewall's "backdating" argument is without merit and summary judgment in favor of Sewall is denied as a matter of law on this issue.
B. The CTA's silence did not cause any detrimental reliance
Sewall's second argument in favor of summary judgment is that the CTA violated the FMLA when it took a period of six weeks to deny Sewall's application for FMLA leave under 29 C.F.R. § 825.110 (d). Sewall's argument is that he should be deemed eligible for FMLA leave since the CTA failed to advise him whether he was eligible for leave and because he relied to his detriment that he was on FMLA leave. The United States Court of Appeals for the Seventh Circuit stated in Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 583 (7th Cir. July 24, 2000) that regulation 29 C.F.R. § 825.110 (d) is "not only unauthorized [by the Department of Labor]; it is unreasonable." Id. In Dormeyer, the plaintiff shortly after she became pregnant, requested leave under the FMLA on the basis of her morning sickness. 223 F.3d at 581. At the time of her request, the employee plaintiff was not an employee eligible for leave under the FMLA. The employer-defendant did not respond to the employee-plaintiff's request at all and that nonresponse was the basis of the plaintiff's FMLA case. Id. The plaintiff argued, that because the defendant's violation of 29 C.F.R. § 825, 110(d) relieved her of the eligibility requirements stated in the FMLA. The Seventh Circuit held that 29 C.F.R. § 825.110 (d) did not relieve the plaintiff of statutory requirements of the FMLA. The Seventh Circuit upheld summary judgment in favor of the defendant-employer and stated that any interpretation of or reliance on 29 C.F.R. § 825.110 (d) which avoids the stated employee eligibility requirements of the FMLA and allows an employee to claim benefits to which she is not entitled is unreasonable as a matter of law and without any basis in legal principle. In this case, Sewall, similar to the plaintiff in Dormeyer, argues that his reliance occurred when the CTA did not promptly process his application.
Relying on dicta in Dormeyer, Sewall attempts to establish an estoppel argument against the CTA to prevent the CTA from denying him FMLA leave. Sewall's argument is that since it took the CTA six weeks to process his application for FMLA leave in violation of 29 C.F.R. § 825.110 (d) he assumed that we was covered by the FMLA. Sewall argues that the CTA "tricked" him into applying for FMLA leave and further "tricked" him into believing that he was eligible for FMLA leave. Sewall asserts that his reliance caused him to remain on leave from the CTA until February 16, 1999 and that had he known that he did not qualify for FMLA leave we would have returned to work earlier. As proof of his detrimental reliance, Sewall offers his own affidavit. This argument is filled with logical flaws and is without merit. Despite Sewall's attempts to avoid the holding in Dormeyer, it appears that the holding in Dormeyer aptly applies to the facts of this case. Sewall's argument of the facts boils down to the same argument as the plaintiff's in Dormeyer, that since the CTA violated 29 C.F.R. § 825.110 (d) that violation relieves a plaintiff of the obligation to meet the eligibility requirements under the FMLA. The Seventh Circuit rejected that argument in Dormeyer and affirmed summary judgment in favor of the employer. Similarly, based on Dormeyer this court rejects Sewall's argument, denies Sewall's motion for summary judgment on Count I and grants summary judgment in favor of the CTA as to Count I.
The Seventh Circuit in Dormeyer stated that where it is clear that an employee has relied upon an employer's inaction, the employer may be estopped from denying FMLA protection. 223 F.3d at 582. The Court stated:
An employer who by his silence misled an employee concerning the employee's entitlement to family leave might, if the employee reasonably relied and was harmed as a result, be estopped to plead the defense of ineligibility to the employee's claim of entitlement to family leave. Id.
Looking at the facts of this case, there is insufficient evidence to support a finding as a matter of law that Sewall reasonably relied on the CTA's silence as to his FMLA application, or that Sewall actually relied on the CTA's silence.
First, the facts of this case establish that it was unreasonable for Sewall to interpret the CTA's silence as qualifying him eligible for FMLA leave. It is undisputed that Sewall believed he was unfit to work starting from November 3, 1998 and the record states that Sewall testified in his own deposition that "November 3rd was the date of the beginning of all this disability." Additionally, Sewall's application had November 3rd as the beginning date for his FMLA leave. Finally, it is undisputed that Sewall knew on November 3rd that he had not worked for the CTA for 12 months. So since the record shows that Sewall believed that November 3rd to be the beginning of his leave, and the record shows that Sewall knew that as of November 3rd he had not worked with the CTA for 12 months, there is no way that the record can also show that Sewall reasonably relied on the notion and believed that when he turned in his application FMLA for leave on December 16th, that he qualified for leave. As a result, the CTA's silence concerning his FMLA application should have lead Sewall to reasonably to believe that he was ineligible to receive FMLA, since the undisputed facts of the case establish that Sewall should have known when he turned in his FMLA application that he did not qualify. Furthermore, there is insufficient evidence to support a finding of any fraud or misleading by the CTA which would have induced Sewall to reasonable rely on the CTA's silence. Since that is no evidence of fraud on the record, and this no evidence of reasonable reliance on the record, Sewall's detrimental reliance theory must fail.
Second, there are insufficient facts to establish that Sewall actually relied on the CTA's silence to extend his leave. Sewall argues through his own affidavit that he would have returned earlier had he know that he was not covered by the FMLA. The facts reveal that Sewall was not cleared to return to work until February 8, 1999, by his own doctor and until February 15, 1999 by the CTA. There are no other facts in this case, outside of Sewall's own self-serving statements, to establish that Sewall was ready for work earlier than February 8th. Therefore, Sewall fails to establish his reliance on the CTA's silence as causing him to stay out on leave until February 8th.
Sewall's attempts to use 29 C.F.R. § 825.110 (d) to circumvent the eligibility requirements of the FMLA and secure a windfall of benefit to which he was not entitled is unreasonable and merits summary judgment in favor of the CTA. Additionally, there are insufficient facts on the record to support a finding of fraud on the part of the CTA, or of reasonable reliance or of detrimental reliance by Sewall as a matter of law. As a result, Sewall's detrimental reliance theory of recover under the FMLA must fail and his motion for summary judgment must be denied as a matter of law.
II. The CTA did not retaliation against Sewall
A plaintiff alleging retaliatory discharge under the FMLA "must . . . establish that the employer engaged in intentional discrimination," similar to other retaliatory discharge cases. King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999). Sewall argues that Sowchin's action in hurrying to hire two new graphic designers just before Sewall was to return from his leave constituted retaliation in violation of the FMLA. To prove a case of retaliatory discharge, an employee must show that: 1) the plaintiff availed self of a protected right under the FMLA; 2) the plaintiff was adversely affected by an employment decision; and 3) that there is a causal connection between the protected activity and the adverse employment action. Id.; see also Routes v. Henderson, 58 F. Supp.2d 959, 979 (S.D. Ind. 1999). The burden is on the plaintiff to provide sufficient facts to establish each element. Id. If the plaintiff establishes his prima facie case the burden of producing legitimate nondiscriminatory reasons for the adverse action shifts to the employer-defendant. King, 166 F.3d 887 at 892. Once the defendant produces those reasons, the employee-plaintiff bears the burden of showing that defendant's proffered reasons are pretext. Id. In this case, Sewall fails to establish a genuine issue of material fact that his leave was covered by the FMLA, as discussed above. Since, Sewall's leave was not covered by the FMLA, the CTA could not have retaliated against Sewall for taking FMLA leave, as Sewall alleges in his complaint. As a result, Sewall's motion for summary judgment must be denied on Count II and summary judgment in favor of the CTA must be granted on Count II as a matter of law.
In the alternative, Sewall fails to establish the first and third elements necessary to a prima facie case of retaliation under the FMLA and fails to rebut the legitimate, nondiscriminatory reasons offered by the CTA. Therefore, Sewall's motion for summary judgment is denied and the CTA's motion for summary judgment is granted as to Count II.
In order to establish the first element, Sewall must prove that he availed himself of protection under the FMLA. The record in this case, however, proves that starting on November 3, 1998, Sewall took leave without asserting rights under the FMLA. Again employees do not have to expressly assert the FMLA to gain FMLA protection. However, the record reveals that as of November 3rd, Sewall did not qualify for FMLA and therefore he could not have sought FMLA protection as of November 3rd. Furthermore, there is no evidence on the record to establish that Sewall believed he was asserting FMLA rights as of November 3rd when his leave began. Taking all inferences in favor of Sewall, at best Sewall believed to be asserting FMLA rights as of December 16th until February 8th. The record shows, however, that Sewall leave extended from November 3rd until February 8th and was unfit to return to work during that time, regardless of the FMLA and not pursuant to the FMLA. Therefore, since there is insufficient evidence on the record to establish that Sewall asserted or believed to be asserting FMLA rights when his leave commenced, Sewall fails to establish the first element necessary to a prima facie case of retaliation and summary judgment in favor of the CTA in necessary as a matter of law.
As to the third element necessary to establish a prima facie case of retaliation under the FMLA, the "causal link" between the protected activity and adverse employment action is demonstrated by showing that the employer would not have taken the adverse action "but for" the employee's protected activity. King, 166 F.3d at 892. Evidence of temporal proximity between the protected activity and the adverse employment action can be used to prove such discrimination. Id. at 893. Statements by a supervisor that reveal animus against the employee for exercising a protected right also can suffice to show discrimination.See Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996). Sewall relies only on the fact that his replacement at the CTA started on February 16, 1999, the first day he was to return to work as proof of retaliation. Sewall fails to establish facts on the record that the CTA replaced him specifically because he went on FMLA leave. The record reveals that Sewall was replaced because he had been on leave since November 3rd and that as of January 26, 1999, 12 weeks after Sewall was deemed unfit to work, no one at the CTA knew when or if Sewall would ever return. The record reveals the Sewall did not notify the CTA at any time after December 16th of when he expected to return to work. Therefore, Sewall cannot establish that the CTA replaced him because of his taking FMLA leave. The facts stated that the CTA had no way of knowing when or if Sewall would ever return to work, regardless of the FMLA.
Additionally, there are no facts on record to establish any animus on the part of the CTA concerning Sewall's leave. In fact the record reveals that the CTA paid Sewall disability benefits the entire time he was out on leave, and encouraged Sewall to pursue other employment at the CTA when he was finally found fit to return to work. Evidence that Sewall's job was replaced on the same day he returned to work alone is insufficient to prove the third element necessary to establish a prima facie case of retaliation. Sewall fails to prove any of animus on the part of the CTA or fails to prove that the CTA knew when Sewall was returning to work and deliberately replaced Sewall because he was on FMLA leave. As a result, summary judgment in favor of the CTA is necessary as a matter of law.
Even assuming, arguendo, that Sewall did establish a prima facie case of retaliation under the FMLA, Sewall fails to rebut the legitimate nondiscriminatory reasons for the CTA's adverse employment action. Under 29 C.F.R. § 825.214 (b) an employee who cannot return to work at the end of the approved leave is not entitled to job restoration. Assuming that Sewall, would have qualified for FMLA leave, there record clearly establishes that Sewall's leave would have began on November 3rd and the record clearly establishes that Sewall was out until February 8th, a total of 13 weeks. The FMLA only allows a maximum of 12 weeks. Sewall presents no evidence to rebut the CTA's position that the CTA management had no idea as to when Sewall would return work and no idea what condition Sewall would return in as of December 16, 1998. Consequently, the CTA was under no obligation to restore Sewall to his former position after January 26, 1999, twelve weeks after Sewall first left work at the CTA on November 3rd. Sewall fails to rebut the legitimate, nondiscriminatory reasons of the CTA for replacing Sewall's job and fails to establish a prima facie case of retaliation under the FMLA. As a result, Sewall's motion for summary judgment must be denied and summary judgment in favor of the CTA is necessary as a matter of law.
CONCLUSION
For the above stated reasons, Sewall's motion for summary judgment is DENIED and the CTA's motion for summary judgment is GRANTED. This case is dismissed in its entirety with prejudice. All pending motions are DENIED as moot. All previous dates and schedules are moot.