# Jones v. Illinois Department Of Corrections

> District Court, N.D. Illinois · June 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10142858

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** June 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10142858

## How later opinions describe it (automated extraction)

- holding that plaintiff had a triable FMLA retaliation claim where evidence supported a reasonable inference that he was fired for absenteeism and his employer had notice that those absences were attributable to his son's sickle cell anemia
- reversing summary judgment on FMLA retaliation claim where evidence was sufficient to support a finding that plaintiff had given his employer sufficient notice of a serious medical condition and was terminated for taking leave for that condition

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

NICHOLAS JONES, )
)
Plaintiff, )
)
vs. ) Case No. 18 C 2045
)
ILLINOIS DEPARTMENT OF )
CORRECTIONS, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Nicholas Jones has sued his employer, the Illinois Department of Corrections
(IDOC), alleging violations of his rights under the Americans with Disabilities Act (ADA)
and the Family Medical Leave Act (FMLA). IDOC has moved for summary judgment.
For the reasons stated below, the Court grants IDOC's motion.
Background
Jones has been working as a correctional officer at IDOC's Dixon Correctional
Center since January 7, 2013. Jones is a veteran, and he testified that he has been
diagnosed with post-traumatic stress disorder (PTSD). According to Jones, flare-ups of
his PTSD cause anxiety, depression, paranoia, and brain hyperactivity.
IDOC's attendance policy requires employees to seek advance approval for
absences, except in emergency situations.1 To use sick time, an employee must fill out

1 The undisputed facts describing IDOC's attendance policy in IDOC's Local Rule 56.1
Statement are based largely on the declaration of Kathy Newstrand, Human Resources
a Notice of Absence (NOA) slip, which is submitted to a supervisor. For unforeseen or
unscheduled absences, the employee must call the prison and report his absence. An
officer at the prison will fill in part of an NOA slip for the absence, reporting the absent
employee's name, reason for absence, type of time requested, and date and time of the

call. When the employee returns to work, he must obtain the NOA slip from his
supervisor and fill in additional information, including the dates of absence and the type
and amount of benefit time he requests. The employee must return the completed form
to his supervisor within two days of his return. The supervisor approves or disapproves
a request for sick leave upon receiving a completed NOA.
An "unauthorized absence" under IDOC's attendance policy is one for which time
has not been approved. Progressive discipline for unauthorized absences begins with
counseling for the first offense, an oral reprimand for the second offense, and written
reprimands for the third and fourth offenses. Subsequent offenses are disciplined via
suspensions, starting with a one-day suspension for the fifth offense and going up to a

twenty-day suspension for the eleventh offense. If there is a twelfth offense, the
employee is discharged.
IDOC employees can apply for approval to take leave protected under the FMLA
by making a request to Kathy Newstrand, Human Resources Representative at the

Representative at the Dixon Correctional Center. In his response brief, Jones moved to
strike Newstrand's declaration because it was not dated, as required under 28 U.S.C.
§ 1746. It is not improper for a court to consider an undated declaration where—as is
the case with Newstrand's declaration—the date of signing can be approximated based
on the content and filing date. See Chi. Reg'l Council of Carpenters Pension Fund v.
Longshore/Daly, Inc., No. 08 C 359, 2014 WL 716223, at *3 n.1 (N.D. Ill. Feb. 25,
2014); EEOC v. World's Finest Chocolate, Inc., 701 F. Supp. 637, 639 (N.D. Ill. 1988).
Regardless, IDOC subsequently submitted an amended declaration with a dated
signature. The Court denies the motion to strike as moot.
Dixon Correctional Center. The FMLA entitles employees to twelve weeks of unpaid
leave for serious health conditions. 29 U.S.C. § 2612(a)(1)(D). Once approved for
FMLA leave, the employee receives an FMLA designation notice from IDOC.
From 2013 to 2016, Jones received a series of approvals for FMLA leave based

on flare-ups of a serious medical condition and related medical appointments. His first
FMLA designation notice authorized twelve weeks of leave between October 23, 2013
and October 25, 2014. The notice stated that the anticipated frequency of flare-ups was
one to two times per week, with a duration of up to three days per event; the anticipated
need for appointments was two times per week. The FMLA designation notice also
stated that Jones was required to "notate on [his] absence slips which absences are
related to the qualifying condition by including 'FMLA' on those slips." FMLA
Designation Notice, Def.'s L.R. 56.1 Stmt., Ex. 22 (dkt. no. 58-22) at 2. IDOC approved
Jones for FMLA leave again for the period between December 19, 2014 and December
18, 2015 and between December 19, 2015 and December 18, 2016. Each time IDOC

approved Jones for FMLA leave, it sent him an FMLA designation notice, and each was
nearly identical to the first one he received in 2013. The notices all listed the same
anticipated frequency of absences for flare-ups and appointments and included the
same instruction to annotate NOA slips with "FMLA" to request protected leave.
In May 2016, Jones was referred to IDOC's Employee Review Board (ERB) for a
hearing regarding violations of IDOC's attendance policy. Specifically, he was referred
for twenty unauthorized absences between January and April 2016. At the time of the
referral, Jones had already been disciplined six times for unauthorized absences
between October 2013 and August 2015. The ERB hearing officer reviewed Jones's
record of past violations, the referrals for the twenty absences in 2016, and medical
documentation corresponding to those absences. The officer also consulted with HR
representative Newstrand.
In a written report issued June 2016, the hearing officer found that some of the

referrals were untimely and several others were for leave that was protected under the
FMLA; he dismissed those. The officer concluded, however, that six of the twenty
alleged absences were unauthorized. These six violations, when added to the six that
Jones already had at the time of the hearing, totaled twelve violations. The hearing
officer therefore recommended discharging Jones—the discipline for an employee's
twelfth violation of IDOC's attendance policy. The prison's warden concurred with the
hearing officer's findings and recommendations, as did IDOC's Acting Director. Thus,
starting on July 16, 2016, Jones was placed on a thirty-day suspension pending
discharge.
Jones subsequently filed a grievance with his union. IDOC entered into an

agreement with the union reversing the suspension and allowing Jones to return to work
as a correctional officer on December 1, 2016. Jones has been working continuously
since that date.
In March 2018, Jones sued IDOC, alleging violations of the ADA and FMLA. His
ADA claims allege disparate treatment (count 1) and failure to accommodate his
disability (count 2). Jones's FMLA claims allege interference with his right to leave
under the statute (count 3) and retaliation for requesting such leave (count 4).
Discussion
IDOC has moved for summary judgment on all four counts of Jones's complaint.
Summary judgment is warranted "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "Summary judgment is not appropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Johnson v. Advocate

Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (quoting Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003)). In ruling on a motion for summary judgment, a court
must view the evidence in the light most favorable to the nonmovant and draw all
reasonable inferences in his favor. Scheidler v. Indiana, 914 F.3d 535, 540 (7th Cir.
2019).
A. ADA claims
The ADA prohibits an employer from "discriminat[ing] against a qualified
individual on the basis of disability." Scheidler, 914 F.3d at 541 (quoting 42 U.S.C.
§ 12112(a)). Discrimination prohibited under the ADA "include[s] disparate treatment
and failure to accommodate" a disability. Id. The Court will address the motion for

summary judgment on Jones's disparate treatment claim first and his reasonable
accommodation claim next.
1. Disparate treatment (count 1)
An ADA disparate treatment claim has three elements: "(1) plaintiff was disabled;
(2) plaintiff was qualified to perform essential functions with or without reasonable
accommodation; and (3) [his] disability was the 'but for' cause of [the] adverse
employment action." Id. IDOC argues that it is entitled to summary judgment because
Jones has failed to provide sufficient evidence for a reasonable juror to find in his favor
on the second and third elements.
a. Qualified individual
"A 'qualified individual' with a disability is a person who, 'with or without
reasonable accommodation, can perform the essential functions of the employment
position.'" Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017)

(quoting 42 U.S.C. § 12111(8)). "[T]he term 'reasonable accommodation' is expressly
limited to those measures that will enable the employee to work." Id. Authorizing an
employee for a brief period of leave—"say, a couple of days or even a couple of
weeks"—to deal with a medical condition may be a reasonable accommodation for
intermittent conditions. Id. at 481. Thus, an employee may be a qualified individual
under the ADA, even if he needs to take intermittent leave for a medical condition. Id.
For example, "[s]omeone with arthritis or lupus may be able to do a given job even if, for
brief periods, the inflammation is so painful that the person must stay home." Id.
Employers are not required, however, to accommodate "erratic or unreliable
attendance," even if it is caused by an employee's disability. Taylor-Novotny v. Health

All. Med. Plans, Inc., 772 F.3d 478, 489-90 (7th Cir. 2014) (quoting Basden v. Prof'l
Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013)).
IDOC argues that the twelve unauthorized absences that led to Jones's
suspension amount to "erratic or unreliable attendance" that it need not accommodate,
see id., and thus no reasonable juror could conclude that Jones was a qualified
individual under the ADA. Jones argues that he was unable to work on those dates for
medical reasons and that authorizing those absences would have been a reasonable
accommodation by IDOC, thus making him a qualified individual. For five of the six
absences in 2016 that the ERB hearing officer concluded were unauthorized, Jones has
submitted notes from doctors in the U.S. Department of Veteran's Affairs (VA) stating
that he was unable work on those dates for medical reasons. Specifically, a letter from
Dr. Ishvar Pattanshetti accounted for Jones's absences on January 20, 2016 and
February 18, 22, and 29, 2016. A letter from Dr. Naomi Bloom accounted for his

absences on February 29, 2016 and March 2, 2016. Based on this evidence, a
reasonable juror could conclude that allowing Jones these five days of leave to address
his medical condition would have been a reasonable accommodation. See Severson,
872 F.3d at 481. And a juror could reasonably find that with this accommodation, Jones
was a qualified individual under the ADA.
b. Causation
An employee can establish that a disability was the "but for" cause of an adverse
employment action—here, suspension—with either direct or indirect proof. See Monroe
v. Indiana Dep't of Transp., 871 F.3d 495, 504 (7th Cir. 2017). Under the direct method,
the employee may present direct or circumstantial evidence that the employer had a

discriminatory motivation. Kuttner v. Zaruba, 819 F.3d 970, 976 (7th Cir. 2016). Under
the indirect method, a burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), the employee has the initial burden of
showing: (1) he is a member of a protected class; (2) he met his employer's legitimate
job expectations; (3) he suffered an adverse employment action; and (4) similarly
situated employees outside of the protected class received more favorable treatment.
Kuttner, 819 F.3d at 976. The Seventh Circuit has recently shifted away from multi-
factor tests in employment discrimination cases, favoring instead an approach in which
a court considers the evidence as a whole to determine "whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion,
or other proscribed factor caused the discharge." See Monroe, 871 F.3d at 504
(quoting Ortiz v. Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir. 2016)).
IDOC argues that Jones has failed to provide sufficient evidence to support a

finding, under either the direct or indirect method, that a disability was the "but for"
cause of his suspension. First, as to the direct method, IDOC argues that Jones points
to no evidence that IDOC had a discriminatory motivation; it contends Jones's violation
of IDOC's attendance policy was the reason he was suspended. In his response brief,
Jones cites nothing by way of evidence of a discriminatory motivation that would
support his claim via the direct method.
As for the indirect method, IDOC argues that there is insufficient evidence to
permit a reasonable factfinder to conclude that Jones was meeting IDOC's legitimate
job expectations or that similarly situated employees received more favorable treatment.
Jones contends that he was meeting legitimate job expectations by pointing to several

of his performance reviews, which indicated that he met IDOC's expectations for use of
time, a performance category that includes absenteeism. But Jones did not point to any
evidence that would give rise to a genuine dispute on whether similarly situated
employees received more favorable treatment.
Thus, regardless of the method of proof—direct or indirect—Jones has failed to
identify evidence that would permit a reasonable factfinder to conclude that IDOC
suspended him because of a disability. See Monroe, 871 F.3d at 504. The Court
grants IDOC's motion for summary judgment on this claim.
2. Failure to accommodate (count 2)
Jones has alleged that IDOC failed to offer the reasonable accommodation of
permitting him intermittent absences for VA medical appointments. A claim for failure to
accommodate under the ADA has three elements: "(1) plaintiff was a qualified individual

with a disability; (2) defendant was aware of his disability; and (3) defendant failed to
accommodate his disability reasonably." Scheidler, 914 F.3d at 541. "Reasonable
accommodation under the ADA is a process, not a one-off event." Cloe v. City of
Indianapolis, 712 F.3d 1171, 1178 (7th Cir. 2013), overruled on other grounds, Ortiz,
834 F.3d at 765. Both the employer and employee are responsible for engaging in an
interactive process to determine the necessary accommodation. Brown v. Milwaukee
Bd. of Sch. Dirs., 855 F.3d 818, 821 (7th Cir. 2017). But unless there are "special
circumstances, like a severe cognitive disability or mental illness," the reasonable
accommodation process begins with the employee, who has the "initial duty" to "indicate
to the employer that [he] has a disability and desires an accommodation." Cloe, 712

F.3d at 1178 (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 803 (7th Cir.
2005)) (emphasis added). Thus, "a plaintiff typically must request an accommodation
for his disability in order to claim that he was improperly denied an accommodation
under the ADA." Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 813 (7th
Cir. 2015).
IDOC first argues that it is entitled to summary judgment on this claim because
Jones did not provide sufficient evidence for a reasonable factfinder to conclude that he
is a qualified individual under the ADA. For the reasons already discussed, this is a
genuinely disputed issue.
Second, IDOC argues that there is no evidence that would permit a reasonable
factfinder to conclude that Jones requested an accommodation for intermittent leave to
attend VA appointments. Jones does not dispute that there is no evidence of any such
request. He argues instead that because he submitted NOA slips requesting

authorization for absences to attend VA appointments, along with documentation from
the VA indicating his arrival and departure times from those appointments, IDOC was
aware that he had a disability. This awareness, Jones contends, is sufficient to trigger
IDOC's liability for failure to accommodate. It is not.
Again, absent "special circumstances" such as severe cognitive disability, a
plaintiff must show that he satisfied his "initial duty" to "indicate" to his employer that he
both had a disability and desired accommodation. Cloe, 712 F.3d at 1178. The
Seventh Circuit has "'consistently held that disabled employees must make their
employers aware of any nonobvious, medically necessary accommodations with
corroborating evidence such as a doctor's note or at least orally relaying a statement

from a doctor,' before an employer is required to provide an accommodation." Id.
(quoting Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 976 (7th Cir. 2009)); see
also Wells v. Winnebago County, 820 F.3d 864, 867 (7th Cir. 2016).
Jones has not provided any evidence that he made a request to IDOC for an
accommodation permitting intermittent leave for VA appointments, nor has he offered
any evidence tending to corroborate that he required such an accommodation. See
Cloe, 712 F.3d at 1178. His periodic requests for time off for VA appointments and
documentation of arrival and departure times from those are not sufficient evidence to
permit a reasonable juror to conclude that he requested the accommodation of
intermittent leave from IDOC. Faced with analogous facts, the Seventh Circuit affirmed
summary judgment on a failure-to-accommodate claim, ruling that an employee's
periodic requests for leave to deal with health complications of his diabetes were not
sufficient evidence to support a reasonable finding that he had requested the

accommodation of intermittent medical leave. See Preddie, 799 F.3d at 813; Preddie v.
Bartholomew Cty. Consol. Sch. Corp., 44 F. Supp. 3d 800, 809 (S.D. Ind. 2014). Jones
does not point to any other evidence of a request for accommodation, nor does he
argue that any special circumstances exist that would alleviate his duty to make a
request. See Cloe, 712 F.3d at 1178.
The Court grants IDOC's motion for summary judgment on this claim.
B. FMLA claims
1. Interference (count 3)
Jones claims that IDOC interfered with his FMLA rights because the ERB hearing
officer denied his request for FMLA protection for five absences between January and

April 2016—five of the six absences that led to his suspension—despite his doctors'
notes that he was unable to work on those days due to a medical condition.
The FMLA requires employers to provide employees with twelve weeks of unpaid
leave for serious health conditions, and employers are prohibited from interfering with
this right. Lutes v. United Trailers, Inc., 950 F.3d 359, 364 (7th Cir. 2020) (citing 29
U.S.C. § 2612(a)(1)(D)). To prevail on an FMLA interference claim, a plaintiff must
establish "(1) he was eligible for the FMLA, (2) his employer was covered by the FMLA,
(3) he was entitled to leave under the FMLA, (4) he provided notice of his intent to take
leave, and (5) his employer denied him FMLA benefits to which he was entitled." Id. at
365.
IDOC argues that there is not sufficient evidence to allow a reasonable juror to
find for Jones on the fourth element of the interference claim: notice. An employee's
notice must "provide sufficient information for an employer to reasonably determine

whether the FMLA may apply to the leave request." Id. at 364 (citing 29 C.F.R.
§§ 825.303(b), 825.301(b)). An employee need not expressly invoke the FMLA to give
his employer notice, and the employee's obligation is satisfied if he provides information
sufficient to show he likely has a serious health condition. Id. at 364, 366. Additionally,
the employee must comply with his employer's notice and procedural requirements for
requesting FMLA leave. Id. at 365. If he fails to do so, the employer may deny FMLA
protection for an absence. Id.; see also Nicholson v. Pulte Homes Corp., 690 F.3d 819,
825 (7th Cir. 2012).
The FMLA designation notices that Jones received stated that to request FMLA
leave, he had to annotate his NOA slips with "FMLA." Jones does not dispute that he

failed to write "FMLA" on the NOA slips for the five absences in 2016 for which he had
notes from Dr. Pattanshetti and Dr. Bloom stating he was unable to work for a medical
reason. He argues, however, that he met his notice obligation by requesting sick leave
on his NOA slips and providing supporting medical documentation, the doctors' notes.
This, in Jones's view, triggered IDOC's duty to request additional information to
determine if his leave qualified for FMLA protection.
To trigger an employer's duty to investigate the applicability of the FMLA to an
absence, an employee must first satisfy his duty of providing the employer information
sufficient to establish "probable cause . . . to believe that the employee is entitled to
FMLA leave." Curtis v. Costco Wholesale Corp., 807 F.3d 215, 220 (7th Cir. 2015).
Merely requesting sick leave, or even repeatedly calling in sick, is insufficient to satisfy
this notice obligation; the employee must communicate that he has a condition
sufficiently serious to qualify for FMLA protection. Lutes, 950 F.3d at 366; Stevenson v.

Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir. 2007). For example, the Seventh Circuit
has held that providing a doctor's note that an employee's wife suffered complications
during labor, without additional details, would have triggered the employer's duty to
investigate whether the employee qualified for FMLA protection. Lutes, 950 F.3d at 366
(explaining Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 953 (7th Cir. 2004)).
Reporting a "twisted knee," on the other hand, is not sufficient to alert an employer than
an employee may be entitled to FMLA leave. Lutes, 950 F.3d at 366.
No reasonable juror could conclude, based on Jones's NOA slips requesting sick
leave and the corresponding doctors' notes, that he alerted IDOC to the seriousness of
his health condition. Merely requesting sick leave on his NOA slips did not alert IDOC

that he was suffering from an FMLA-qualifying condition. And the notes from Dr.
Pattanshetti and Dr. Brown stated only that Jones was unable to work for a medical
reason. Neither letter offered any information about the nature or seriousness of
Jones's condition.
Because there is no evidence that would allow a reasonable jury to conclude that
Jones gave IDOC notice that his absences might qualify for FMLA protection, the Court
grants IDOC's motion for summary judgement on his FMLA interference claim.
2. Retaliation (count 4)
Jones claims that IDOC retaliated against him by suspending him for requesting
and using FMLA-protected leave between January and April 2016. An FMLA retaliation
claim has the following elements: (1) the employee was engaged in a protected activity;
(2) the employer took an adverse employment action against him; and (3) there was a
connection between his protected activity and the adverse employment action. Lutes,

950 F.3d at 363. IDOC argues that there is insufficient evidence for a reasonable juror
to find for Jones on the causation element of this claim.
Starting with Jones's claim that IDOC suspended him for requesting FMLA leave,
IDOC correctly points out that Jones has failed to provide any evidence connecting his
suspension to his requests for FMLA protection for the absences between January and
April 2016. "An employee who alleges that her employer retaliated against her for
exercising her rights under the FMLA can proceed under the direct or indirect methods
of proof familiar from employment discrimination litigation." Scruggs v. Carrier Corp.,
688 F.3d 821, 826 (7th Cir. 2012) (quoting Smith v. Hope Sch., 560 F.3d 694, 702 (7th
Cir. 2009)). The direct and indirect methods of proof are explained earlier in this

opinion. Jones does not cite any evidence, under either method, to connect his
suspension to his requests for FMLA protection for his absences in 2016.
Jones's claim that he was suspended for using FMLA-protected leave likewise
cannot survive summary judgment. To survive summary judgment on this claim, Jones
must point to evidence that IDOC suspended him "because he took valid leave."
Preddie, 799 F.3d at 819 (quoting Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 667 (7th
Cir.2008)) (emphasis added). Thus, Jones's FMLA retaliation claim based on his taking
protected leave "stands or falls with his interference claim." Hansen v. Fincantieri
Marine Grp., LLC, 763 F.3d 832, 835 (7th Cir. 2014); see also Nicholson, 690 F.3d at
828. As discussed above, Jones did not provide sufficient evidence for a reasonable
jury to conclude that he had given IDOC notice that the five absences in 2016 that he
claims were FMLA-protected were for a serious health condition. Thus, his FMLA
retaliation claim likewise fails. Cf. Preddie, 799 F.3d at 819 (holding that plaintiff had a
triable FMLA retaliation claim where evidence supported a reasonable inference that he
was fired for absenteeism and his employer had notice that those absences were
attributable to his son's sickle cell anemia); Burnett v. LFW Inc., 472 F.3d 471, 482 (7th
Cir. 2006) (reversing summary judgment on FMLA retaliation claim where evidence was
sufficient to support a finding that plaintiff had given his employer sufficient notice of a
serious medical condition and was terminated for taking leave for that condition).
The Court therefore grants summary judgment on Jones's FMLA retaliation
claim.
Conclusion
For the foregoing reasons, the Court grants IDOC's motion for summary
judgment on all of the claims in Jones's complaint [dkt. no. 54] and directs the Clerk to
enter judgment in favor of defendant and against plaintiff. Additionally, the Court
directs the Clerk to place under seal Exhibit C to Plaintiff's Local Rule 56.1 Statement
[dkt. no. 66-4], as this document contains personal identifying information.

United States District Judge
Date: June 8, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10142858. Public record. Not legal advice.