The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DOUG HUBBARD, )
)
Plaintiff, )
)
v. ) Case No. 20-3300
)
ILLINOIS BOARD OF EDUCATION, )
)
Defendant. )
OPINION AND ORDER
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
Before the Court are Plaintiff’s Motion for Partial Summary
Judgement (d/e 18), Defendant’s Motion for Summary Judgment
(d/e 16) and the parties’ responses thereto (d/e 29, 30, 32). Plaintiff’s
Motion (d/e 18) and Defendant’s Motion (d/e 16) are DENIED.
I. BACKGROUND
The Court draws the following facts from the parties’ statements
of material fact in the Plaintiff’s Partial Motion for Summary
Judgment (d/e 18), Defendant’s Response (d/e 29), Plaintiff’s Reply
(d/e 32), Defendant’s Motion for Summary Judgment (d/e 16),
Memorandum in Support (d/e 17), Plaintiff’s Response (d/e 23), and
Defendant’s Reply (d/e 30). Any fact submitted by any party that was
not supported by a citation to evidence will not be considered by the
Court. See Civ. LR 7.1(D)(2)(b)(2). Any response to an allegedly
disputed fact unsupported by evidentiary documentation is deemed
admitted. Id.
Plaintiff, Doug Hubbard, was employed by the Illinois State
Board of Education (“ISBE”) from 2017 to 2020. (d/e 17, 23). During
his employment at ISBE, Plaintiff held the position of principal
consultant on a technical assistance team, where he would provide
troubleshooting installation or other fixes. Id. Plaintiff worked under
a collective bargaining agreement in that position. (d/e 19, 29).
Plaintiff’s hours were 8:30 am to 5:00 pm, Monday through Friday.
Id.
Chuck Murphy was Plaintiff’s direct supervisor, and Mr.
Murphy reported directly to Nancy Diefenback. (d/e 17, 23). Nancy
Diefenback was employed by the ISBE as its director of the IT
department and reported to ISBE’s chief information officer, Melissa
Oller. (d/e 17, 29). During the month of December 2019, Plaintiff was
absent from work on ten occasions - December 2, 16, 17, 19, 20, 23,
24, 25, 26, 27. (d/e 17, 23).
On December 2, 2019 Plaintiff provided a note from Dr. Scott
Morton, advising Plaintiff was ill on that date in support of this
absence. (d/e 19, 29). For the absences on December 16, 17, 19, 20,
23, 24, 26, Plaintiff sent an email on each of these dates to the
ITATTENDANCE email account advising he would be out of work that
day. (d/e 19, 29, d/e 20, App. 401-410). These emails indicate that
Plaintiff was sick, would not be in, or that he had “strep.” Id. During
the evening of December 26, 2019, Plaintiff emailed the
ITATTENDANCE account advising he would not be in for work until
December 30, 2019, and attached a return-to-work release signed by
a medical professional, Brenda Hawkins. (d/e 19, 29; d/e 21-3, App
411).
Diefenback drafted a Pre-Disciplinary Meeting Memorandum
dated December 27, 2019, noting Plaintiff was previously disciplined
on July 9, 2019 for failure to appropriately manage earned benefits
time. (d/e 17, 23). Specifically, this previous discipline involved
Plaintiff utilizing sick time to attend a concert. This memorandum
further noted a pattern of activity of sick time use issues, the dates
Plaintiff was absent, and that a pre-disciplinary meeting had been
scheduled on Friday, January 17, 2020. In addition, the
memorandum mentions that the time taken off in December 2019
was done on “dock” time, which meant Plaintiff had no available time
on the books, no personal, vacation, or sick time. (d/e 17, 23).
On December 30, 2019, at 6:30 a.m., Plaintiff sent an email to
the ITATTENDANCE account that he was ill and would be seeing a
doctor. (d/e 19, 29). Approximately 90 minutes after this initial email,
Plaintiff emailed Michael Sullivan, an ISBE human resource
specialist, noting that Plaintiff’s doctor had requested FMLA
paperwork. (d/e 19, 29; d/e 20, App. 412, 427). One of Mr. Sullivan’s
responsibilities was to facilitate the paperwork for FMLA leaves of
absence. (d/e 19, 29). Specifically, receiving FMLA documentation
and ensuring that the proper paperwork was provided. (d/e 19, 29).
However, he was not responsible for approving FMLA. (d/e 17, 23).
On that same date Plaintiff requested FMLA paperwork, Mr. Sullivan
responded to Plaintiff’s email and sent the appropriate FMLA
paperwork. (d/e 19, 29).
The FMLA paperwork provided to Plaintiff included a
Certification of Health Care Provider for Employees Serious Health
Condition. This certification requires various information from a
health care professional including what condition an individual
suffers from, the duration, and asks a provider to be as specific as
possible. (d/e 21-3, App. 414). Further this certification allows an
employer to review and make a determination on possible FMLA
coverage.
On January 2, 2020, at 6:08 a.m., Plaintiff emailed screenshots
of the medical certification for FMLA to Chris Murphy, Michael
Sullivan, and the “ITATTENDANCE” email. (d/e 17, 19, 23, 29). This
certification was completed by Dr. Scott Morton. Within that FMLA
paperwork sent, the estimated beginning and ending dates for the
period of Plaintiff’s incapacity listed “12/16-1/6/20.” (d/e 17, 23, Ex.
7, Bates 000165). These emails were the sole notice Plaintiff provided
to Chuck Murphy and the ITATTENDANCE email that he was going
to be absent from work on January 2 and 3, 2020. (d/e 17, 23).
On January 2, 2020, at 9:20 a.m., Chuck Murphy emailed
Plaintiff regarding an assigned task to be performed that day.
Specifically, Murphy informed Plaintiff that Murphy had left a
maintenance kit on Plaintiff’s chair and that a printer needed to be
installed. (d/e 17, 23). Various emails went between Nancy
Diefenback, Melissa Oller, Miguel Calderon, and Edward Graham on
that same date. Specifically, Ms. Diefenback noted that she found
Plaintiff’s FMLA request “contradictory,” that his medical condition
may not have been “serious,” and she asked that he be subjected to
“re-certification specifying why such common ailments are
incapacitating. (d/e 19, 29; d/e 21-3, App. 420). In another email,
Ms. Diefenback noted Plaintiff did not call in or email that he would
not be in the office although he sent in an FMLA form. Id at App. 420.
After Miguel Calderon, the Human Resources Director of ISBE,
reviewed Plaintiff’s paperwork on the same date, Calderon responded
via email advising Ms. Diefenback that his initial review suggested
that Plaintiff met the threshold for FMLA. (d/e 19, 29).
On January 9, 2020, Ms. Diefenback sent a memo to Plaintiff
advising that a pre-disciplinary hearing was scheduled for January
17, 2020. (d/e 19, 29). The memo specified that Plaintiff violated
Article 12, Section 4 of the collective bargaining agreement, as he
failed to notify his “immediate supervisor, Diefenback [me], or the
department timekeeper that you would be absent from work on
Thursday January 2, 2020, and again on Friday, January 3, 2020.
(d/e 19, 29). Diefenback testified that she believed that Plaintiff was
effectively a no-call/no-show for the dates of January 2 and 3, 2020.
(d/e 19, 29).
On January 13, 2020, Plaintiff communicated with Michael
Sullivan, who indicated Plaintiff might need a supplement from his
physician. Id. A revised certification was prepared by Dr Scott
Morton. On January 15, 2020, Mr. Sullivan emailed Plaintiff,
notifying him that there were items missing in his FMLA paperwork.
(d/e 17, 23). Specifically, some questions had incomplete responses
or needed additional information from a medical professional. (d/e
17, Ex. 7).
On January 17, 2020, Plaintiff participated in a pre-disciplinary
meeting, which was consolidated to discuss two different proposals
for discipline: (1) a one-week suspension based on the Pre-
Disciplinary Meeting Memorandum dated December 27, 2019, and
(2) proposed termination based upon the Pre-Disciplinary Meeting
Memorandum dated January 9, 2020. (d/e 19, 29; d/e 21-3, App.
240). Plaintiff provided various evidence during the meeting,
including a letter from Dr. Morton, Plaintiff's previously submitted
FMLA certification, and Plaintiff read a personal statement.
On February 3, 2020, ISBE informed Plaintiff that the FMLA
certification form he submitted on January 16, 2020, had been
reviewed, approved, and was effective “for intermittent use from
December 2, 2019, through December 15, 2019, continuous use
from December 16, 2019, through January 15, 2020, and
intermittent use again from January 16, 2020, when recertification
for the 2020 fiscal year would need to be submitted. (d/e 17, 23).
On February 14, 2020, ISBE sent Plaintiff a memorandum,
notifying him of his termination based upon Plaintiff’s absences on
January 2-3, 2020. (d/e 17, 23).
ISBE admits that Plaintiff was an eligible employee under the
FMLA under 29 CFR 825.110 as of both December 1, 2019 and
January 1, 2020. (d/e 19, 29). ISBE further admits that Plaintiff
suffered from a serious health condition under the FMLA under 29
CFR 825.113 as of December 2, 2019, January 2, 2020, and January
15, 2020. Id.
II. LEGAL STANDARD
When moving for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure, the moving party bears the burden
of showing, based on the materials in the record, “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) & (c); Hummel v.
St. Joseph Cty Bd. of Comm’rs, 817 F.3d 1010, 1015–16 (7th Cir.
2016). “The moving party has the burden of either: (1) showing that
there is an absence of evidence supporting an essential element of
the non-moving party's claim or (2) presenting affirmative evidence
that negates an essential element of the non-moving party's claim.”
Id. But, even where there is no dispute as to the basic facts of a case,
summary judgment will not be appropriate “if the parties disagree on
the inferences which may reasonably be drawn from those
undisputed facts.” Cent. Nat. Life Ins. Co. v. Fidelity & Deposit Co. of
Md., 626 F.2d 537, 539–40 (7th Cir. 1980). The facts and all
reasonable inferences derived therefrom are viewed in the light most
favorable to the non-moving party. Woodruff v. Mason, 542 F.3d 545,
550 (7th Cir. 2008).
III. ANALYSIS
Plaintiff has not carried his burden showing an absence of
material fact as to each element to show Defendant interfered with a
right provided under the FMLA. Therefore, Plaintiff’s Motion for
Partial Summary Judgment (d/e 18) is DENIED. Defendant also has
not carried its burden on summary judgment by showing an absence
of a material fact as to whether Defendant interfered with Plaintiff’s
FMLA rights. Therefore, Defendant’s Motion for Summary Judgment
(d/e 16) is DENIED.
The Family Medical Leave Act (FMLA) permits eligible employees
to take up to twelve weeks of unpaid leave during any 12-month
period of time for family or medical reasons. 29 U.S.C. § 2612. The
FMLA prohibits an employer from interfering with, any right provided
under the FMLA. 29 U.S.C. § 2615(a)(1). For a plaintiff to establish
that his FMLA rights have been interfered with he must show: (1) he
was eligible for the FMLA’s protections; (2) his employer was covered
by the FMLA; (3) he was entitled to leave under the FMLA; (4) he
provided sufficient notice of his intent to take leave; and (5) his
employer denied him FMLA benefits to which he was entitled. Ryl-
Kuchar v. Care Centers, Inc., 565 F. 3d 1027, 1030 (7th Cir. 2009).
The parties do not dispute that ISBE is an employer covered by
the FMLA, so the Court will now turn its analysis to the notice
requirement needed to substantiate a violation or interference.
Although each of the parties briefly discuss the other elements
required to substantiate an interference claim, much of the
arguments are dominated by the FMLA’s notice requirement.
Under, the FMLA, an employer may require employees “to
comply with the employer’s usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances.” 29 U.S.C. § 825.302(d). Even for unforeseeable
FMLA leave, there must be notice to the employer “as soon as
practicable under the facts and circumstances of the particular
case.” Id. 825.303(a). Further, said notice must “provide sufficient
information for an employer to reasonably determine whether the
FMLA may apply to the leave request.” 29 C.F.R §§ 825.303(b).
Plaintiff argues that he provided more than sufficient notice to
ISBE that he was seeking to take FMLA leave and ISBE did not
provide the required FMLA responsive notice, barring a finding of
summary judgment for the Defendants. Specifically, Plaintiff argues
that ISBE must provide an eligibility notice pursuant to 29 C.F. R. §
825.300(b)(1) and a rights and responsibilities notice pursuant to 29
C.F.R. § 300(c)(1). ISBE contends that Plaintiff provided vague emails
noting he was “sick,” but he did not indicate a serious medical
condition, which did not provide adequate notice of the possibility of
FMLA leave and failed to comply with ISBE’s internal polices,
resulting in Plaintiff’s termination.
Plaintiff was admittedly aware of certain procedural
requirements regarding notification to ISBE when taking days off
work. These requirements include the notification of his supervisor.
Indeed, the parties agree that, under ISBE’s policies, when an
employee is going to be absent from work because of an illness, he is
to notify either his immediate supervisor or the person designated to
record attendance “within one (1) hour of the employee’s scheduled
starting time”. This fact is further underscored as Plaintiff previously
failed to use sick time appropriately in the past. Plaintiff not only was
required to comply with the normal procedural requirements for
notification when taking “sick time,” but he was also required to
“bring written confirmation documenting the appropriate use of all
sick time” pursuant to the written reprimand he had received on May
16, 2019. (d/e 17, 23, Ex. 1).
A. There Is a Genuine Issue of Material Fact Whether
Plaintiff Provided Adequate Notice for His Absences in
December 2019.
Plaintiff asserts that, for every instance he was absent, he
contacted his supervisor and ITATTENDANCE email within the
required time frame. Plaintiff’s emails to his employer all note that
Plaintiff was “feeling sick,” or “sick,” or possibly had “strep.” (d/e 21,
Ex. 3, App. 401-413). There was no notification as to a specific
ongoing medical issue, other than a general reference to “strep” or a
notification of one serious in nature.
Plaintiff did provide a sick note after his December 2, 2019
absence which did not list any specific medical issue and a return-
to-work release on December 26, 2019. No other medical
documentation or information for the other absences during the
month of December was provided until Plaintiff requested FMLA
paperwork on December 30, 2019. Specifically, Plaintiff emailed
Michael Sullivan requesting the FMLA paperwork after informing
ISBE he would not be in for work that day.
This FMLA paperwork was completed by Dr. Morton on
December 31, 2019, and emailed to ISBE on January 2, 2020 at
approximately 6 am. When Plaintiff did email his completed FMLA
paperwork to ISBE the estimated dates listed “12/16-1/6/20.” (d/e
17, 27). As all parties agree, Michael Sullivan was responsible for
FMLA paperwork and was the person who would review the
paperwork attached to Plaintiff’s December 30, 2019 email.
Defendant argues Collins v. NTN-Bower Corp. supports
Plaintiff’s failure to provide proper notice. In Collins, the Seventh
Circuit affirmed summary judgment for an employer when an
employee called and advised her employer that she was “sick,” even
though the employee was suffering from clinical depression. Collins
v. NTN-Bower Cop., 272 F.3d 1006, 1008 (7th Cir. 2001). The Seventh
Circuit held that notice was inadequate because “sick” does not imply
a “serious medical condition” as required by 29 U.S.C. §
2612(a)(1)(D). Id. Further, because the employer was not on notice
that the FMLA might apply, the employer could terminate the
employee’s employment without inquiring into the seriousness of the
condition. Id. at 1008-09.
Here, the language Plaintiff used in his emails regarding his
absences throughout December 2019 is similar to that of the plaintiff
in Collins. Using “sick” or “feeling sick” is too vague to provide an
employer notice of the need for FMLA leave. Much like the plaintiff in
Collins, here, Plaintiff had problems in the past managing benefit
time and was required to submit medical support after being warned
about that failure in the past. The written documentation from Dr.
Morton advising Plaintiff was sick on December 2, 2019 and the
return to work release on December 26, 2019 from a different
physician were required based on Plaintiff’s history of abusing sick
time. Further, neither of these notes provide notice of ongoing care of
a specific nature or a serious condition that would place an employer
on notice of possible FMLA leave.
Defendant further argues that Plaintiff failed to follow protocol,
failing to submit doctor’s notes for all of his absences in December
2019, which proves he failed in his notice requirement. Plaintiff failed
to submit a doctor’s note or medical documentation for each of his
absences, but he did so submit for December 2, 26, and 27. Plaintiff
did comply with the ISBE’s requirements in December 2019 by
alerting his supervisors within at least one hour that he would not
be attending work. These notifications, although vague, did place his
employer on notice of his absence but cannot be said to place the
employer on notice of FMLA leave. Further, whether he was “sick” or
suffering from “strep” is no indication of a serious medical issue that
may indicate a need for FMLA leave.
Therefore, Plaintiff cannot meet his burden of interference at
this stage, showing he provided sufficient notice of his intent to take
FMLA leave prior to December 30, 2019, and is not entitled to
summary judgment.
B. There Is a Genuine Issue of Material Fact Whether
Plaintiff Provided Adequate Notice for His Absences in
January 2020.
Defendant argues that although Plaintiff was eventually
approved for the FMLA leave, Defendant was still entitled to
terminate Plaintiff because: Defendant had already started
disciplinary proceedings, Plaintiff failed to notify his supervisor he
would be absent on January 2 and 3, 2020, and ISBE did not
interfere with his FMLA rights. Plaintiff, in contrast, contends that
ISBE was clearly provided adequate notice of his intention not only
to take FMLA leave but that he would not be present for work on
January 2 or 3, 2020.
On December 30, 2019, Plaintiff requested FMLA paperwork
from Michael Sullivan. Plaintiff then met with his physician on the
following day who completed the FMLA paperwork. Screenshots of
this paperwork were returned via email to ISBE on January 2, 2020
and mailed. Included on this email were Michael Sullivan, Chuck
Murphy, and the “ITATTENDANCE” email address. In the body of this
email, Plaintiff does not note that he will not be at work the next two
days or that he is sick and unable to. Instead, contained in the FMLA
paperwork on page 3, is the duration of the illness listed as December
16, 2019 through January 6, 2020.
Defendant ISBE supports its contention that Plaintiff failed to
provide notice to his employer that he would not be at work on
January 2-3, 2020, by noting Chuck Murphy was unaware that
Plaintiff would not be in that day. Specifically, Mr. Murphy, who was
Plaintiff’s direct supervisor, sent Plaintiff an email Thursday morning
that indicated he expected Plaintiff to be physically present in the
office on January 2, 2020. While this may indicate Mr. Murphy had
no notice that Plaintiff would not be at work, whether other
individuals at ISBE did is less clear.
Ms. Diefenback, the Director of Information Technology, was
not listed as a recipient of Plaintiff’s January 2, 2020 email. However,
at 9:11 am on that same date, Ms. Diefenback emailed Miguel
Calderon, Edward Graham, and Melissa Oller regarding Plaintiff’s
paperwork, informing them Doug [the Plaintiff] had submitted FMLA
paperwork. Of particular note, Ms. Diefenback seemingly refers to all
the days that the Plaintiff missed, and includes “1/2” and mentions
that he did not specifically call in or email that he would not be in
the office on January 2, 2020.
Based on the record before the Court, Defendant is correct that
Plaintiff did not specifically contact his direct supervisor or include a
direct notification that he would be out of the office on January 2.
Further, Plaintiff also did not directly email his supervisor regarding
January 3, 2020, believing the submission of FMLA paperwork was
enough. (d/e 17, 23). However, the emails from Ms. Diefenback
support Plaintiff’s contention that she at least was made aware of the
January 2, 2020 absence and Plaintiff’s January 2, 2020 email was
not addressed to her directly.
Plaintiff’s December 30, 2019 and January 2, 2020 emails did
indeed put ISBE on notice of his intent to seek FMLA leave. Plaintiff’s
December 30, 2019 email, asking for FMLA paperwork, was clearly
sufficient to show that he would be seeking leave and had already
spoken to a treating physician about a medical leave. As to Plaintiff’s
January 2, 2020 email, which included screenshots of the completed
FMLA paperwork and noted “this has been mailed back,” was further
confirmation that documentation had been prepared by a medical
professional and the title of the email was “FMLA Paperwork.”
An employee’s obligation to give notice to an employer under a
collective bargaining agreement is a “usual and customary”
requirement and employers are “entitled to the sort of notice that will
inform them not only that the FMLA may apply but also when a given
employee will return to work.” Gilliam v. United Parcel Service, Inc.,
233 F.3d 969, 971 (7th Cir. 2000). This is the type of notice that
Plaintiff attempted to provide to ISBE by emailing Michael Sullivan,
Chuck Murphy, and the “ITATTENDANCE” email address, and was
recognized by the Director of IT department, Nancy Diefenback when
she was provided the FMLA paperwork and thereafter emailed
various individuals regarding the January 2, 2020 absence. However,
Ms. Diefenback was not Plaintiff’s direct supervisor, email notice was
not provided to her directly from Plaintiff but through somebody
bringing the email to her attention, and, although the record is
unclear, Diefenback does not appear to be the “timekeeper” referred
to in the collective bargaining agreement.
However, Defendant’s reliance on Riley v. City of Kokomo is
somewhat misplaced based on the record the Court has received. In
Riley, the court determined summary judgment was appropriate and
there was no interference where the plaintiff requested FMLA leave
on May 9, 2014, but the employer already decided to terminate her
two days prior, on May 7, 2014. Riley v. City of Kokomo, 909 F.3d
182, 188 (7th Cir. 2018). The record, including the sworn testimony
from Ms. Diefenback, is silent as to whether there was a
determination made prior to January 2-3, 2020 that Plaintiff would
be fired for any additional unexcused absences. However, not until
January 9, 2020 did Ms. Diefenback send a memo to Plaintiff
regarding the “pre-disciplinary hearing” and specifically noted the
absences on January 2 and January 3, 2020.
Although Plaintiff emailed his direct supervisor on January 2,
2020, Chuck Murphy had no notice regarding Plaintiff’s planned
absence on that day. Based on the Director of Information
Technology’s sworn testimony, Diefenback was made aware and
memorialized that Plaintiff would be absent on January 2, 2020.
Given this knowledge, this Court cannot determine how ISBE lacked
notice of Plaintiff’s intent to be absent from work on January 2, 2020.
However, this Court has not been provided with enough information
to determine that there is no issue of material fact as to what
Plaintiff’s direct supervisor knew, who or what the department
timekeeper knew, or what determinations had been made about the
Plaintiff regarding any prospective absences after the large number
of absences during the month of December.
Finally, Plaintiff failed to comply with the usual and customary
notice requirements as to January 3, 2020 as required under Article
12, Section 4 of the collective bargaining agreement regarding his
absence on that date and the record as presented by both parties is
unclear who knew what regarding said date. Although the FMLA
paperwork noted the date Plaintiff would return, Plaintiff was still
required to follow the usual and customary notice requirements
prescribed by the collective bargaining agreement, just as he had for
the full month of December on a day-to-day basis.
Plaintiff has failed to prove any absence of material fact
regarding what knowledge or notice Plaintiff’s supervisor had
regarding his January 2-3, 2020 absences. Additionally, Defendant
has failed to prove that a determination was made regarding
Plaintiff’s termination prior to his request for FMLA. Instead,
disciplinary proceedings had commenced regarding Plaintiff’s
absences in December and a date set for a hearing, but a new letter
for the January pre-disciplinary hearings was not sent until January
9, 2020. Although progressive discipline may be permissive pursuant
to collective bargaining agreement at issue here, there is no direct
and uncontested evidence that termination is what was planned. As
each of the parties failed to prove any absence of material fact, each
of their motions is DENIED.
IV. CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for Partial
Summary Judgment and Defendant’s Motion for Summary
Judgment are each DENIED.
IT IS SO ORDERED.
ENTERED: June 27, 2024.
FOR THE COURT
/s/ Sue E. Myerscough____________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE