Hempen v. City of Nashville, Illinois

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL HEMPEN,

Plaintiff,

v. Case No. 3:22-CV-3133-NJR

CITY OF NASHVILLE, ILLINOIS,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

In January 2021, Defendant City of Nashville, Illinois (“the City”) fired Plaintiff

Michael Hempen (“Hempen”) from his job as a Utility Worker in its Water Plant. With this

action, Hempen claims the City violated the Family Medical Leave Act (“FMLA”) when it

failed to notify him of his right to FMLA leave (Count I) and when it fired him for using

FMLA-qualified leave for his chronic serious medical condition (Count II).

Now before the Court is the City’s Motion for Summary Judgment. (Doc. 37). The City

argues that it is entitled to judgment as a matter of law on Hempen’s claim of FMLA

interference in Count I because Hempen did not have a serious medical condition as defined

by the FMLA, and he never provided notice of his intent to take leave. The City further argues

that summary judgment should be granted as to Hempen’s FMLA discrimination claim in

Count II because it had legitimate, non-discriminatory reasons for Hempen’s termination.

For the following reasons, the City’s motion is granted in part and denied in part.

BACKGROUND

Hempen first began experiencing episodes of dizziness, nausea, and vertigo in or

around 2008 after being hit in the head with a sledgehammer in a work incident, resulting in

a concussion. (Doc. 37-10 at p. 5). Over the next several years, Hempen saw multiple doctors

for his symptoms. In November 2010, Hempen was taken to Washington County Hospital

and then transferred to Belleville Memorial Hospital after an episode of severe dizziness,

nausea, and fainting. (Doc. 40-3 at pp. 133-138). In February 2012, Hempen was seen by Dr.

Jennifer Grana for complaints of severe vertigo and ringing in his ear, describing his hours-

long episodes as “devastating.” (Doc. 40-3 at pp. 42-47, 163). Hempen told the doctor that

when an episode occurs, he has to lie down and cannot get up for an hour or two. (Id. at

p. 163).

In March 2013, Dr. Ketan Shah diagnosed Hempen with Benign Paroxysmal Positional

Vertigo. (Id. at 190). Later that same year, Hempen saw a neurologist, Dr. Jafar Kafaie, who

told him there was no way to treat his vertigo other than staying in a dark room, covering his

head, and remaining motionless until the episode went away. (Doc. 39-1 at p. 5). Hempen’s

vertigo episodes typically last from a few hours up to a day and a half. (Id. at p. 7).

On June 21, 2016, the City of Nashville hired Hempen as a Utility Worker assigned to

the Water Plant. (Doc. 37-1). Within six to eight months after starting his job, Hempen felt a

vertigo episode coming on while at work. (Doc. 39-1 at p. 8). Hempen was the only employee

on duty at the Water Plant, so he called James Leonard, the Chief Operator at the time, and

asked Leonard to finish his shift so he could go home. (Id.). Hempen’s wife, Shari, picked him

up from work and apologized to Leonard for Hempen vomiting in the trash can. (Doc. 39-7

at p. 2). She also explained Hempen’s vertigo diagnosis to Leonard. (Id.).

In February 2019, Hempen, Leonard, and Blaine Middleton, the Utility

Superintendent, attended a work conference in Effingham, Illinois. (Doc. 39-10 at p. 4). The

three men were at dinner when Hempen suddenly said he felt ill and needed to go back to

his hotel room. (Doc. 39-2 at p. 10). A couple of days later, Middleton asked Hempen how he

was doing. (Doc. 39-5). Hempen told him he has chronic positional vertigo, and Middleton

asked if he had seen a doctor about it. (Id.). Hempen told Middleton that he had seen many

doctors, that a neurosurgeon told him the vertigo would come and go, and that it was

something he would have to deal with. (Id.). Middleton suggested that Hempen see a doctor

again. (Id.).

In 2020, Hempen had to leave work at least three times because of dizziness caused

by vertigo. (Doc. 39-5 at p. 3). Then, on November 19, 2020, Hempen had a severe episode at

work. (Doc. 39-1 at p. 11). Hempen called his co-worker, Josh Beckner, and asked him to come

in early so Hempen could go home. (Id.). He also called his wife, Shari, and asked her to pick

him up. (Id.). When Shari arrived, Hempen was sitting on a rolling chair holding a trash can.

(Doc. 39-7 at p. 4). Hempen told Shari he could not make it out to their truck, so she pushed

him into the break room and helped him to lie down on the table. (Id.). They sat in the break

room for close to two hours with the lights off before Hempen felt like he could get up and

make it to their vehicle. (Id.). Beckner notified Leonard that Hempen was sick and had to go

home. (Doc. 39-2 at p. 11).

Several days later, Middleton told Hempen he had heard about the incident. (Doc. 39-

5 at p. 2). Hempen told him that it had been a bad episode, and Middleton urged him to see

a doctor to get checked out. (Id.). Hempen made an appointment and was examined by

Andrea Baldwin, FNP-C, on November 25, 2020, for dizziness. (Doc. 40-3 at pp. 18-24).

Baldwin referred Hempen back to his neurologist, Dr. Kafaie, and to Dr. Mark Szewczyk, an

otolaryngologist. (Id. at p. 28).

Around January 5, 2021, Hempen and another employee, Charles Koepke, had a

meeting with Leonard, who had become Superintendent, regarding “SCBA testing.”

(Doc. 39-2 at p. 6). OSHA requires the City to have equipment for employees to use in case of

a deadly chlorine gas leak; the equipment includes a SCBA mask so that employees breathe

oxygen from tanks, not chlorine gas. (Doc. 39-3 at p. 4). The City purchased its SCBA

equipment in 2008 and, as of 2021, had never used the equipment. (Doc. 39-2 at p. 9). Leonard

had been going over OSHA rules and regulations, however, and realized they should be

taking the SCBA test annually to prepare for a chlorine leak. (Doc. 39-2 at p. 7).

During the meeting, Leonard explained that EMTs would come in and conduct a

physical. (Doc. 37-11 at p. 6). The employee would then put the SCBA mask on and walk

around the plant while breathing oxygen for five minutes. (Id.). Afterward, the employee’s

blood pressure and pulse would be taken. (Id.). The SCBA mask was a full-face respirator

mask. (Id.). Koepke testified that Hempen told Leonard he was going to refuse to take the test

because he thought it was ridiculous. (Id.). Hempen testified that he told Leonard he could

not take the test because he wears glasses, and the mask does not fit around glasses. (Doc. 39-

1 at p. 15). Hempen said it would be ridiculous to even try. (Id.).

Koepke, the union steward for the Water Plant, said he would call the union to see

what they had to say about it. (Doc. 37-11 at p. 6). A union representative said that Hempen

had to take the test if it is an OSHA requirement, but that he could not be terminated for

failing the test. (Id.). However, Hempen’s refusal to take the test would be job subordination.

(Id.). Hempen then told Leonard he would take the test, but he guaranteed he would fail it.

(Doc. 39-1 at p. 15). Hempen could not remember what Leonard said in response because

Leonard was “kind of upset about the whole thing by then.” (Doc. 37-10 at p. 20).

Two days after this meeting, Hempen woke up feeling woozy but went to work at

6:30 a.m. anyway. (Doc. 39-5 at p. 3). When Koepke arrived at work, Hempen told him he

was not feeling well but was going to try to stay until 10:30 a.m., which was half of his shift.

(Id. at pp. 2-3). Hempen then left work around 10:30 a.m. (Doc. 37-11 at p. 8). Shortly

thereafter, Leonard walked into the plant and asked where Hempen was; Koepke told him

that Hempen went home. (Id. at p. 9). At 10:46 a.m., Leonard texted Hempen: “Hey Mike,

start letting me know when you want off early… I know you told Chuck, but I had [no] clue

you were leaving early… I asked Chuck where you went, I had [no] clue…” (Doc. 39-2 at

p. 14). One minute later, Hempen responded: “Okay, sorry.” (Id.). When Hempen got home,

he laid down in a dark room for several hours. (Doc. 39-5 at p. 3).

Hempen was fired on January 10, 2021. (Doc. 37-6 at p. 2). The termination letter stated

that on January 7, 2021, he left the Water Plant during his shift without notice to supervisory

personnel, he did not return that day, he provided no reason for leaving, and he never

explained why he left. (Doc. 37-2). The letter also referenced Hempen’s “refusal to participate

in OSHA-required SCBA safety suit air apparatus testing required of all water plant

employees . . . .” (Id.).

At the time of his termination, Hempen was a member of the International Union of

Operating Engineers Local #148 (“the Union”), which had entered a Collective Bargaining

Agreement with the City. (Docs. 37-2, 37-3). The Collective Bargaining Agreement became

effective in September 2020. (Doc. 37-3).

During the Union grievance process, a “Last Chance Agreement” was negotiated

between Hempen, the Union, and the City, which would have allowed Hempen to return to

work for the City. (Doc. 37-4). The Union signed the agreement, but the City and Hempen

did not. (Id.). On February 5, 2021, the Union sent an email to counsel for the City formally

withdrawing the grievance because Hempen would not sign the Last Chance Agreement.

(Doc. 37-5).

As a City employee, Hempen received an Employee Handbook that outlined the

FMLA. (Doc. 37-9). The City also placed a poster on a bulletin board in the Water Department

that described FMLA rights and responsibilities. (Doc. 37-7 at pp. 6-7; Doc. 37-8). Each year,

the FMLA posters were replaced with the current version for that particular year. (Doc. 37-7

at p. 7). Hempen, however, did not pay attention to the posters. (Doc. 37-10 at p. 26). Hempen

first heard the term “FMLA” in 2018 when his co-worker, Koepke, broke his ankle and used

FMLA time. (Id. at pp. 26-27).

Theresa Kurwicki is the City Clerk of Nashville, and is responsible for the

administration of the FMLA for the City. (Doc. 37-7 at p. 7). Kurwicki acknowledged that the

City made no effort to offer Hempen intermittent FMLA leave or to determine whether he

was qualified for intermittent FMLA leave from January 1, 2019, until his termination. (Id. at

p. 6). She also admitted that the City’s employee handbook did not say anything about an

employee’s ability to take leave intermittently, or in separate blocks of time. (Id. at p. 7). To

get FMLA leave, employees had to tell Kurwicki that they were ill because she cannot “read

their minds.” (Id. at p. 6).

On August 4, 2021, Hempen filed a Charge with the Illinois Department of Human

Rights alleging discrimination because of his age and disability under the ADA for failing to

accommodate. (Doc. 37-6). He filed this action on December 20, 2022, alleging FMLA

Interference (Count I) and FMLA Discrimination (Count II). (Doc. 1).

LEGAL STANDARD

Summary judgment is appropriate where there is no genuine dispute of material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In determining

whether a genuine issue of fact exists, the Court views the evidence and draws all reasonable

inferences in favor of the non-moving party. Ziccarelli v. Dart, 35 F.4th 1079, 1083 (7th Cir.

2022). Once the moving party sets forth the basis for summary judgment, the burden shifts

to the nonmoving party who must go beyond mere allegations and offer specific facts

showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986). A moving party is entitled to judgment as a matter of law

where the non-moving party “has failed to make a sufficient showing on an essential element

of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323.

DISCUSSION

“The FMLA generally provides eligible employees suffering from a serious medical

condition with as many as twelve weeks of unpaid leave during any twelve-month period.”

Pagel v. TIN Inc., 695 F.3d 622, 626 (7th Cir. 2012). An employer may not interfere with or

retaliate against an employee’s use or attempted use of FMLA leave. Id. The difference

between an FMLA retaliation and an FMLA interference claim “is that a retaliation claim

requires the employee to prove discriminatory or retaliatory intent while an interference

claim only requires the employee to prove that the employer denied him entitlements

provided by the Act.” Id.

I. FMLA Interference

A plaintiff claiming FMLA interference must demonstrate: “(i) the employee was

eligible for FMLA protections; (ii) the employer was covered by the FMLA; (iii) the employee

was entitled to leave under the FMLA; and (iv) the employee provided sufficient notice of

intent to take FMLA leave.” Ziccarelli v. Dart, 35 F.4th 1079, 1084 (7th Cir. 2022). The plaintiff

must also show that the employer denied or interfered with benefits to which he was entitled

and the plaintiff was prejudiced as a result. Id. at 1089.

The City does not dispute that Hempen was eligible for FMLA protections or that it

was subject to the FMLA, nor does it argue that Hempen cannot establish prejudice from

Nashville’s interference with his FMLA benefits. Instead, it asserts that Hempen was not

entitled to take leave under the FMLA because he has not shown that he had a serious medical

condition that rendered him unable to perform the functions of his job. The City further

argues that it had no notice of Hempen’s intent to take FMLA leave.

A. Entitlement to FMLA Leave

“An employee is entitled to leave under the FMLA if (1) she is afflicted with a ‘serious

health condition,’ and (2) that condition renders her unable to perform the functions of her

job.” Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (quoting Ames v.

Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th Cir. 2011)). A “serious health condition” can

include incapacity and treatment; pregnancy or prenatal care; chronic conditions; permanent

or long-term conditions; or other conditions requiring multiple treatments. 29 C.F.R.

§ 825.115.

The City, focusing only on the first category—incapacity and treatment—contends

that although Hempen claims to have suffered dizziness or vertigo on occasion, there is no

evidence that he has ever been hospitalized for the condition or that he received continuing

treatment by a healthcare provider. As Hempen argues, however, vertigo can constitute a

chronic condition under the FMLA. A “chronic serious health condition” is one that

“(1) [r]equires periodic visits (defined as at least twice a year) for treatment by a health care

provider, or by a nurse under direct supervision of a health care provider; (2) [c]ontinues

over an extended period of time (including recurring episodes of a single underlying

condition); and (3) [m]ay cause episodic rather than a continuing period of incapacity (e.g.,

asthma, diabetes, epilepsy, etc.).” 29 C.F.R. § 825.115(c); see also Hansen v. Fincantieri Marine

Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (“Some serious health conditions may be chronic,

causing episodic rather than a continuous incapacity.”).

Here, Hempen began experiencing symptoms of vertigo after a head injury around

2008. He saw numerous doctors, received an MRI, and was finally diagnosed with Benign

Paroxysmal Positional Vertigo on March 28, 2013. (Doc. 40-3). He was referred to an

otolaryngologist and a neurologist, Dr. Jafar Kafaie, who told Hempen that no medication

would cure his vertigo. (Doc. 39-1 at p. 5). Hempen continued to see doctors and had three

visits in the four months prior to his termination. Hempen also testified that if he had a mild

or moderate episode of vertigo, he would usually have one or two more episodes within a

short period of time. (Doc. 37-10 at p. 8). But if he had a major episode, he could go six months

to a year without having another one. (Id.).

Based on the hundreds of pages of medical records submitted by Hempen that span

from 2010 to 2021 and his testimony regarding his periodic episodes of vertigo during which

he is incapacitated, the Court finds that Hempen has presented evidence that he suffered

from a chronic serious health condition as defined by the FMLA.

B. Notice of Intent to Take Leave

The City also asserts that Hempen never provided notice of his intent to take leave.

“Typically, an employee must give notice of the need for FMLA leave at least 30 days in

advance but, if the need for leave is not known in advance, an employee may give notice ‘as

soon as practicable under the facts and circumstances of the particular case.’” Guzman v.

Brown Cnty., 884 F.3d 633, 639 (7th Cir. 2018) (quoting 29 C.F.R. § 825.303(a)). “The employee’s

primary duty in notifying his employer is to provide enough information to the employer ‘to

show that he likely has an FMLA-qualifying condition.’” Pagel v. TIN Inc., 695 F.3d 622, 628

(7th Cir. 2012) (quoting Burnett v. LFW Inc., 472 F.3d 471, 479 (7th Cir. 2006)).

“[A]n employee may be excused from expressing a need for medical leave in at least

two exceptional situations—when circumstances provide the employer with sufficient notice

of the need for medical leave or when the employee is incapable of providing such notice.”

Burnett, 472 F.3d at 479. “It is enough under the FMLA if the employer knows of the

employee’s need for leave; the employee need not mention the statute or demand its

benefits.” Stevenson v. Hyre Elec. Co., 505 F.3d 720, 726 (7th Cir. 2007) (quoting Byrne v. Avon

Products, 328 F.3d 379 (7th Cir. 2003)). An employer may also acquire constructive notice of

an employee’s serious health condition requiring FMLA leave. Guzman, 884 F.3d at 639.

“Clear abnormalities in an employee’s behavior” can provide constructive notice to an

employer of the need for FMLA leave. Id.

Here, the City argues that Hempen never requested relief under the FMLA, and it had

no constructive notice of his need for FMLA leave. Nashville points to Guzman, where the

Seventh Circuit Court of Appeals found that six incidents of oversleeping due to sleep apnea,

spread out over 18 months, was not the kind of “stark and abrupt change” in an employee’s

behavior that would provide an employer with constructive notice of a serious health

condition. Id. Like Guzman, Nashville contends, Hempen’s occasional need to leave work

because of vertigo and dizziness did not provide it with constructive notice of his serious

health condition.

In response, Hempen argues that the City had knowledge that he might be using sick

time for an FMLA-qualified reason but failed to notify him of his right to intermittent leave

under the FMLA. The Court agrees. There is some evidence that the City knew about

Hempen’s medical condition as early as 2016 or 2017. Hempen had an episode of vertigo

within six to eight months after starting work at the Water Plant, and Leonard had to relieve

him from his shift. (Doc. 39-1 at p. 8). Hempen provided evidence through his testimony and

an affidavit that he told Leonard he had vertigo, that it comes and goes, and there is nothing

he can do about it. (Id.).

Hempen’s wife, Shari, also testified that she had more than one conversation about

Hempen’s vertigo and dizziness with Leonard. (Doc. 39-7 at p. 2). The first time Shari had to

pick Hempen up at work because of his vertigo, she apologized to Leonard for Hempen

vomiting in the trash can and explained his diagnosis. (Id.). Shari provided an affidavit

stating that she spoke with Leonard about Hempen’s vertigo and dizziness six to ten times,

and she told Leonard that Hempen had to go to bed when he got these episodes. (Doc. 39-8).

Leonard testified that he spoke to Shari when she picked Hempen up from work on that first

occasion, but he does not remember what they spoke about. (Doc. 37-13 at p. 4). However,

Leonard did recall Hempen being nauseated at work a couple of times, and he admitted that

he, Middleton, and Koepke all asked Hempen if he had seen a doctor. (Doc. 39-2 at p. 10).

There is also evidence that the City knew of Hempen’s condition after the Effingham

work trip in 2019 and his episode at work in November 2020. Hempen testified that

Middleton, the Superintendent, asked him how he was doing after the work trip and whether

he had seen a doctor. (Doc. 39-5). Hempen told Middleton that he had seen many doctors,

that a physician told him the vertigo would come and go, and that it was something he would

have to deal with. (Id.). Then, after the November 2020 incident, Middleton asked Hempen if

he had ever gone to the doctor to figure out what was going on. (Id.). Furthermore, there is

no dispute that despite the City’s knowledge that Hempen needed sick time for an FMLA-

qualified reason, it made no effort to offer Hempen intermittent FMLA leave or ensure he

understood his rights under the FMLA. (Doc. 37-7 at p. 6).

Viewing these facts in a light most favorable to Hempen, a jury could find that the

City had notice of Hempen’s need for FMLA leave due to a chronic serious health condition,

interfered with his right to take FMLA leave, and that Hempen was prejudiced as a result.

Thus, Nashville is not entitled to summary judgment on Hempen’s FMLA interference claim

in Count I.

II. FMLA Discrimination / Retaliation

Under 29 U.S.C. § 2615(a)(2), it is unlawful for an employer to retaliate against an

employee who exercises or attempts to exercise FMLA rights. “In other words, the employer

cannot use an employee’s use of FMLA leave as a negative factor in promotion, termination,

and other employment decisions.” Pagel, 695 F.3d at 631.

To establish FMLA discrimination or retaliation, “a plaintiff must show that: (1) she

engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal

connection exists between the two.” King v. Ford Motor Co., 872 F.3d 833, 841 (7th Cir. 2017).

“To succeed on a retaliation claim, the plaintiff does not need to prove that retaliation was

the only reason for her termination; she may establish an FMLA retaliation claim by showing

that the protected conduct was a substantial or motivating factor in the employer’s decision.”

Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010) (quotation omitted).

The Seventh Circuit recognizes two frameworks for showing discrimination. Vichio v.

US Foods, Inc., 88 F.4th 687, 691 (7th Cir. 2023). Under the holistic approach that the Court of

Appeals established in Ortiz v. Werner Enterprises, Inc., a court must look at the evidence as a

whole to determine whether it permits an inference of prohibited discrimination. Id. (citing

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 762 (7th Cir. 2016)). Under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must first

establish a prima facie case for discrimination. Id. If the plaintiff presents evidence that he

was meeting the employer’s performance expectations, then the burden shifts to the

employer to present a “legitimate, non-discriminatory reason” for the employment decision.

Id. (citing Bless v. Cook Cnty. Sheriff’s Off., 9 F.4th 565, 574 (7th Cir. 2021)). If the employer

presents a legitimate reason, the burden shifts back to the employee to show the proffered

reason is a pretext for discrimination. Id. In other words, “[t]he defense bears the burden of

articulating the justification, but the plaintiff bears the burden of showing that the

justification is a pretext.” Id. (quoting Sterlinski v. Catholic Bishop of Chicago, 934 F.3d 568, 571

(7th Cir. 2019)). “Pretext means a dishonest explanation, a lie rather than an oddity or an

error.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008) (citation omitted).

A court “may skip the McDonnell Douglas prima facie analysis if the employer raises

the employee’s performance as the reason for the adverse employment decision.” Vichio,

88 F.4th at 691 (citing Bragg v. Munster Med. Rsch. Found. Inc., 58 F.4th 265, 271 (7th Cir. 2023)).

“In such a case, issues of satisfactory performance and pretext overlap,” allowing the court

to move directly to pretext. Id. “Pretext does not require that plausible facts presented by the

defendant not be true, only that they not be the reason for the employment decision.” Id.

(quoting Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1045 (7th Cir. 2000)).

Here, because Nashville has raised Hempen’s work performance as the reason for his

termination, the Court need not consider whether Hempen has set forth a prima facie case

for FMLA discrimination or separately analyze the two frameworks. See id. Instead, the Court

need only determine whether Hempen has presented sufficient evidence that would allow a

reasonable jury to find that the City engaged in FMLA discrimination.

The City asserts that Hempen was fired because he expressed his refusal to participate

in the SCBA testing, and because he left the Water Plant on January 7, 2021, without

permission or advising a supervisor. Leonard testified that, at the time Hempen was fired,

they had a Collective Bargaining Agreement with the Union, and the City had instructed him

to “tighten up all restrictions and rules with the Nashville water plant.” (Doc. 37-13 at p. 10).

Between Hempen’s refusal to take the SCBA test on January 5, 2021, and his leaving work

early without notifying or receiving approval from a supervisor on January 7, 2021, Leonard

believed that termination was required. (Id.). Indeed, Hempen’s termination letter cites the

Collective Bargaining Agreement’s provision requiring immediate discharge for offenses

including “conduct which causes the public to lose confidence in the City’s ability to provide

services, including, but not limited to, threatening the quality of the water supply, the

uninterrupted delivery of services, or any action which could reasonably be interpreted by

the citizens as endangering the safety of the citizens.” (Doc. 37-2).

Hempen has produced no evidence that these reasons are pretextual. While he refers

to another employee who left the Water Plant without permission and only received a write-

up, there was no Collective Bargaining Agreement in place at that time. Hempen also

references a time when Leonard allowed Koepke to use three sick days as vacation time, but

since he wasn’t actually sick, “the leave could not have been approved.” But regardless of

how the leave time was structured, Koepke informed Leonard that he would not be at work.

Hempen did not. Finally, Hempen argues that he also left work on November 19, 2020,

without notifying a supervisor, but he was not fired at that time. Leonard testified, however,

that it was the combination of Hempen’s expressed refusal to do the SCBA test along with

leaving work without notifying a supervisor that led to his termination.

In sum, Hempen has failed to meet his burden of proving that the proffered reasons

for his termination were pretextual. Because Hempen has not produced evidence that would

allow a reasonable jury to find that the City engaged in FMLA discrimination or retaliation,

the City is entitled to summary judgment on Count II.

CONCLUSION

For these reasons, the Motion for Summary Judgment filed by Defendant City of

Nashville, Illinois (Doc. 37) is GRANTED in part and DENIED in part. Plaintiff Michael

Hempen’s claim of FMLA Discrimination in Count II is DISMISSED.

A status conference will be set by separate order to set a firm trial date on Hempen’s

claim in Count I for FMLA Interference.

IT IS SO ORDERED.

DATED: February 24, 2025 Tl

wef pons’

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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