Opinion
CAUSE NO. IP 01-0788-C T/K
September 30, 2003
ENTRY ON OBJECTIONS TO REPORT AND RECOMMENDATION AND ORDER RE-OPENING DISCOVERY AND DIRECTING ADDITIONAL BRIEFING
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Krzysztof Chalimoniuk's employment with Interstate Brands Corporation ("IBC") was terminated. He had been absent from work on July 31 and August 2 and 3, 2000, and, as a result, accumulated ten points under IBC's attendance policy. IBC claims that he was terminated because he exceeded the allowable point total under the policy. Mr. Chalimoniuk alleges that these absences were covered by the Family Medical Leave Act ("FMLA") so that he should not have accumulated any attendance points and his termination violated the FMLA.
This case is before the court on the parties' objections to Magistrate Judge Tim A. Baker's Report and Recommendation on Pending Motions (the "RR"). A familiarity with the thorough and well-written RR is presumed. The undersigned sincerely appreciates the Magistrate Judge's efforts to focus the issues in this case. Having considered the parties' objections to the RR and their responses thereto and having reviewed the record de novo, the undersigned decides as follows.
I. BACKGROUND
The undersigned adopts the background section set forth by the Magistrate Judge in his RR. The reader is referred to that section as it would be redundant to repeat it here, see RR at 3-9.
II. DISCUSSION
This matter was referred to Magistrate Judge Baker pursuant to Rule 72 of the Federal Rules of Civil Procedure for rulings on all nondispositive motions and for the issuance of a report and recommendation on all dispositive motions. A district judge may not set aside or modify a magistrate judge's order on a nondispositive matter unless the order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). An order is clearly erroneous only if the district court "on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see also United States v. Spruill, 296 F.3d 580, 591 (7th Cir. 2002) (quotation omitted).
A district judge may accept, reject or modify a magistrate judge's recommended disposition of a dispositive motion. Fed.R.Civ.P. 72(b). When considering objections to such a recommendation, the district judge conducts a "de novo determination upon the record[.]" Id.; see also Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). Under these standards, the undersigned evaluates the parties' objections to the RR.
A. Mr. Chalimoniuk's Standing
The first matter to be addressed is standing. The Plaintiff does not object to the recommendation that the Defendants' motion for summary judgment on the issue of his standing be denied as moot. However, he argues that he has standing to assert his claims to equitable relief and relief beyond that necessary to satisfy the claim of the bankruptcy estate. Mr. Chalimoniuk cites no legal authority for support.
Magistrate Judge Baker was correct in concluding that " only the trustee has standing to prosecute or defend a claim belonging to the estate." (RR at 10 (quoting Cable v. Ivy Tech State Coll., 200 F.3d 467, 472 (7th Cir. 1999) (citation omitted)). The estate "is comprised of . . . all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541 (a)(1). "The phrase `legal or equitable interests . . . in property' includes choses in action and other legal claims that could be prosecuted for benefit of the estate." Cable, 200 F.3d at 472 (citation omitted). The Plaintiff's objection to the RR's recommendation that he lacks standing is therefore OVERRULED, and the Defendants' motion for summary judgment on the Plaintiffs standing is DENIED AS MOOT because Richard L. Darst, as Trustee for the Bankruptcy Estate of Krzysztof Chalimoniuk, has been joined as a Plaintiff.
B. The Treatment Issue
That brings the court to the heart of this case — whether Mr. Chalimoniuk's absences from work on July 31 and August 2 and 3 were for treatment for his substance abuse problem such that his absences were covered by the FMLA.
The Plaintiff objects to the recommendation that the court deny his motion for partial summary judgment on the issue of treatment. The Defendants object to the recommendation that the court deny their motion for summary judgment on the Plaintiff's interference claim. For the reasons explained below, the Plaintiffs objection is OVERRULED, the Defendants' objection is SUSTAINED, the Plaintiff's motion for partial summary judgment on the treatment issue is DENIED, and the Defendants' motion for summary judgment on the interference claim will be GRANTED on the ground that the Plaintiff has offered insufficient evidence to raise a genuine issue as to whether his July 31 and August 2 and 3, 2000, absences were for treatment and thus covered by the FMLA.
The Magistrate Judge correctly concluded that there was a disputed fact as to when Mr. Chalimoniuk began his treatment during the July-August absence period. The evidence beneficial to the Plaintiff on this issue includes Dr. Kelly's affidavit and certification and Dr. Pfeifer's assertion that treatment began on July 29, 2000. This evidence, however, does not suffice to get the Plaintiff to a jury. When Mr. Chalimoniuk's treatment began is not the critical inquiry; rather, the crux of this case is whether Mr. Chalimoniuk's absences from work were for, that is, because of, his treatment for substance abuse.
Under the FMLA, leave may not be taken simply because of a substance abuse problem; the employee's absence for which FMLA leave is sought must be caused by treatment for substance abuse. One of the regulations implementing the FMLA expressly provides that:
Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.29 C.F.R. § 825.114(d). A regulation implementing the FMLA is entitled to deference, see Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), if "based on a reasonable reading of the statute," see United States v. Dierckman, 201 F.3d 915, 923 (7th Cir. 2000). In the undersigned's opinion, § 825.114(d) is based on a reasonable interpretation of the FMLA. Other courts have likewise determined that the regulation is entitled to deference and, in fact, should be given "controlling weight" under Chevron. See Sloop v. ABTCO, Inc., No. 98-2440, 178 F.3d 1285, 1999 WL 280281, at *2 (4th Cir. May 6, 1999) (per curiam), cert. denied, 528 U.S. 930 (1999).
The Fourth Circuit's rules do not prohibit the citation to this opinion even though it is unpublished. See U.S. Ct. App. 4th Cir. Rule 36(c).
As Magistrate Judge Baker succinctly stated the issue in his Entry Discussing Plaintiffs Motion for Summary Judgment and Defendants' Rule 56(f) Motion:
If . . . Chalimoniuk did not receive medical treatment until August 4th, or his absences were due to his substance abuse and not for treatment thereof, his previous absences would not be covered under the FMLA, permitting Defendants to lawfully terminate his employment since the absences were not covered under the FMLA.Chalimoniuk v. Interstate Brands Corp., 172 F. Supp.2d 1055, 1058 (2001) (citing 29 C.F.R. § 825.114(d) ("absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.")). Other courts have held that an employee's absences related to substance abuse are not covered under the FMLA unless the absences are for the treatment for substance abuse. Sloop, 1999 WL 280281, at *2-3 (affirming summary judgment for defendant employer where plaintiff former employee's absence from work was due to the consumption of alcohol and not due to treatment); Jeremy v. Northwest Ohio Dev. Ctr., 33 F. Supp.2d 635, 638-39 (N.D. Ohio 1999) (holding employee not entitled to FMLA leave because none of his leave requests were for a leave of absence for treatment of alcoholism); accord Washington v. Bosch Braking Sys. Corp., No. 1:98-CV-855, 1999 WL 1566473, at *3 (W.D. Mich. Nov. 24, 1999) ("Substance abuse only qualifies as a serious health condition for which leave may be taken where the leave is taken for treatment by a health care provider."). These courts have correctly interpreted the FMLA regulation regarding substance abuse.
The Plaintiff argues that neither Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997), nor Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir. 2000), stands for the proposition that he has to show that he was receiving treatment on each day he was absent. Even if Mr. Chalimoniuk's view of these cases is correct, § 825.114(d) does require him to show that he was receiving treatment on each day for which he was absent. In fact, under this regulation, he must do even more: He must establish that his absences were for treatment rather than merely because of his use of alcohol.
The Magistrate Judge erred in deferring to Mr. Chalimoniuk's physicians' opinions regarding when Mr. Chalimoniuk's treatment began and whether he was in treatment. The Magistrate Judge is correct in stating that medical determinations should be made by health care providers rather than the courts, see, e.g., Cavin v. Honda of Am., Mfg., Inc., No. C2-00-400, 2002 WL 484521, at *20 (S.D. Ohio Feb. 22, 2002); Washington v. Fort James Operating Co., 110 F. Supp.2d 1325, 1333 (D. Ore. 2000). The critical issues in this case, however — whether Mr. Chalimoniuk was in treatment for purposes of the FMLA and whether his absences from work on July 31 and August 2 and 3 were due to his treatment for alcoholism — are not strictly medical determinations. "Treatment" is defined under the FMLA's regulations, specifically 29 C.F.R. § 825.114(b). The meaning of a federal regulation is not a factual issue, but a legal issue, and as such is for the court to decide. See, e.g., Bammerlin v. Navistar Int'l Trans. Corp., 30 F.3d 898, 900 (7th Cir. 1994). Therefore, the meaning of "treatment" in § 825.114(d) is a question of law for the courts, not the physicians, to decide. The determination of the second issue does not involve only a medical determination, but involves consideration of a multitude of factors, of which a medical opinion is only a part.
It follows, then, that the Plaintiffs doctors' opinions about whether and when Mr. Chalimoniuk was in treatment are not conclusive. Under the doctors' view, "treatment" often begins with an initial phone call to a health care profession. The controlling FMLA regulation gives meaning to the term "treatment" for purposes of defining a serious health condition under the FMLA. 29 C.F.R. § 825.114(b). The regulation expressly states that the definition is not limited to the examples set forth therein; however, the legal conclusion that something qualifies as "treatment" for FMLA purposes must be guided by the examples provided in the regulation. There is a meaningful difference between what "treatment" means to the Plaintiffs doctors and what "treatment" means for purposes of the FMLA. This court must apply the legal meaning. Furthermore, the main point of § 825.114(d) is that an employee's treatment for substance abuse must cause the employee's absence from work. 29 C.F.R. § 825.114(d) ("absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave"). The evidence from the Plaintiffs physicians fails to speak to this issue.
Even accepting Mr. Chalimoniuk's doctors' opinions regarding "treatment," their statements at best raise a disputed issue regarding whether he was in treatment for some period of time on the days in question (July 31 and August 2 and 3). The doctors have offered no specifics about the particular type or kind of treatment that Mr. Chalimoniuk received, or the length or duration of treatment for each day in question. It is undisputed, however, that, for whatever reason, Mr. Chalimoniuk did not undergo any inpatient treatment until August 4. The physicians' statements that services were provided to Mr. Chalimoniuk and he was unable to work from July 29, 2000, through August 10, 2000, are too conclusory to support a reasonable inference that he was in treatment the whole time he was absent from work on July 31, August 2 and August 3. Pointedly, the physicians do not indicate that Mr. Chalimoniuk's treatment on July 29 or August 2 or 3 occurred throughout the entirety of each day, or during the hours Mr. Chalimoniuk was supposed to be at work; nor do they state that Mr. Chalimoniuk was unable to work on those dates because his treatment prevented him from working. Therefore, the physicians' statements fail to raise a reasonable inference that the Plaintiff's absences on July 29 and August 2 and 3 were for treatment.
Instead, the evidence as a whole raises only one reasonable inference: Mr. Chalimoniuk was absent from work for treatment for alcoholism only commencing on August 4, when he entered Fairbanks' inpatient facility. The Plaintiff offers no evidence to raise a reasonable inference that prior to August 4 he had any examination or evaluation to determine if he had a serious health condition, which are identified by the applicable regulation as examples of treatment for purposes of the FMLA. 29 C.F.R. § 825.114(b). A phone call can be initiated without a visit to a health care provider; indeed, it was through phone calls that Mr. Chalimoniuk attempted to schedule appointments with health care providers. The court concludes that a mere phone call to initiate contact with a health care provider and/or arrange for treatment or a visit with such a provider simply does not constitute "treatment" under the FMLA regulation. See 29 C.F.R. § 825.114(b) (an activity "that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regiment of continuing treatment for purposes of FMLA leave"); Joslin v. Rockwell Int'l Corp., 8 F. Supp.2d 1158, 1160 (N.D. Iowa 1998) (concluding that employee's adverse reaction to allergy shot was not a serious health condition under FMLA where the plaintiff spoke with her doctor on the telephone but never received any treatment and was given no restrictions). Even assuming that Mr. Chalimoniuk's various phone calls to treatment providers and to obtain insurance coverage should be considered treatment for purposes of the FMLA, Mr. Chalimoniuk was in treatment for only a few minutes a day, i.e., for the length of his phone calls. Therefore, his July 31 and August 2 and 3 absences were not "for treatment" and, consequently, were not covered by the FMLA.
An employee who alleges that his employer interfered with his substantive rights under the FMLA bears the burden of proving "by a preponderance of the evidence, that he is entitled to the benefit he claims." Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997); see also Rice v. Sunrise Exp., Inc., 209 F.3d 1008, 1017-18 (7th Cir. 2000) (stating that the employee always bears the burden of establishing his right to FMLA leave). Even when the record is viewed in the light most favorable to Mr. Chalimoniuk and all reasonable inferences are drawn in his favor, the Plaintiff simply cannot sustain that burden here. It is not enough for Mr. Chalimoniuk to raise a reasonable inference that he was receiving treatment beginning on July 29 and including July 31 and August 2 and 3. Rather, he must raise a genuine issue as to whether his absences on the 31st, 2nd and 3rd were for treatment for his alcoholism. He cannot do so based on the record before the court. Therefore, the court finds that no reasonable trier of fact could find that Mr. Chalimoniuk's July 31 and August 2 and 3 absences were covered by the FMLA.
Mr. Chalimoniuk suggests that IBC granted him FMLA leave for his absences for alcoholism on February 8 and 9, 2000, implicitly suggesting his absences were not "for treatment." If the IBC mistakenly determined that those absences were covered by the FMLA, the Plaintiff offers no authority, and the court is unaware of any, which suggests that IBC is forever bound by its prior error in interpreting the FMLA and its regulations.
The evidence, when viewed most charitably toward the Plaintiff, directs the conclusion that Mr. Chalimoniuk was in treatment for only a very small part of the time for which he was supposed to be at work on July 31 and August 2 and 3. The court feels compelled to note that the record strongly suggests that he did not work on these days simply because he was too drunk (or hung over) to work. However, the court's rulings are not based on such an inference; it is enough that Mr. Chalimoniuk cannot establish that his absences on these days were "for treatment."
The Defendants contend that Mr. Chalimoniuk was entitled to FMLA leave "only for treatment for his alcoholism." (Defs.' Suggestions Supp. Mot. Summ. J. at 2.) They are absolutely correct. Mr. Chalimoniuk cannot raise a reasonable inference that his July 31 and August 2 and 3 absences were for treatment for his alcoholism. He therefore cannot establish entitlement to FMLA leave for those absences, and the Defendants are entitled to summary judgment on the claim that they denied him substantive rights under the FMLA Accordingly, the court OVERRULES the Plaintiff's objections to the Magistrate Judge's recommendation that his motion for partial summary judgment on the issue of treatment be denied and DENIES that motion; and the court SUSTAINS the Defendants' objection to the recommendation that their motion for summary judgment on the FMLA interference claim be denied and will GRANT that motion.
C. The Certification Issue
The Plaintiff contends that the Defendants have offered no admissible evidence regarding the sufficiency of the medical certification. The undersigned, however, agrees with the Magistrate Judge that the Defendants have not challenged the sufficiency of the certification, but rather, its validity. ( See RR at 18-19 n. 4.) The Plaintiff has not argued that his certification was incomplete; he asserts the contrary.
Magistrate Judge Baker also was correct in following the approach taken by Rhoads v. F.D.I.C., 257 F.3d 373 (4th Cir. 2001), cert. denied, 535 U.S. 933 (2002), and Stekloff v. St. John's Mercy Health Sys., 218 F.3d 858 (8th Cir. 2000), in deciding whether an employer that denies an FMLA leave request without seeking a second or third medical opinion as allowed under 29 U.S.C. § 2613 may later challenge the validity of the certification. ( See RR at 19-22.) This approach is well-reasoned and consistent with the permissive language of § 2613(c)(1). The Plaintiff errs in claiming that only the Defendants' sur-reply addresses whether their failure to contest the validity of the certification at the time it was given precludes them from contesting it now. ( See Defs.' Resp. Pl.'s Mot. Partial Summ. J. Mot. Partial Summ. J. Re: Treatment, filed 4/8/02, at 25-27 n. 6.)
Therefore, the court concludes that Mr. Chalimoniuk is not entitled to summary judgment on the basis of the Defendants' failure to notify him that they believed his medical certification was insufficient and provide him with an opportunity to cure that insufficiency. The Plaintiffs objection to the recommendation that he be denied summary judgment on the certification issue is OVERRULED, and his summary judgment motion on this issue is DENIED.
D. The Issue of Notice of the Need for FMLA Leave
The Defendants have also argued that they are entitled to summary judgment on the Plaintiffs claim that they denied him his FMLA rights because he failed to give IBC proper notice that he was seeking FMLA leave for his July 31 through August 3, 2000 absences. Magistrate Judge Baker found a genuine issue of material fact regarding whether Mr. Chalimoniuk gave IBC prompt and appropriate notice of his need for FMLA leave for these absences. (RR at 24-25.) The Defendants objected to this finding. Resolution of the treatment issue renders it unnecessary for the court to reach the issue of whether the Plaintiff gave IBC proper notice of the alleged need for FMLA leave.
E. Retaliation, Last Chance Agreements and Re-Opening Discovery
Mr. Chalimoniuk alleged that the Defendants retaliated against him for exercising his rights under the FMLA in February 2000 and August 2000 by subjecting him to repeated drug tests, denying him FMLA leave, and terminating his employment. In moving for summary judgment on the retaliation claim, the Defendants advanced the following arguments: (1) the Plaintiff cannot establish a prima facie case of retaliation because he lacks any evidence of a connection between his FMLA leave requests of February 2000 and his alleged denial of FMLA leave and termination in August 2000, and the time lapse between February and August 2000 is too long to raise an inference of causation; and (2) even if he could demonstrate a prima facie case, IBC has stated a legitimate, nondiscriminatory reason for his termination and Mr. Chalimoniuk cannot create an inference of pretext.
A retaliation claim based on the Plaintiff having to submit to repeated drug tests cannot survive summary judgment. Mr. Chalimoniuk does not dispute that the only random drug test to which he was subjected took place in November 1999, which was before his alleged exercise of FMLA rights in February or August of 2000. And, as stated by the Magistrate Judge, the Plaintiff's claims of being subjected to repeated breath alcohol tests are unsupported by the record evidence, and the Plaintiff seems to abandon this claim. ( See RR at 32 n. 7.) Therefore, the claimed retaliation in the form of subjection to drug testing cannot withstand the summary judgment motion.
With respect to the February 2000 leave, the Magistrate Judge concluded that the Plaintiff could not establish a prima facie case of retaliation because he could not establish a causal connection between the alleged protected activity and his termination. (RR at 32-33.) The Magistrate Judge also decided that even assuming that the Plaintiff could establish a prima facie case, his claim of retaliation for the February 2000 leave fails to withstand summary judgment because he cannot show that the Defendants' stated reasons for terminating him were pretexts. ( Id. at 33-36.) The Plaintiff objects to both conclusions.
In Stone v. City of Indianapolis, 281 F.3d 640 (7th Cir.), cert. denied, 123 S.Ct. 79 (2002), and again in Rogers v. City of Chicago, 320 F.3d 748, 755 (7th Cir. 2003), the Seventh Circuit clarified the appropriate standard for proving retaliation in employment under the indirect method of proof, the method under which Mr. Chalimoniuk proceeds. Under this standard, a plaintiff must:
show that after . . . [taking the protected action] only he, and not any similarly situated employees who did not . . .[take the protected action], was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial.Rogers, 320 F.3d at 754-55 (quoting Stone, 281 F.3d at 644); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003). This standard eliminates the need for proof of a "causal link" between the protected action and adverse action. Johnson, 325 F.3d at 897; Rogers, 320 F.3d at 755. Thus, the lack of evidence of a causal link between Mr. Chalimoniuk's February 2000 medical leave and his August 2000 termination is not fatal to his claim.
There has been some confusion among the district courts in the circuit about the appropriate standard for proving retaliation in an employment case under the indirect method of proof, so understandably the Magistrate Judge may have applied the wrong standard.
The second ground on which the Defendants sought summary judgment was that IBC had a legitimate, nondiscriminatory reason for his termination and Mr. Chalimoniuk cannot create an inference of pretext. Mr. Chalimoniuk attempted to show pretext with evidence that four "last chance agreements" were offered by IBC to three similarly situated employees, whereas, he was not offered such an agreement. The Magistrate Judge found that Mr. Chalimoniuk failed to demonstrate that these employees were similarly situated to him. The Magistrate Judge reasoned that the evidence showed that last chance agreements were entered into between the Union and IBC, and the Union never pursued a last chance agreement on the Plaintiff's behalf. The RR thus recommended that summary judgment be granted the Defendants on the retaliation claim. The court, however, TAKES UNDER ADVISEMENT the Plaintiffs objection to this recommendation because in all fairness Mr. Chalimoniuk should have the opportunity to take additional discovery as to last chance agreements.
In motions directly related to the retaliation issue, Mr. Chalimoniuk moved the court to strike all references to last chance agreements and re-open discovery so he could conduct follow-up discovery on the agreements produced by the Defendants after the close of discovery. The court agrees with Magistrate Judge Baker that the former motion should be DENIED AS MOOT as production of the agreements was compelled by court order of May 21, 2002. ( See RR at 35 n. 10.)
The Magistrate Judge recommended that the motion to re-open discovery be denied as any further discovery would be pointless in light of the recommendation to dismiss the retaliation claim. ( Id. at 35 n. 10.) The latter recommendation was based on the conclusion that Mr. Chalimoniuk could not demonstrate a causal link and, thus, could not establish a prima facie case of retaliation. Since proof of a causal link is no longer required, the inability to prove a link is not a sufficient reason to deny Mr. Chalimoniuk the opportunity to take further discovery on last chance agreements.
Moreover, the undersigned finds that the need for filing a Rule 56(f) motion should be excused under the circumstances presented. The Entry on Plaintiffs Motion to Compel Discovery and Related Motions denied as unripe the motion to re-open discovery to take additional discovery related to last chance agreements. (Entry of 5/22/02 at 11.) That entry indicated that the issue would be more properly addressed in an entry on the cross-motions for summary judgment; and that after receiving the documents for which production was compelled, the Plaintiff could seek leave to re-open discovery if necessary. ( Id.) Although Mr. Chalimoniuk did not file a Rule 56(f) motion, he could have believed based on the May 22 Entry that a motion to re-open discovery would suffice.
The RR noted that the proper procedural method for making a request to re-open discovery would have been a Fed.R.Civ.P. 56(f) motion, but the recommended denial of the motion to re-open discovery does not appear to hinge on the failure to file such a motion. ( Id.)
Furthermore, evidence relating to the last chance agreements is critical to Mr. Chalimoniuk's ability to withstand summary judgment: It is with this evidence that he intends to show that the Defendants' enforcement of IBC's attendance policy was non-uniform and discriminatory. And, the evidence about the last chance agreements is really all that he has. The other evidence which he offers — an "office supervisor" treated him like an alcoholic when he would call in sick to work — is insufficient to show pretext because Mr. Chalimoniuk has not shown that this person had any role in the decisions to deny him leave or terminate his employment. ( See RR at 36.)
Ultimately, the evidence regarding last chance agreements may be insufficient to rebut the Defendants' explanation that Mr. Chalimoniuk was discharged because of his violation of IBC's attendance policy. Without knowing exactly what the Plaintiff's discovery will uncover and what his evidence will be, however, the possibility cannot be ruled out at this stage of the proceedings.
The court finds good cause exists for re-opening discovery on last chance agreements. Mr. Chalimoniuk sought production of last chance agreements in November 2002, well before the March 2003 discovery deadline; the Defendants refused production, prompting the motion to compel, which was filed before expiration of the deadline; and the motion was granted, but, due to the time required for briefing and ruling, was not granted until after discovery had closed. Had the Defendants produced the last chance agreements in response to the Plaintiffs November 2002 discovery requests, Mr. Chalimoniuk could have taken follow-up discovery before the deadline passed.
The Defendants argue that the Plaintiff could have sought discovery related to last chance agreements despite the lack of production of the last chance agreements, for example, he could have asked Tonia Gordon at her deposition about last chance agreements; deposed Cathy Sites, IBC's Human Resources Manager until late 2001 about the agreements (the Defendants state that Ms. Gordon testified at her February 13, 2002, deposition that Ms. Sites was responsible for entering into such agreements); or sought information from the Union about the agreements. However, the court does not find it unreasonable for Mr. Chalimoniuk to want to first review the last chance agreements themselves before seeking further discovery. The agreements could reveal a lot of relevant information: to whom they were given, when, and under what circumstances. Such basic information could prove quite helpful in framing follow-up discovery.
The Defendants provide various reasons why Mr. Chalimoniuk was not offered a last chance agreement. In their view, the evidence forecloses the possibility that last chance agreements were offered in a discriminatory way. However, Mr. Chalimoniuk has not yet had a fair chance to test the Defendants' evidence. What is uncontested and unsupported by the evidence today may change once he conducts follow-up discovery. From all indications in the record, though, it seems unlikely that the evidence regarding last chance agreements will be overwhelming evidence of pretext, and the evidence may not be sufficient for the Plaintiff to avoid summary judgment. For instance, it appears that at least one last chance agreement was offered to an employee who attempted to invoke FMLA leave, and if this happened, it might undercut Mr. Chalimoniuk's claim that he was not offered a last chance agreement because he took FMLA leave. Nonetheless, the Plaintiff should be given a full and fair opportunity to develop the evidence on this matter.
Therefore, the court SUSTAINS the Plaintiff's objection to the recommendation that his motion to re-open discovery be denied and finds that his motion to re-open discovery should be GRANTED to allow him an opportunity to support his retaliation claim. The Plaintiffs motion to re-open discovery identifies the following discovery he wants to take: question Tonia Gordon and Cathy Sites under oath about the last chance agreements which were produced; depose unidentified employees and former Union business agents associated with last chance agreements with IBC; and conduct additional written discovery related to last chance agreements and the Defendants' involvement with such agreements. The court presumes that the unidentified employees to whom the Plaintiff refers are the employees who received last chance agreements: Michael Patton, Stephanie Perkins, and Jeanetta Seats. Discovery will be re-opened through December 1, 2003, for the limited purpose of allowing the Plaintiff to take the discovery indicated in this paragraph.
As for Mr. Chalimoniuk's retaliation claim based on his August 2000 request for leave, the court agrees with the Magistrate Judge that this claim is properly characterized as "substantive" rather than retaliation. See Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000). And, as in Gilliam, whether this claim is substantive or not matters little to Mr. Chalimoniuk because the success of this claim turns on the same issue-whether he was entitled to FMLA leave for his July 31 and August 2 and 3 absences. As discussed above, Mr. Chalimoniuk has offered insufficient evidence to raise a genuine issue as to whether he had a substantive right to FMLA leave for his absences on July 31 and August 2 and 3. Because he cannot establish a right to FMLA leave for these absences, the claim of a wrongful denial of a right to such leave must fail.
Moreover, even assuming that the Plaintiff could properly frame a retaliation claim arising out of the denial of his August 11 request for medical leave, because he cannot show that he had a right to FMLA leave for his July 31 and August 2 and 3, 2000 absences, he cannot show that he engaged in a statutorily protected act. It therefore follows that Mr. Chalimoniuk could not establish a prima facie case of retaliation under the FMLA based on his August 2000 leave request. See, e.g., Horwitz v. Bd. of Educ. of Avoca Sch. Dist. 37, 260 F.3d 602, 616 (7th Cir. 2001) (identifying engagement in protected activity as an element of a prima facie case of retaliation under the FMLA); King v. Preferred Tech. Group, 166 F.3d 887, 892 (7th Cir. 1999) (same). As a result, the Defendants would be entitled to summary judgment on a retaliation claim based on the August 2000 medical leave request.
F. The Defendants' Sur-Reply
Mr. Chalimoniuk objects to the recommendation that his motion to strike portions of the Defendants' sur-reply in support of summary judgment be denied. The RR misunderstands his motion to concern the responses to his Statement of Additional Evidence on Reply numbers 69-71. Rather, the motion is directed to Section I of the Defendants' sur-reply, which addresses the sufficiency of Mr. Chalimoniuk's medical certification rather than any additional evidence offered by the Plaintiff on reply.
Mr. Chalimoniuk is correct in his interpretation of Local Rule 56.1(d), but the Defendants are correct in arguing that the sufficiency of Mr. Chalimoniuk's certification has not been challenged, see supra at 12. Thus, Section I of the Defendants' sur-reply neither adds nor detracts anything from the real issues at hand.
The Plaintiff also moved to strike footnote 3 in the Defendants' sur-reply which he asserts contains an ad hominen attack on his counsel. The comment in the footnote did not require any response by the Plaintiff and requires no further comment here. Motions to strike such as this one are a distraction from the real issues in the case. Accordingly, the court OVERRULES the Plaintiff's objections to the recommendation that his motion to strike be denied, and the Plaintiff's motion to strike portions of the Defendants' sur-reply is DENIED.
G. Plaintiff's Statements of Fact 9 and 13
Mr. Chalimoniuk requests that the court deem admitted as against the Defendants his Statements of Fact Numbers 9 and 13 from his August 20, 2001, motion for partial summary judgment. ( See Pl.'s Reply Summ. J. at 2 n. 2.) The RR recommended that this motion be denied and that the Defendants' failure to timely respond to these factual statements be excused "due to the procedural difficulties and the numerous motions and cross motions filed by the parties in this case". (RR at 12.) In addition, the Magistrate correctly described Statement of Fact 13 as resembling argument rather than pure factual assertions. The undersigned agrees with the Magistrate Judge's assessment and adds that Mr. Chalimoniuk has not shown how he is prejudiced if the facts are not deemed admitted; the court can conceive of no such resulting prejudice.
After the Plaintiffs August 20 motion was filed, the Defendants filed a Rule 56(f) motion which was granted and the deadline for their response enlarged ultimately to March 11, 2002. However, on March 8, the Plaintiff filed a statement of supplemental facts to which the Defendants responded on April 8, 2002. The first twenty-six supplemental facts in the March 8 filing were the same as the factual assertions in the August 20 motion. Even if the Defendants' response was technically untimely, it was filed within thirty days of the March 8 filing, and the Plaintiff cannot show prejudice from such a technical violation. Cases should not be resolved on mere technicalities alone.
Moreover, the Plaintiff's Statement of Fact 9 pertains to IBC's attendance policy and the number of accrued points which allow for a discharge under the policy. This statement of fact is reiterated in the Plaintiff's Statement of Material Facts as part of the Plaintiff's motion for partial summary judgment on the treatment issue; the assertion is Fact 2. IBC has admitted this factual assertion. Therefore, the motion to deem Statement of Fact 9 admitted presents a non-issue.
As for the Plaintiffs Statement of Fact 13, this fact asserts that "During his absence, Chalimoniuk was treated for his illness, including treatment for alcohol dependence and acute withdrawal syndrome at Fairbanks Hospital's inpatient facility." The Defendants do not dispute that at some time during the Plaintiff's July-August 2000 absence, Mr. Chalimoniuk was treated for his illness, including treatment at Fairbanks Hospital. Even if this fact were deemed admitted, such an admission would not inhibit the Defendants' ability to challenge the dates, duration and extent of the treatment Mr. Chalimoniuk received during his absence.
For all these reasons, the undersigned OVERRULES the Plaintiffs objection to the recommendation regarding his motion to deem Statement of Facts 9 and 13 admitted, and the Plaintiff's motions to deem facts admitted are DENIED.
H. Recommendations Without Any Objection
Magistrate Judge Baker made several recommendations to which no objection was made, namely that: the court grant the Defendants' motion for summary judgment on the Plaintiffs contract claims; the court grant the Plaintiffs motion for summary judgment on the issue of whether Defendant Gordon is an "employer" under the FMLA; the court deny the Plaintiffs motion to deem facts admitted as against Gordon and IBC, with the exception of Facts 9 and 13; and the court deny the Plaintiffs request for oral argument. The court agrees with these recommendations, and adopts the Magistrate Judge's reasoning as the undersigned's own. ( See RR at 11-13, 14-15, 38-39 n. 12.) Accordingly, the above-identified motions to which no objections were made will be GRANTED.
III. CONCLUSION
For the foregoing reasons:
(1) the Plaintiff's objection to the conclusion that he lacks standing is OVERRULED and the Defendants' motion for summary judgment on the issue of the Plaintiff's standing is DENIED AS MOOT;
(2) the Plaintiffs objection to the recommendation that his motion to strike be denied is OVERRULED and his motion to strike portions of the Defendants' sur-reply in support of summary judgment is DENIED;
(3) the Plaintiff's objection to the recommended denial of his motions to deem admitted his Statements of Fact 9 and 13 is OVERRULED and his motions to deem admitted his statements of material fact from his August 20 motion are DENIED;
(4) the Plaintiffs objection to the recommendation regarding his motion for partial summary judgment on the issue of treatment is OVERRULED and the Plaintiffs motion for partial summary judgment on this issue is DENIED;
(5) the Plaintiffs objection to the recommendation that he be denied summary judgment on the certification issue is OVERRULED, and his motion for summary judgment on this issue is DENIED;
(6) the Defendants' objection to the recommendation regarding their motion for summary judgment on the FMLA interference claim is SUSTAINED and this motion will be GRANTED;
(7) the Plaintiffs objections to the recommendations as to his retaliation claim and the Defendants' motion for summary judgment on the FMLA retaliation claim are TAKEN UNDER ADVISEMENT;
(8) the Plaintiff's objection to the recommended denial of his motion to strike all references to last chance agreements is OVERRULED and his motion to strike all references to last chance agreements is DENIED AS MOOT;
(9) the Defendants' motion for summary judgment on the contract claims will be GRANTED;
(10) the Plaintiffs motion to deny the Defendants' motion for summary judgment is DENIED as to the interference claim but TAKEN UNDER ADVISEMENT as to the retaliation claim;
(11) the Plaintiff's motion for summary judgment on whether Gordon is an "employer" under the FMLA will be GRANTED;
(12) the Plaintiffs request for oral argument is DENIED;
(13) the Plaintiffs objection to the recommendation that his motion to re-open discovery be denied is SUSTAINED and the Plaintiffs motion to re-open discovery is GRANTED so the Plaintiff can conduct limited follow-up discovery on last chance agreements as described in this entry, see supra at 19-20; and
(14) the court does not reach the Defendants' objection to the recommendation that they be denied summary judgment on the Plaintiffs interference claim based on the issue of notice because the court has decided that the Defendants are entitled to summary judgment on this claim based on the issue of treatment.
The Plaintiff is ALLOWED to and including December 1, 2003, to take the limited discovery allowed by this entry, see supra at 19-20.
The Plaintiff is ALLOWED to and including January 5, 2004, to supplement his briefing with respect to, and only with respect to, last chance agreements in connection with his retaliation claim, and Defendants are ALLOWED to and including January 23, 2004, within which to reply, which reply shall be limited to the matters raised in the Plaintiffs supplemental brief.
Entry of judgment will await disposition of the remaining claims as they are closely related to those claims for which summary judgment is appropriate.
ALL OF WHICH IS ENTERED.