HEIDI K. CHAN, Plaintiff, v. LOYOLA UNIVERSITY MEDICAL CENTER, Defendant.
No. 97 C 3170
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1999 U.S. Dist. LEXIS 2790
March 3, 1999, Docketed
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1999 U.S. Dist. LEXIS 2790
March 3, 1999, Docketed
DISPOSITION: [*1] Parties' cross-motions for
summary judgment denied.
COUNSEL: For HEIDI K CHAN, plaintiff: Ronald Barry
Schwartz, Hedberg, Tobin, Flaherty & Whalen, P.C.,
Chicago, IL.
For LOYOLA UNIVERSITY MEDICAL CENTER,
defendant: Richard F. Nelson, Richard F. Nelson &
Associates, Chicago, IL.
JUDGES: JOAN B. GOTTSCHALL, United States
District Judge.
OPINIONBY: JOAN B. GOTTSCHALL
OPINION: MEMORANDUM OPINION AND ORDER
Plaintiff Heidi K. Chan brings this action against
defendant Loyola University Medical Center pursuant to
the Family and Medical Leave Act (FMLA), 29 U.S.C.
2601 et seq. Chan claims that Loyola failed to provide her
notice -- as required under the FMLA -- that her leave of
absence due to her injury would count against her annual
FMLA leave and that her paid sick leave and vacation time
would run concurrently with her 12-week FMLA leave.
Both parties have moved for summary judgment. For the
reasons stated below, the cross-motions for summary
judgment are denied.
I. BACKGROUND
A. General Purpose of FMLA and Applicable Provisions
The FMLA was enacted because Congress found, among
other things, "inadequate job security for employees who
have serious health conditions [*2] that prevent them
from working for temporary periods." 29 U.S.C.
2601(a)(4). The purposes of the Act include "balancing the
demands of the workplace with the needs of families" and
"entitling employees to take reasonable leave for medical
reasons." 29 U.S.C. 2601(b)(1) & (2). The FMLA seeks
to accomplish these purposes "in a manner that
accommodates the legitimate interests of employers." 29
U.S.C. 2601(b)(3).
The FMLA applies to, among other entities, private-
sector employers of 50 or more employees. 29 U.S.C.
2611(4)(A)(i). An employee is "eligible" for FMLA leave
if she has worked for a covered employer for at least 1,250
hours during the preceding 12 months. 29 U.S.C.
2611(2)(A). Here, It is undisputed that Loyola is a covered
employer and Chan is an eligible employee.
An eligible employee is entitled to a total of 12 work-
weeks of leave in a 12-month period because of, among
other things, "a serious health condition" that results in the
employee's inability to perform her job requirements. 29
U.S.C. 2612(a)(1)(D). An employer may "require"
employees to substitute any accrued paid sick leave or
vacation time for any part of the 12-week leave. 29 U.S.C.
2612(d)(2). [*3] n1 At the conclusion of a qualified
leave period, the employee is entitled to reinstatement to
her former position, or to an equivalent one, with the same
terms and benefits. 29 U.S.C. 2614(a)(1). The FMLA
makes it "unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise,
any right provided under" the FMLA. 29 U.S.C.
2615(a)(1).
n1 In other words, the FMLA sets a baseline of 12 weeks
of leave. The FMLA does not require an employer to grant
12 weeks of unpaid leave on top of leave, paid or unpaid,
that the employer already provides. However, as discussed
below, the regulations place the burden on the employer to
designate leave as FMLA leave and to specify that paid
leave will be substituted for unpaid leave and will count
toward the 12 weeks of FMLA leave.
The FMLA regulations promulgated by the
Department of Labor require the employer to "provide
the employee with written notice detailing the specific
expectations and obligations of the employee and
explaining [*4] any consequences of a failure to meet
these obligations." 29 C.F.R. 825.301(b)(1). Among
other things, the written notice must specify
(i) that the leave will be counted against the employee's
annual FMLA leave entitlement (see 825.208);
* * *
(iii) the employee's right to substitute paid leave and
whether the employer will require the substitution of paid
leave, and the conditions related to any substitution.
29 C.F.R. 825.301(b)(1)(i) & (iii). Another section of
the regulations also describes the employer's obligations
for providing notice to employees under the FMLA:
(a) In all circumstances, it is the employer's responsibility
to designate leave, paid or unpaid, as FMLA-qualifying,
and to give notice of the designation to the employee. . . .
* * *
(b)(1) Once the employer has acquired knowledge that the
leave is being taken for an FMLA required reason, the
employer must promptly (within two business days absent
extenuating circumstances) notify the employee that the
paid leave is designated and will be counted as FMLA
leave. If there is a dispute between an employer and an
employee as to whether paid leave qualifies as FMLA
leave, it [*5] should be resolved through discussions
between the employee and the employer. Such discussions
and the decision must be documented.
(2) The employer's notice to the employee that the leave
has been designated as FMLA leave may be orally or in
writing. If the notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the
payday is less than one week after the oral notice, in which
case the notice must be no later than the subsequent
payday). The written notice may be in any form, including
a notation on the employee's pay stub.
29 C.F.R. 825.208(a), (b)(1)& (b)(2). "If an employee
takes paid or unpaid leave and the employer does not
designate the leave as FMLA leave, the leave taken does
not count against an employee's FMLA entitlement." 29
C.F.R. 825.700(a).
B. The Parties
Loyola operates a medical center in the Chicagoland
area. Loyola is an "employer" as defined under the FMLA.
In November 1977, Loyola hired Chan to work as a
registered pharmacist in Loyola's medical center.
C. Chan's Injury
On December 13, 1995, n2 Chan fractured one of her
legs while she was skiing in Utah. As a result of the injury,
Chan [*6] underwent surgery on her injured leg. Shortly
after Chan was injured, she notified her supervisor and
manager, Steve Dean, that she had suffered an injury and
would require surgery. Chan and Dean spoke by telephone
while Chan was still hospitalized. Dean testified in his
deposition that "we spoke when Heidi was in the hospital,
and I told her that I would give her the forms for FMLA."
[Nov. 11, 1997 Dean Dep. p. 43-44]. Dean further testified
he told Chan to "fill out the form and get them back to me.
That'll start your leave." [Id. p. 44].
n2 In Chan's 12(M) statement in support of her motion
for partial summary judgment, Chan states December 14,
1995 as the date she injured her leg. However, in her
deposition, Chan testified that the injury occurred on
December 13, 1995.
D. Loyola's Standard Packet of FMLA Material
After Chan was released from the hospital, Loyola
provided her with its standard packet of material related to
FMLA leave. The packet contained (1) a five-page
summary of the FMLA [*7] that included "Guidelines for
Employees"; (2) a "Family/Medical Leave Request for
Leave Form"; and (3) a "Family/Medical Leave Return to
Work Medical Certification Form." The five-page
summary highlighted certain provisions of the FMLA.
Among other things, the summary contained sections
entitled "Employer Coverage," "Employee Eligibility,"
"Leave Entitlement," and "Job Restoration." The "Leave
Entitlement" section included the following paragraph:
Subject to certain conditions, employees or employers may
choose to use accrued paid leave (such as sick or vacation
leave) to cover some or all of the FMLA leave. The
employer is responsible for designating if paid leave used
by an employee counts as FMLA leave, based on
information provided by the employee. In no case can an
employee's paid leave be credited as FMLA leave after the
leave has been completed.
[Loyola's 12(M), Ex. E] (emphasis in original). Further,
the "Guidelines For Employees" provided to Chan,
included the following two paragraphs:
If an employee requests a leave for non-medical reasons,
accrued vacation time and personal/bonus days may be
used for pay purposes. Any leave requested [*8] for the
employee's own illness will be paid through accrued sick
time. Vacation, personal and bonus time may is [sic]
payable once the sick bank is exhausted.
Employees on leave under the Family and Medical Leave
Act are granted up to 12 weeks of leave per calendar year.
Upon return within the 12-week time period, an employee
will be re-instated in the old position or an equivalent
position. However, if the position no longer exists due to
lay-off or restructuring, the employee is not guaranteed the
same or equivalent position.
[Loyola's 12(M), Ex. E].
Chan subsequently completed the forms included in the
packet of information and had her husband return them to
Dean. On the "Family/Medical Leave Request For Leave
Form," under the heading "Reason for Requested Leave,"
Chan checked the box that stated "serious health condition
which makes me unable to perform the functions of my
position." [Loyola's 12(M), Ex. F]. In addition, Chan
submitted a "Certification of Physician or Practitioner"
form completed by her treating physician. The form
indicated that Chan's medical condition was indefinite and
that Chan was unable to perform her work duties.
E. Approval of [*9] Chan's FMLA Leave and
General Leave
Chan later received a letter dated February 21, 1996 from
Dean indicating that Chan's "Family Medical Leave"
expired on March 6, 1996. March 6, 1996 is 12 weeks
from December 13, 1995 -- the date of Chan's skiing
accident. Chan was paid during this 12-week period.
According to her pay stubs, Chan was exhausting her
accumulated sick days and vacation days during this
period. The February 21 letter also provided Chan with
general information about extending her leave under
Loyola's general leave of absence policy. The letter further
indicated that "most positions cannot be left open. Once I
receive your request for additional leave time, I will
contact you to discuss whether or not we will be able to
hold your position." [Loyola's 12(M), Ex. H].
On February 26, 1996, Chan submitted forms for general
leave. In a letter dated March 20, 1996, Dean notified Chan
that her FMLA leave had expired March 6, 1996 but that
her general leave had been approved for the period March
7, 1996 through May 1, 1996. In the same letter Dean also
wrote the following
I must also inform you that the position you held as
Registered Pharmacist in the Department [*10] of
Pharmacy can no longer be held for you. You would be
eligible to return to a registered Pharmacist position in
Pharmacy if your leave has not expired and a position is
open when you are able to return to work. If a Pharmacist
position in Pharmacy is not available, you may apply for
any open position at Loyola for which you are qualified,
but there is no guarantee of re-employment.
[Loyola's 12(M), Ex. K]. In March or April 1996, Loyola
converted Chan's registered pharmacist position into two
pharmacist technician positions.
On April 25, 1996, Chan requested a three-month
extension of her general leave of absence. Chan stated in
her request form that "as instructed by my supervisor, this
is a requirement while I am waiting for the first available
opening in the Pharmacy Dept. after my medical leave of
absence. At the present time I am ready to return to my
former duties, but no position is available." n3 [Loyola's
12(M), Ex. L]. Dean notified Chan that her request for an
extension had been approved for an additional three
months.
n3 On April 11, 1996, Chan's treating physician indicated
that Chan could return to work as early as May 15, 1996.
[Loyola's 12(M), Ex. N].
[*11]
On July 10, 1996, Chan again requested an extension of
her general leave until November 1, 1996. Chan stated in
her request form that "I am waiting for [a] pharmacist
position to become available." [Loyola's 12(M), Ex. O]. In
a letter dated July 20, 1996, Dean approved Chan's
extension for the period August 1 to November 1, 1996. In
addition, Dean's letter informed Chan that "due to changes
occurring at Loyola and throughout the health care
industry, it is not anticipated that a pharmacist position will
become available in our Department in the foreseeable
future" and "that future requests for extensions will not be
granted. I encourage you to seek other opportunities in the
marketplace." [Loyola's 12(M), Ex. P]. On November 11,
1996, Loyola terminated Chan after her last extension of
general leave had expired.
F. Chan's Claim
Chan and Loyola do not dispute the above facts. Rather,
they disagree as to whether Loyola provided Chan with the
notice required by the FMLA. Chan contends that Loyola
did not notify Chan that her leave would count against her
annual FMLA leave as required by FMLA regulations.
Further, Chan contends that Loyola failed to notify her that
her [*12] paid sick leave and vacation time would run
concurrently with her 12-week FMLA leave. At the time of
her accident, Chan had accumulated 393.27 hours of paid
sick leave and 119.9 hours of vacation. n4 Chan contends
that had her paid sick leave and vacation time run
consecutively, instead of concurrently, Loyola would have
been required to hold a position open for her until she was
able to return to work in May 1996.
n4 Chan had accumulated roughly 10 weeks of paid sick
leave and 3 weeks of paid vacation based on a forty-hour
work week.
II. DISCUSSION
A. Summary Judgment Standard
The moving party is entitled to summary judgment as a
matter of law if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact." Fed.R.Civ.P. 56(c). The court will
construe the evidence submitted by the parties and all
inferences that can be reasonably drawn therefrom in the
light most favorable [*13] to the nonmoving party.
O'Connor v. DePaul University, 123 F.3d 665, 669 (7th
Cir. 1997). "A dispute over material facts is genuine if the
' evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'" Kennedy v. Children's
Serv. Soc'y of Wis., 17 F.3d 980, 983 (7th Cir.
1994)(citation omitted).
B. Chan's FMLA Claim
The question before the court is whether Loyola provided
Chan with the notice required by the FMLA and the
implementing regulations. As noted above, Chan's claim
raises two issues: (1) whether Loyola provided Chan with
notice that her leave was being designated as FMLA leave
and (2) whether Loyola provided Chan with notice that her
paid sick leave and vacation time would run concurrently
with her FMLA leave.
1. Did Loyola notify Chan that her leave was FMLA
leave?
As noted above, the FMLA regulations provide that "it is
the employer's responsibility to designate leave, paid or
unpaid, as FMLA-qualifying, and to give notice of the
designation to the employee." 29 C.F.R. 825.208(a). The
FMLA provides the employer with some flexibility as to
the form of notice.
(2) The employer's notice to the employee [*14] that the
leave has been designated as FMLA leave may be orally or
in writing. If the notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the
payday is less than one week after the oral notice, in which
case the notice must be no later than the subsequent
payday). The written notice may be in any form, including
a notation on the employee's pay stub.
29 C.F.R. 825.208(b)(2). Loyola contends that it
provided Chan with notice that her leave was designated as
FMLA leave through (1) Dean's telephone conversation
with Chan during her hospital stay; and (2) the packet of
material on FMLA leave.
a. Dean's conversation with Chan
Loyola contends it provided Chan with notice that her
leave was FMLA leave when Dean first spoke to Chan
while she was in the hospital. Dean testified that he told
Chan he "would give her the forms for FMLA . . . fill out
the form and get them back to me. That'll start your leave."
[Nov. 11, 1997 Dean Dep., p. 43].
Chan does not dispute Dean's testimony. However, in her
affidavit, Chan states that she recalled telling Dean that she
had suffered an injury that required surgery but that she did
not have [*15] any other "specific recollection" as to
what they discussed. She states that at the time of this
conversation with Dean, she was taking medication,
including morphine, to relieve her pain.
Chan's affidavit does not create an issue of material fact
as to whether Dean provided oral notice that Chan's leave
would be FMLA leave. In her affidavit, Chan does not
deny that Dean discussed FMLA leave with her. She
merely states that she has no "specific recollection" of the
discussion. Chan seems to be arguing that an employer
must take steps to ensure that an employee understands and
remembers the oral notification, even if the employer has
no knowledge that an employee is taking pain medication
or is otherwise incapacitated. The regulations cannot
reasonably be interpreted as placing such an onerous
burden on employers such as Loyola. n5
n5 Of course, the requirement that oral notice that leave
has been designated as FMLA leave be confirmed by
written notice of the designation provides some assurance
that an employee who does not understand or remember the
oral notice later will be provided with a clear designation.
[*16]
b. Loyola's packet of FMLA material
Assuming that Dean's discussion with Chan constituted
oral notice that her leave would be designated as FMLA
leave, the FMLA requires Loyola to confirm the
designation in writing. 29 C.F.R. 825.208(b)(2). Loyola
contends that it provided Chan with written notice when it
gave Chan the FMLA packet of material. n6 As noted
above, Loyola provided Chan with a packet of material that
included (1) a five-page summary of the FMLA that
included "Guidelines for Employees"; (2) a
"Family/Medical Leave Request for Leave Form"; and (3)
a "Family/Medical Leave Return to Work Medical
Certification Form." Chan received this written
information, completed the necessary forms, and returned
the forms to Loyola after she was released from the
hospital. Chan offers several arguments why this material
does not provide sufficient notice.
n6 Loyola also claims that the packet of material provides
adequate written notice that Chan's leave is designated as
FMLA leave even if the oral notice is somehow deficient.
Other than the timeliness issue, the discussion below as to
the adequacy of the notice provided by the packet of
material applies whether the packet is viewed as
confirmation of the oral notice or as independent written
notice.
[*17]
Chan argues that Loyola failed to provide her with the
material within the time required by the federal regulations.
The applicable regulation, 825.208(b)(2), provides that
"if the notice is oral it shall be confirmed in writing, no
later than the following payday (unless the payday is less
than one week after the oral notice, in which case the
notice must be no later than the subsequent payday)." 29
C.F.R. 825.208(b)(2). However, neither Loyola nor Chan
submits evidence that shows whether the information was
timely or untimely under the regulation. Loyola states in its
12(M) statement that "After being released from the
hospital . . . [Loyola] provided Chan with the standard
employee leave packet." [Loyola's 12(M), P 9]. Loyola
does not provide a specific date as to when Chan was
provided with the packet of materials. Chan asserts that
"Defendant has not established that written notice was
provided within [the required] time periods." [Chan's Mem.
in Opp. To Def.'s Mot. for Summ. J. at 3]. However, Chan
misunderstands the burden of proof. As the plaintiff, Chan
bears the responsibility of producing evidence
demonstrating that Loyola violated the FMLA. If there is
no [*18] evidence to support Chan's naked allegation that
the notice was untimely, then Loyola is not under any
obligation to prove that the notice was in fact timely. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d
265, 106 S. Ct. 2548 (1986).
Chan also suggests that the form of notice was
inadequate because "Chan's Chinese language skills are
better than her English language skills." [Chan's Mem. in
Opp. To Def.'s Mot. for Summ. J. at 5]. This argument may
be based on 29 C.F.R. 825.301(b)(1), which requires that
"the written notice must be provided to the employee in a
language in which the employee is literate." However,
Chan provides no evidence that she is not literate in
English. Indeed, at her deposition, Chan testified that in
December 1995 she did not have a problem reading or
understanding English. [Chan Dep. p. 70]. Moreover, Chan
has worked as a pharmacist for Loyola since 1977.