Breneisen, James P. v. Motorola Inc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2032
JAMES P. BRENEISEN, JR., et al.,
Plaintiffs-Appellants,
v.
MOTOROLA, INC., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02 C 50509—Philip G. Reinhard, Judge.
____________
ARGUED MAY 29, 2007—DECIDED JANUARY 15, 2008
____________
Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. James Breneisen, Jr., Barbara
Breneisen, Laura Jones, Anna Lineweaver, Jennifer
Horton, and Amy Boonos claim that their supervisors at
Motorola, Inc.’s Service Center in Rockford, Illinois
penalized them for taking medical leave under the
Family and Medical Leave Act (FMLA).1 They say that
they were demoted, denied raises, questioned upon return
1
We refer to the plaintiffs by the names used in their complaint
before the district court although some of the plaintiffs have
since taken new surnames. To avoid confusion, we refer to the
Breneisens by their first names.
2 No. 05-2032
from leave, and given negative performance evaluations.
To support their allegations, they offer the declarations
of twenty-three others who claim that Motorola discrimi-
nated against persons using FMLA leave. In 2002,
the plaintiffs sued Motorola and several individual defen-
dants claiming discrimination and retaliation in viola-
tion of the FMLA, as well as intentional infliction of
emotional distress (IIED). James also alleged that he was
denied his right to be reinstated to his previous position or
an equivalent one when he returned from a FMLA leave.
Motorola and the individual defendants moved for
summary judgment, and the district court granted the
motion. The court found that James could not show that he
was reassigned because he had taken leave, the other
plaintiffs had not suffered any adverse actions, and the
plaintiffs’ IIED claims were preempted by the FMLA. We
reverse the grant of summary judgment on James’s FMLA
claims because he has offered evidence to show that the
position he held before taking leave was eliminated only
because he had taken leave and that he was demoted
upon returning from leave. We also reverse the grant of
summary judgment on Lineweaver’s FMLA claims be-
cause an issue of material fact exists as to whether she
was denied a tuition reimbursement because of her use
of FMLA leave. We affirm with respect to the other plain-
tiffs’ FMLA claims because they failed to show that they
were subjected to adverse actions or that actions were
taken on account of their exercise of FMLA rights. The
grant of summary judgment on all the plaintiffs’ IIED
claims was also proper because the plaintiffs were not
subjected to extreme and outrageous conduct.
I. BACKGROUND
In this section, we recount the facts pertaining to James
Breneisen in the light most favorable to him. We detail
the remaining facts in the relevant sections of the analysis.
No. 05-2032 3
James was employed at various Motorola facilities
between 1994 and 2003. In 1999, he began working in
Motorola’s Factory Express Program (FEP) at the
Rockford facility, where he received merchandise for the
program. That November, he was given the additional
responsibility of tracking down items lost upon delivery to
Motorola. As the program grew, he was also asked to track
down outgoing packages, file claims for UPS and Federal
Express, devise shipping solutions, develop packaging
materials, and formulate process improvements for the
assembly lines. By February 2000, James had received the
title of Process Analyst to match his new responsibilities.
Beginning in June 2000, James began to report to
June Johnson, the new manager of FEP. That month,
James says Bobbi Cooper, the Director of Human Re-
sources, told him that she felt he was performing the
responsibilities of a salaried employee and that she
would explore whether he might receive a salaried posi-
tion. Before anyone determined whether James would
become a salaried employee, he left for FMLA leave on
January 15, 2001, to receive treatment for gastro-esopha-
geal reflux. He had previously taken leave at least a dozen
times without incident. But, this time, when he returned
from leave in April 2001, he was told to work on the
keypad line. This was a production line position and it
required James to lift heavy boxes and manually press
buttons on phone keypads to ensure the phones properly
functioned. Motorola claims James was given this job
because his prior position was eliminated and his
tasks distributed to other employees. Amber White, an
administrative assistant, testified that she thought
the position had not been eliminated and that she had
taken on most of James’s functions. James worked in the
keypad position for eight days before taking leave for
esophageal surgery.
4 No. 05-2032
When James returned to work on September 4, 2001, he
met with Johnson and Alan Shaw, the plant’s Senior
Operations Manager. By now, James had exhausted his
annual entitlement to FMLA leave. During this meeting,
James was informed that his former Process Analyst
position had been phased out because of business needs,
the responsibilities of that position distributed to others,
and that he would have to work in the keypad position
because there were no other available positions. James
received the title of Technician Assistant, but his pay
and benefits were not affected. Nonetheless, James
complained that he thought the move was a demotion.
White later testified that she viewed the move, although
lateral, as a demotion, and it may have looked like a
demotion to the rest of the department.
Later that month, James applied for and accepted a
Contract Coordinator position in the Contracts Depart-
ment, where he reported to Darlene Patterson, the de-
partment manager. James was satisfied with the work
he received in the Contracts Department but says
Patterson made work unpleasant by calling him into
thirty to forty-five minute meetings multiple times per
week to accuse him of creating a hostile work environment
and violating company policy. This treatment caused
James to suffer from severe stress, high blood pressure,
and stomach reflux. James worked in the Contract Co-
ordinator position until February 5, 2002, when he began
another medical leave to undergo a total esophagectomy.
Motorola terminated James’s employment on June 27,
2003.
In March 2002, the plaintiffs brought this suit in Illinois
state court against Motorola, June Johnson, Darlene
Patterson, Alan Smith, and several individual defendants
who have since been dismissed from the case. The com-
plaint alleged that the defendants violated the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq., by
discriminating and retaliating against the plaintiffs for
No. 05-2032 5
taking FMLA leave. The plaintiffs also claimed intentional
infliction of emotional distress, and James alleged that he
was denied his FMLA right to reinstatement upon return
from medical leave. The defendants removed the case to
federal court and moved for summary judgment. The
district court granted summary judgment in favor of the
defendants, finding that James failed to show that he
would have been reinstated to his former position if he
had not taken leave, none of the plaintiffs had viable
discrimination claims because they did not suffer any
adverse employment actions, and the plaintiffs’ state
law IIED claims were preempted by the FMLA.
The district court did not address the plaintiffs’ retalia-
tion claims or the authenticity of five purported emails
at the heart of the plaintiffs’ claims. Those messages, if
authentic, would show that the defendants tried to pres-
sure employees who took FMLA leave to resign, that
James was demoted because he exercised his FMLA rights,
and that the defendants wanted to use James as an
example to other employees. However, because the dis-
trict court found that none of the plaintiffs suffered
adverse employment actions, it granted the defendants’
summary judgment motion without ruling on the authen-
ticity of the emails. The plaintiffs now appeal.
II. ANALYSIS
We review a district court’s grant of summary judg-
ment de novo, drawing all inferences in favor of the
nonmoving parties. Perez v. Illinois, 488 F.3d 773, 776 (7th
Cir. 2007). Summary judgment is appropriate where
there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Krieg v. Seybold, 481 F.3d 512, 516 (7th Cir.
2007).
6 No. 05-2032
A. Summary Judgment Was Not Proper on James’s
Failure to Reinstate Claim
The FMLA not only entitles an eligible employee to
twelve workweeks of leave per year, see 29 U.S.C.
§ 2612(a)(1), but also requires that an employee be rein-
stated to his former position or an equivalent one upon
returning from leave, see id. § 2614(a)(1). The Act makes
it unlawful for an employer to interfere with these
entitlements. Id. § 2615(a)(1). James contends that the
defendants violated his rights under the FMLA by
failing to reinstate him to the position of Process Analyst
or its equivalent in April 2001. The defendants admit
that James was not restored to the Process Analyst
position, but contend the keypad position he received
was equivalent. We do not agree.
The test for equivalence is strict. Jobs are only “equiva-
lent” within the meaning of the FMLA if they entail
“equivalent employment benefits, pay, and other terms
and conditions of employment.” 29 U.S.C. § 2614(a)(1)(B).
For instance, the jobs “must involve the same or sub-
stantially similar duties and responsibilities,” 29 C.F.R.
§ 825.215(a), and James’s positions did not. Even though
James received the same pay and benefits in both posi-
tions, they differed in many respects. While the Process
Analyst job involved the administrative functions
of tracking shipments, filing claims, and developing ship-
ping solutions, the keypad position involved manual tasks,
such as lifting boxes and pressing keys on telephone
keypads. Both Johnson and Shaw acknowledged that
the jobs involved different responsibilities, and Shaw
admitted that the new position had less prestige and
visibility. James believed his new position to be a demo-
tion, and Amber White, a colleague, shared his view.
The defendants respond that James was not entitled
to be reinstated to the Process Analyst position or any
No. 05-2032 7
other because his former position was eliminated.2 The
FMLA certainly does not give employees an unconditional
right to reinstatement. “Nothing in [29 U.S.C. § 2614] shall
be construed to entitle any restored employee to . . . any
right, benefit, or position of employment other than any
right, benefit or position to which the employee would
have been entitled had the employee not taken the leave.”
29 U.S.C. § 2614(a)(3)(B). This means that if an em-
ployee’s position is eliminated while he is on FMLA leave
for reasons unrelated to the taking of leave, he has no
right to reinstatement. See 29 C.F.R. § 825.216(a); see also
Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th Cir.
2006); Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799,
804-05 (7th Cir. 2001). When an employer claims that the
employee’s position would have been eliminated even if
the employee had not taken leave and provides some
evidence to that effect, the employee must convince the
trier of fact that his position would not have been elimi-
nated had he not taken leave. Rice v. Sunrise Express, Inc.,
209 F.3d 1008, 1018 (7th Cir. 2000). James has pro-
vided sufficient evidence that his position would not
have been eliminated (or, more accurately, his duties
would not have been distributed to others) if he had not
taken leave.
Before taking leave in January 2001, James was given
increased responsibilities and was told he was being
2
The defendants contend that James conceded that the Process
Analyst position was eliminated by not properly contesting a
statement made in the defendants’ Local Rule 56.1 Statement
of Material Facts. See N.D. Ill. L.R. 56.1. The record suggests
otherwise. In a statement of facts in response to the defendants’
motion for summary judgment, see Doc. No. 121, James cited
to the place in Amber White’s deposition where she expressed
her belief that the Process Analyst position had not been
eliminated, but that she had filled it.
8 No. 05-2032
considered for a salaried position. All indications were
that he was performing vital, not dispensable, functions.
The defendants concede that during James’s absence,
many of his functions were distributed to other em-
ployees; Amber White believes that she was given the
bulk of his responsibilities. The only question, then, is
whether these changes occurred because of, or in spite of,
James’s leave. Both Johnson and Shaw give us reason to
believe these changes (i.e., the alleged elimination of the
Process Analyst position) were precipitated by James’s
use of FMLA leave. Specifically, when Johnson was
asked whether James’s job had been eliminated or was
no longer in existence, Johnson said: “It was dissolved. It
was something that had been broken up into many dif-
ferent people which is a practice of Motorola to absorb
responsibilities from when a person leaves.” Shaw con-
curred that James was probably not returned to the
Process Analyst position, because “most likely that . . . job
either didn’t exist anymore or we split the duties up
amongst other people. I mean, in our service business
it’s hard to hold positions open when we’ve got to take
care of customers every day. So we found a way of work-
ing through it.” These explanations strongly suggest
that Motorola had no business justification for eliminat-
ing James’s position apart from a need to “work[ ]
through” the fact that James had taken leave. Motorola
appears to have simply replaced James or restructured
his position to accommodate his absence. If that was the
case, James would have been entitled to reinstatement.
See 29 C.F.R. § 825.214(a) (“An employee is entitled
to . . . reinstatement even if the employee has been
replaced or his or her position has been restructured to
accommodate the employee’s absence.”). James offered
sufficient evidence to survive summary judgment on his
denial of reinstatement claim.
No. 05-2032 9
B. Summary Judgment Was Proper on All But
James’s and Lineweaver’s FMLA Discrimina-
tion and Retaliation Claims
In addition to granting employees particular substan-
tive rights, the FMLA protects employees from being
discriminated or retaliated against for exercising their
FMLA rights. See 29 U.S.C. §§ 2615(a)(2), 2615(b); 29
C.F.R. § 825.220(c); see also Kauffman v. Fed. Express
Corp., 426 F.3d 880, 884 (7th Cir. 2005). For instance, if
an employee takes FMLA leave, an employer cannot use
it as a negative factor in hiring, promotions, or dis-
ciplinary actions. 29 C.F.R. § 825.220(c). The plaintiffs
seek to prove that Motorola engaged in a campaign of
discrimination and retaliation because they used FMLA
leave. In doing so, they proceed under the direct method of
proof. To show discrimination using this method, the
plaintiffs must put forth evidence that the defendants
subjected them to adverse employment actions because
they exercised their rights under the FMLA. See Burks v.
Wis. DOT, 464 F.3d 744, 751 n.3 (7th Cir. 2006) (setting
forth direct method of proof for a Title VII racial discrimi-
nation claim).3 By contrast, the plaintiffs can make out
their charge of retaliation by offering evidence their
employers took materially adverse actions against them
because they used FMLA leave. Burnett v. LFW Inc., 472
F.3d 471, 481 (7th Cir. 2006). Materially adverse actions
are not limited to employment-related activities but
include any actions that would dissuade a reasonable
employee from exercising his rights under the FMLA. See
Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct.
2405, 2409 (2006).
3
Although Burks involved a claim of discrimination under Title
VII of the Civil Rights Act, we approach discrimination claims
under Title VII and the FMLA in the same manner. See Buie
v. Quad/Graphics, Inc., 366 F.3d 496, 504 n.3 (7th Cir. 2004).
10 No. 05-2032
The plaintiffs offered as evidence of the defendants’
discriminatory and retaliatory motive the declarations
of twenty-three persons once employed at the Rockford
facility, who believed that Motorola discriminated and
retaliated against persons who used FMLA leave. Addi-
tionally, the plaintiffs referenced an email sent by the
Director of Human Resources in September 2000, in which
she said she had heard that employees thought they
were being downgraded on performance reviews for
taking FMLA leave. The plaintiffs also presented sev-
eral pages alleged to be email correspondence between
June Johnson, Al Shaw, and Darlene Patterson, which
outlined a scheme to retaliate against those who used
FMLA leave and named the plaintiffs as scheme targets.
The authenticity of these documents was heavily dis-
puted, but the district court did not rule on that ques-
tion because it found that none of the plaintiffs had
suffered an adverse employment action. The district court
did not consider whether any of the plaintiffs had been
subjected to a materially adverse action as required for
retaliation claims. Even so, we find that only James and
Lineweaver have potentially viable discrimination or
retaliation claims.
1. James’s Discrimination and Retaliation Claims
James claims the defendants transferred him to the
keypad position to penalize him for taking FMLA leave.
Although he received the same pay and benefits in his
new position, a dispute exists as to whether the transfer
amounted to a demotion or reduced James’s oppor-
tunities for promotion. If the transfer was a demotion or
resulted in fewer promotional opportunities, it would
qualify as an adverse employment action and a materially
adverse action. See Goodwin v. Bd. of Trs. of the Univ. of
Ill., 442 F.3d 611, 619 (7th Cir. 2006); Herrnreiter v. Chi.
No. 05-2032 11
Housing Authority, 315 F.3d 742, 744 (7th Cir. 2002).
Further, the purported emails, if authentic, would be
evidence of the defendants’ discriminatory and retaliatory
animus. James offered sufficient evidence to survive
summary judgment on his discrimination and retaliation
claims. On remand, the district court should determine
whether the alleged emails are authentic. See Fed. R.
Evid. 901; United States v. Harvey, 117 F.3d 1044, 1049
(7th Cir. 1997).
2. Anna Lineweaver’s Discrimination and Re-
taliation Claims
Lineweaver was a Motorola employee from February
2000 until her resignation in December 2001. While
at Motorola, she performed data entry and worked as
a customer service assistant. On several occasions,
Lineweaver took FMLA leave because of depression.
She says that June Johnson told her that her request
for a tuition reimbursement was denied because she had
taken FMLA leave. Believing what Johnson told her,
Lineweaver did not submit a tuition reimbursement
request. Although Johnson says she had no role in grant-
ing or denying tuition reimbursements, she does not
deny telling Lineweaver that her request for reimburse-
ment had been denied because of her use of FMLA leave.
Even if Johnson actually had no authority over reim-
bursements, it was not unreasonable for Lineweaver to
believe that Johnson had some role in the process or that
Johnson was conveying accurate information about the
decision. So we do not fault Lineweaver for failing to
submit a tuition reimbursement request. She had reason
to think that a futile act. See Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 365-66 (1977) (“When a
person’s desire for a job is not translated into a formal
application solely because of his unwillingness to engage
12 No. 05-2032
in a futile gesture he is as much a victim of discrimination
as is he who goes through the motions of submitting an ap-
plication.”); Pime v. Loyola Univ. of Chicago, 803 F.2d
351, 353 n.1 (7th Cir. 1986) (“One does not have to apply
for a job when it is obvious that it would be a futile act.”).
The only question, then, is whether the denial of a
tuition reimbursement constituted an adverse employ-
ment action or a materially adverse action. The district
court assumed that tuition reimbursements were purely
discretionary. See Tyler v. Ispat Inland Inc., 245 F.3d
969, 972 (7th Cir. 2001) (“[T]he denial of a monetary
perk, such as a bonus or reimbursement of certain ex-
penses, does not constitute an adverse employment
action if it is wholly within the employer’s discretion to
grant or deny and is not a component of the employee’s
salary.”). But Motorola provided no evidence to that
effect, and the minimal evidence on this record suggests
that there was no legitimate reason to deny Lineweaver
a tuition reimbursement had she requested it. She had
been approved to take classes, so, up until Johnson
informed her that she could not get a tuition reimburse-
ment because of her FMLA leave, she had every reason
to expect to be reimbursed. Further, Bobbi Cooper, the
Human Resources Director, testified that to receive a
tuition reimbursement one had to be on active payroll
and could not have a “some improvement needed” rating.
Lineweaver appears to have met both of those criteria,
and, although Cooper indicated there might be addi-
tional requirements, she did not elaborate on those. On
this record, we have no reason to think that tuition
reimbursement was not an entitlement, and without
some information as to the amount of money involved,
we cannot conclude that the denial of reimbursement
was not an adverse employment action or materially
adverse action. See Torrington Extend-A-Care Employee
Ass’n v. NLRB, 17 F.3d 580, 591 (2d Cir. 1994) (treating
No. 05-2032 13
the denial of a tuition reimbursement as an adverse
employment action); cf. Fyfe v. City of Fort Wayne, 241
F.3d 597, 602 (7th Cir. 2001) (holding that the denial of
a reimbursement of $156.89 was not a materially adverse
employment action). Lineweaver’s allegation that she
was denied reimbursement because of her FMLA leave
finds additional support in the emails of uncertain authen-
ticity. The district court erred in granting Motorola’s
request for summary judgment on Lineweaver’s discrimi-
nation and retaliation claims.
3. Barbara’s Discrimination and Retaliation
Claims
Barbara, James’s wife, worked for Motorola during the
late 1990’s and became a Motorola employee again in
April 2001. Shortly after returning to Motorola, Barbara
began working the weekend shift in the Rockford facility’s
Factory Express Program. At that time she reported to
Don Smith, who fell under June Johnson’s supervision.
Between 2001 and 2002, Barbara took FMLA leave on
several occasions when she or her husband was ill. On
appeal, Barbara says Motorola took several actions
against her because of her and her husband’s use of
FMLA leave. She claims that when she returned from
leave, Smith would call her into his office to say that
other employees had problems with her. For instance, he
would say that employees complained that she was “on
edge.” But Barbara acknowledged in her deposition that
migraine headaches had put her “on edge” and that
Smith would tell her that the complaints were no big
deal. She testified that Smith would comment that if
he had a full staff, he could get some work done, but we
do not think such comments are alone sufficient to dis-
suade a reasonable person from taking FMLA leave. See
White, 126 S. Ct. at 2409. Finally, Barbara accuses Smith
14 No. 05-2032
of marking days taken off for FMLA leave unexcused.4
However, in initially marking her absences unexcused
Smith was merely following Motorola’s policy. Generally
an employee notifies her supervisor and the nurse upon
taking FMLA leave. It is the nurse’s obligation to deter-
mine whether the employee’s leave falls under the FMLA.
After making that determination, she notifies the em-
ployee’s supervisor that the leave was or was not qualify-
ing. Before receiving this notice, the supervisor is to
record the absence as unexcused. In fact, a supervisor
is only authorized to convert an absence from unexcused
to excused upon receiving the nurse’s notification.
Barbara admits that her absences were eventually
marked excused and that she was never disciplined for
having temporary unexcused absences. So Barbara has
failed to offer evidence that Smith marked her absences
unexcused as a penalty for her use of FMLA leave. Sum-
mary judgment was proper on her discrimination and
retaliation claims.
4
Barbara also contends that one of the contested emails re-
veals that Johnson had tried to pressure her to quit. She cites
the declarations of two co-workers who attested that Johnson
had taken a range of actions against various employees, like
Barbara, who took FMLA leave. Most of these actions are best
characterized as “petty slights, minor annoyances, and simple
lack of good manners” that do not rise to the level of materially
adverse actions. White, 126 S. Ct. at 2415. The declarations
only accuse Johnson of two significant behaviors—verbally
berating persons who took FMLA leave and routinely finding
fault with their work. Notably, in her deposition, Barbara never
accused Johnson of berating her or criticizing her work. So we
do not consider those actions in evaluating Barbara’s claims.
No. 05-2032 15
4. Laura Jones’s Discrimination and Retaliation
Claims
Jones became an employee at Motorola’s Rockford plant
in February 2001. After transferring to the weekend
shift, she reported to Don Smith and held a variety of
positions. Jones took FMLA leave on several occasions
because of her depression. She says that upon returning
to work, Smith would call her into his office and ask
why she was taking leave, say that she could have proba-
bly come to work on days she was absent, tell her that
missing work was hurting the team, and state that
although he could not downgrade her for taking FMLA
leave that it was hard to give her a favorable rating
when she was never at work. These “minor annoyances”
are not materially adverse actions. White, 126 S. Ct. at
2415. Jones also says that Smith gave her an unfavorable
“some improvement needed” performance rating in re-
sponse to her use of FMLA leave. Smith claims the unfa-
vorable evaluation was based on Jones’s unexcused
absences, and Jones admits that she had four hours of
unexcused absence during the interval preceding her
review and that she had been warned earlier in the
year for several unexcused absences. Jones has failed
to show that she deserved a higher rating. See Sublett v.
John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006).
Moreover, after Jones complained, her evaluation was
changed to “meets expectations,” and neither her salary
nor benefits were impacted by initial lower rating. Jones
also cites the contested emails and co-worker declara-
tions as evidence that Johnson harbored a discrimin-
atory and retaliatory intent and took adverse action
against her. But most of the alleged actions are too
trivial to be actionable. Although the declarations cited two
more egregious acts—i.e., that Johnson would call em-
ployees who took FMLA leave into her office for
lengthy periods and would routinely find fault with
16 No. 05-2032
their work—Jones never accused Johnson (whose work
schedule overlapped with Jones’s just one day a week) of
such conduct. Summary judgment was proper on Jones’s
FMLA claims.
5. Jennifer Horton’s Discrimination and Retalia-
tion Claims
Horton was employed at Motorola between January 2000
and March 2002. During that time, Horton took FMLA
leave on several occasions. In support of her FMLA claims,
Horton says that Johnson and Smith made her feel that
her work quality and productivity were not good. She also
claims that Johnson told her during a performance
review meeting in 2001 that if she could resolve her
medical problems and improve her attendance, she would
be able to advance and receive better pay. However,
Horton indicated on a personal commitment form com-
pleted in 2001 that her attendance needed improvement
and testified that she had non-FMLA absences that year.
The district court did not err in granting summary judg-
ment on her FMLA claims.
6. Amy Boonos’s Discrimination and Retaliation
Claims
Amy Boonos became a Motorola employee in December
1997. Two years later, she transferred to the Rockford
facility to work as a parts coordinator. She remained in
that capacity until leaving Motorola in March of 2002.
Boonos took FMLA leave while at Rockford for a shoulder
injury and stress-related illnesses. She claims that her
supervisor, Mark Larson, gave her a lower raise on one
occasion because she had missed work, but she admits
that she had missed work for reasons other than her
taking of FMLA leave. Additionally, she acknowledges
No. 05-2032 17
that Larson had commented that her performance did not
meet his expectations. Boonos cannot show that she
deserved a higher raise. See Sublett, 463 F.3d at 740.
Boonos also says that Larson once introduced her by
saying: “This is Amy, you probably haven’t met her yet
because she is never here.” While she may have found the
comment offensive, this “petty slight[ ]” does not amount
to a materially adverse action. White, 126 S. Ct. at 2414.
The grant of summary judgment was proper on Boonos’s
FMLA claims.
C. Summary Judgment Was Proper on the Plain-
tiffs’ Emotional Distress Claims
The plaintiffs argue at length that their state law
intentional infliction of emotional distress claims are not
preempted. However, even if we were to agree, their
claims would fail for lack of merit.
Under Illinois law, three conditions must exist to state
a cause of action for intentional infliction of emotional
distress. First, the conduct involved must be extreme
and outrageous. Second, the actor must intend that his
conduct cause severe emotional distress or be aware of
a high probability of causing severe emotional distress.
Third, the conduct must actually cause severe emotional
distress. Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill.
2003). “[T]o qualify as outrageous, the nature of the
defendant’s conduct must be so extreme as to go beyond
all possible bounds of decency and be regarded as in-
tolerable in a civilized community.” Id. at 83. “[T]he tort
does not extend to ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’ ”
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988) (quoting
Restatement (Second) of Torts § 46, comment d, at 73
(1965)). None of the conduct complained of by the plain-
tiffs, which includes being demoted, questioned or criti-
18 No. 05-2032
cized upon return from FMLA leave, passed over for
raises or given reduced raises, denied tuition reimburse-
ments, or given unexcused absences meet this demanding
standard. See Bannon v. Univ. of Chicago, No. 06-2955,
2007 U.S. App. LEXIS 22986, *17 (7th Cir. Oct. 1, 2007)
(citing Graham v. Commonwealth Edison Co., 742
N.E.2d 858, 867-68 (Ill. App. Ct. 2000)). Summary judg-
ment was proper on the plaintiffs’ IIED claims.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment on James’s and
Lineweaver’s FMLA claims. We AFFIRM the grant of
summary judgment on the plaintiffs’ remaining claims
and REMAND for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-15-08