Ridings, Janet M. v. Riverside Medical ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4328
JANET M. R IDINGS,
Plaintiff-Appellant,
v.
R IVERSIDE M EDICAL C ENTER,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 C 2134—Michael P. McCuskey, Chief Judge.
____________
A RGUED JANUARY 9, 2008—D ECIDED A UGUST 11, 2008
____________
Before W OOD , S YKES, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Janet Ridings brought this action
alleging that her former employer, Riverside Medical
Center, interfered with her rights and retaliated against her
in violation of the Family and Medical Leave Act
(“FMLA”) and retaliated against her in violation of the
Illinois Workers’ Compensation Act. The district court
granted Riverside’s motion for summary judgment on all
claims. We affirm the district court’s decision.
2 No. 06-4328
I. Background
The following facts are construed in the light most
favorable to Ridings, the non-moving party. South v. Ill.
Envtl. Prot. Agency, 495 F.3d 747, 751 (7th Cir. 2007).
Ridings was an employee of Riverside Medical Center from
October 1998 until May 13, 2004. As a Knowledge Manager,
Ridings’s work primarily required her to respond to
requests from Riverside employees for Ridings to extract
data from Riverside’s computer databases through query
reports. Riverside classified Ridings as a full-time exempt
employee. Riverside required full-time exempt employees
to “swipe in” to the time-keeping system every day, but the
employees’ hours were not tracked.
In December 2002, Ridings was diagnosed with Graves’
disease, which is a disorder of the thyroid. In January 2003,
Ridings’s doctor advised her to have her thyroid removed.
Ridings applied for a leave of absence from Riverside
pursuant to the FMLA. Ridings completed an FMLA leave
application form and submitted a medical certification
form to her doctor, as required by Riverside. Riverside
granted the FMLA leave for two weeks and later permitted
Ridings to extend the leave for one additional week after
her surgery. Ridings returned to work after her surgery on
February 3, 2003, and she worked from about 8:00 a.m.
until 12:00 p.m. for a few weeks. Thereafter, she gradually
increased her hours at work until she was working nearly
a full day. On two occasions in 2003, Ridings nearly fell
asleep while driving home; thereafter, she did not work
past 4:30 p.m. unless she had a ride home.
In June 2003, Ridings received an annual evaluation of
her work from her supervisor, Kyle Hansen. Ridings
No. 06-4328 3
received an overall rating of “Key Contributor” which is
one step below the highest possible ranking of “Role
Model.” Many employees at Riverside were ranked as
“Key Contributors,” including Hansen and his supervisor
Jeff Pollack.
In July 2003, Ridings submitted a claim under the Illinois
Workers’ Compensation Act, asserting that she had
developed Graves’ Disease due to workplace stress.1 Also
in July 2003, Ridings began working on a large project
relating to Riverside’s payroll system, which she com-
pleted in January 2004. Due to the removal of her thyroid,
Ridings was required to take medication replacing the
hormones that are normally produced by the thyroid, and
that medication was adjusted by her doctor at certain
intervals throughout the year. Ridings continued to work
on the premises of Riverside less than eight hours per day
for the remainder of the year because she frequently
became fatigued by the end of the day. Ridings regularly
took work home in the evenings and on weekends.
On January 25, 2004, Hansen discussed Ridings’s work
schedule with her, and he expressed that she needed to
begin working a full eight-hour day on the premises. On
February 25, 2004, Hansen again met with Ridings to
request that she work a full eight-hour day. Ridings did not
1
Although the cause of Graves’ disease is unknown, stress is
believed to be a factor that increases a person’s likelihood of
developing the disease. See Graves’ Disease: Causes,
http://www.mayoclinic.com/health/graves-disease/DS00181/
DSECTION=3 (last visited July 18, 2008).
4 No. 06-4328
adjust her work schedule after either meeting. On March
11, 2004, Hansen drafted a “corrective action report”
(“CAR”) regarding Ridings’s work schedule and sent it to
Becky Hinrichs, Riverside’s Director of Human Resources,
for her to review. The document was forwarded to Brent
Mallek, Riverside’s Vice President for Human Resources.
Mallek recommended that Hansen remove the CAR’s
references to Ridings’s need to provide medical documen-
tation.
Hansen took Mallek’s advice and gave Ridings the
modified CAR on March 22, 2004. The CAR stated that
Ridings’s attendance was unsatisfactory because she had
not been working a full eight-hour day. The report also
stated that Ridings must begin working a full eight-hour
day immediately and advised her that the next action
taken, if she did not comply, would be to place a warning
in her personnel file. Ridings signed the CAR, as required
by the disciplinary process, but noted that she had asked
what sort of medical documentation she should supply but
her question had not been answered.
Ridings provided a note from her doctor on the same
day, March 22, 2004, which stated that she could not work
an eight-hour day because of a medical condition until
further notice. On April 1, 2004, Hansen met with Ridings
and informed her that based on her doctor’s note, she
needed to provide Riverside with FMLA paperwork. He
gave Ridings an FMLA leave application to complete and
an FMLA medical certification form for her physician to
complete. On April 16, 2004, Hansen asked Ridings about
the FMLA forms. She presented Hansen with her attor-
No. 06-4328 5
ney’s business card and stated that her attorney needed to
handle the matter.
On April 21, 2004, Hansen provided Ridings with
another CAR. The CAR stated that Ridings had failed to
adhere to policy because she “[d]id not complete FMLA
paperwork as requested in 15 day period.” The CAR stated
that the “expected improvement” for Ridings would
require that “FMLA paperwork requesting intermittent
leave . . . be completed by her physician and presented
back to her supervisor by April 28, 2004.” The CAR stated
that the next action taken if the FMLA forms were not
completed would be to place Ridings on suspension for
three days without pay. If she returned to work after the
suspension without presenting the FMLA paperwork to
Hansen, then she could be terminated. Ridings signed the
CAR, objecting to the disciplinary process.
On May 10, 2004, Hansen provided a third CAR to
Ridings. At that time, Ridings was suspended for three
days without pay because she “did not turn in FMLA
paperwork requesting intermittent leave by April 28,
2004.” 2 The CAR identified the next action that would be
taken: “Upon returning to work after the suspension, if the
FMLA paperwork is not presented then further action, up
to and including termination may be taken.” Ridings
signed the CAR, again objecting to the disciplinary process.
2
Ridings’s complaint also alleged that her suspension without
pay violated the Fair Labor Standards Act (“FLSA”). The district
court found that Ridings’s FLSA claim failed, and she does not
appeal this determination.
6 No. 06-4328
On May 13, 2004, Ridings returned to work after her
suspension without the completed FMLA paperwork, and
Riverside terminated her employment.
II. Analysis
We review a district court’s grant of summary judgment
de novo. South, 495 F.3d at 751. We view all facts and the
reasonable inferences drawn therefrom in the light most
favorable to the non-moving party. Id. Summary judgment
is proper only where “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 and that the moving party is entitled to a
judgment as a matter of law.” Id. (citing Fed. R. Civ. P.
56(c)).
A. FMLA Interference
The FMLA entitles an eligible employee up to twelve
work weeks of leave during a twelve-month period where
the employee has a serious health condition that renders
her unable to perform the functions of her position. 29
U.S.C. § 2612(a). The FMLA also permits the employee to
take leave intermittently or on a reduced schedule when
medically necessary. Id. § 2612(b). Under the FMLA, it is
unlawful for an employer to interfere with an employee’s
attempt to exercise the rights established by the FMLA. Id.
§ 2615(a). An employee does not need to be aware of her
rights in order to invoke them; “[t]he employee need not
expressly assert rights under the FMLA or even mention
No. 06-4328 7
the FMLA, but may only state that leave is needed.” 29
C.F.R. § 825.303(b).
To prevail on an FMLA interference claim, an employee
must show that her employer deprived her of an FMLA
entitlement. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.
2006). The employee must establish that: (1) she was
eligible for the FMLA’s protections; (2) her employer was
covered by the FMLA; (3) she was entitled to leave under
the FMLA; (4) she provided sufficient notice of her intent
to take leave; and (5) her employer denied her FMLA
benefits to which she was entitled. Id.We address each of the parties’ arguments: that the
district court failed to acknowledge Riverside’s factual
admission, that Ridings failed to invoke her FMLA rights,
that Riverside failed to responsively answer her questions
about FMLA certification, that Riverside was attempting to
force Ridings to take intermittent leave, that Riverside
never requested medical certification from Ridings, that
Riverside did not give Ridings the opportunity to cure any
deficient certification, that Riverside’s discipline and
termination of Ridings was unauthorized, and that Ridings
was working a full schedule based on Riverside’s policies.
The parties do not dispute that Riverside is an employer
covered by the FMLA or that Ridings was an eligible
employee. Ridings initially alleged in her complaint that
she did not have a serious health condition; however, in
her appellate brief, she stated that the district court prop-
erly determined that she did have a serious health condi-
tion. Although Riverside noted that Ridings had originally
claimed not to have a serious health condition, it did not
8 No. 06-4328
otherwise dispute that her illness should be treated as a
serious health condition.
Ridings contends that the district court erred when it
granted summary judgment in favor of Riverside because
the court failed to consider evidence in her favor and
ignored factual admissions by Riverside. Many of Ridings’s
arguments rely upon an admission made in Plaintiff’s
Interrogatory Number 6. The interrogatory requested:
“State all dates on which plaintiff was on leave, of any
kind, from her employment by Riverside between January
1, 2002 and May 13, 2004 and, for such leave, state how it
was categorized by Riverside (sick leave, vacation, FMLA,
etc.).” Riverside’s answer stated that Ridings “was on a
reduced leave schedule under the FMLA from February 3,
2003 to May 13, 2004.” Before the close of discovery,
Riverside amended its response to Interrogatory Number
6 and stated:
Plaintiff did not work her scheduled hours from
February 3, 2003 to May 13, 2004. Technically, this
period was FMLA leave, see Ragsdale v. Wolverine World
Wide, Inc., [535] U.S. 81 (2002), although her reduced
hours were never designated FMLA leave by Riverside.
On April 24, 2004, Riverside requested medical certifi-
cation from Plaintiff to determine her status and
whether her reduced hours schedule should be desig-
nated FMLA leave. Due to Plaintiff’s refusal to produce
certification, no determination was ever made as to her
status.
The district court did not refer to either interrogatory
answer in its written opinion. Oddly, Riverside did not
No. 06-4328 9
mention on appeal that the interrogatory answer had been
amended, despite Ridings’s frequent reliance upon the
original answer to the interrogatory. Riverside again
explained its original interrogatory answer with the
contention that, under Ragsdale, Ridings’s leave was
considered FMLA leave “by operation of law” despite
Riverside’s failure to designate it as such.
FMLA regulations require that an employer designate
leave as FMLA-qualifying and give notice of the designa-
tion to the employee. 29 C.F.R. § 825.208. In Ragsdale, the
Supreme Court invalidated a regulation that required an
employer to provide an employee with twelve additional
weeks of leave if the employer had failed to designate leave
taken by the employee as FMLA-qualifying. Ragsdale, 535
U.S. at 96. The Court reasoned that the regulation
“alter[ed] the FMLA’s cause of action in a fundamental
way” because it “relieve[d] employees of the burden of
proving any real impairment of their rights and resulting
prejudice.” Id. at 90. Riverside’s explanation that Ridings’s
leave was FMLA leave “by operation of law” overstates
Ragsdale’s holding; regardless, Ridings does not contend
that she was prejudiced by Riverside’s failure to designate
leave as FMLA-qualifying. Indeed, she benefitted from a
reduced schedule leave for more than a year before River-
side signified to Ridings that she would need to demon-
strate FMLA entitlement in order to continue working a
reduced schedule on the premises.
Riverside contends that Ridings’s FMLA interference
claim fails because Ridings never invoked her FMLA
rights. Of course, “[a]n employee need not expressly
10 No. 06-4328
mention the FMLA . . . or otherwise invoke any of its
provisions” when requesting leave. Burnett, 472 F.3d at 478.
Riverside analogizes Ridings’s FMLA request to the
employee’s request for leave in Bailey v. Southwest Gas Co.,
275 F.3d 1181 (9th Cir. 2002). In Bailey, the employee
presented to her employer a note from her doctor stating
that she could not work overtime because of a prescribed
medication that had the side effect of sedation. The em-
ployer responded by seeking additional information from
the employee about her condition, and it informed her that
she might be entitled to leave under the FMLA. The
employee then clarified that she was not actually sick or
disabled; she simply objected to working the amount of
overtime required because she felt it was unsafe. The
employee failed to provide her employer with a certifica-
tion form containing sufficient information to determine
whether the FMLA was applicable to her, and the em-
ployer subsequently terminated her. In evaluating the
employee’s claim for FMLA interference, the court noted
that the employee had “concede[d] that she did not have a
qualifying health condition, that she never requested
FMLA leave, and that she would not have taken FMLA
leave had it been offered.” Id. at 1186. The court concluded
that because the employee “never sought to invoke her
FMLA rights, she may not now argue that [her employer]
interfered with the exercise of her rights by suggesting the
FMLA might apply, providing her with information on it,
and seeking a medical certification of her condition.” Id.Bailey is similar to this case in many respects. Riverside
presented evidence that Ridings conceded that she had not
requested leave and did not actually want to take FMLA
No. 06-4328 11
leave. As Ridings points out, in Bailey, the employee told
her employer that she was not sick, and the employer was
not aware of the employee’s medical history because she
had not previously taken time off from work. Ridings did
have a serious medical condition; she testified in her
deposition that Hansen asked for periodic updates and that
she kept him apprised of her condition. Riverside permit-
ted Ridings to work a reduced schedule for more than a
year because of its understanding of her medical condition.
Viewing the evidence in favor of Ridings, we cannot
conclude that Ridings failed to “invoke” her FMLA rights.
Ridings has presented evidence that in March 2004
Riverside initially attempted to avoid discussing Ridings’s
FMLA rights with her and was unresponsive to her
requests for more information. Riverside’s interaction with
Ridings at the beginning of the disciplinary process
concerns us. The FMLA regulations require employers to
“responsively answer questions from employees concern-
ing their rights and responsibilities under the FMLA.” 29
C.F.R. § 825.301(d).
The first draft CAR, as originally written, stated that
Ridings’s attendance was unsatisfactory:
Janet has been arriving at work between 8a and 8:30a,
leaving for lunch, returning, and leaving for the day
between 2:30p and 3:00p. Last year after surgery, this
was allowed as she was adjusting medicine that made
her extremely tired in the afternoon. No medical
documentation was received at that time, and after
almost a year, was recently requested, but has not been
delivered.
12 No. 06-4328
The CAR stated in the “expected improvement” section of
the form that
[u]nless medical documentation is received, working a
full 8 hour day must begin immediately, whether it is
from 8-5 or 8:30a-5:30p, etc. depending on Janet’s
schedule. Upon receipt of a doctor’s order, further
discussion will need to be held in regards to current
and future task responsibilities for this position, and
Janet’s ability to carry them out.
At the drafting stage of this document, Mallek suggested
that Hansen remove all references to Ridings’s need to
provide medical documentation. Mallek wrote: “Simply
state that attendance is expected and the duties of her job
require 8 hours per day of work. If and when she produces
documentation to support a need to accommodate her we
will have to evaluate it at that time.”
Therefore, the first CAR given to Ridings failed to inform
her that she might be entitled to leave under the FMLA.
Instead, the CAR simply stated that her attendance was
unsatisfactory because she had been arriving between 8:00
and 8:30 a.m. and leaving between 2:30 and 3:00 p.m. The
form advised her that she would receive a warning in her
personnel file if she did not begin working a full eight-hour
day immediately. Ridings apparently understood at the
time of the first CAR that Riverside needed documentation
of her medical condition because she noted on the CAR
that she “requested clarification on what was needed from
my physician. That information was not provided.”
Hansen wrote in an email to Becky Hinrichs after he had
given Ridings the CAR: “[Ridings] was wanting me to put
No. 06-4328 13
something in writing requesting actually what I wanted
from the doctor. Brent [Mallek] indicated that I do not need
to request anything, but that she work an 8 hour day.” We
recognize that the situation was unusual, in that Ridings
had been working a reduced schedule for approximately
one year before Riverside began to voice concern about her
hours. Nevertheless, Riverside should have “responsively
answer[ed] questions” rather than fostering a climate of
secrecy regarding its expectations of Ridings. 29 C.F.R.
§ 825.301(d).
Despite Riverside’s failure to answer Ridings’s request
for more information, we do not believe this constitutes
interference. Although she noted that Riverside did not
answer her questions, Ridings did not allege that River-
side’s initial failure to provide her with FMLA information
prejudiced her. See Ragsdale, 535 U.S. at 90-91 (holding that
an employee must demonstrate that an interference with
FMLA rights was prejudicial to her). As we will discuss in
greater detail, Riverside provided Ridings with the FMLA
forms she needed after the first CAR, and it gave her ample
opportunity to fulfill its request for additional information
from her physician.
Riverside contends that summary judgment in its favor
was proper because it complied with the FMLA. It argues
that it was entitled to ask Ridings for medical certification
of the reason for her leave, and Ridings failed to respond
to that request. Ridings asserts that Riverside never asked
her for medical certification.
The FMLA permits an employer to require that a request
for leave due to a serious health condition be supported by
14 No. 06-4328
certification issued by the health care provider of the
employee. 29 U.S.C. § 2613(a). It is undisputed that the
only medical information that Ridings supplied to River-
side in writing from her physician, other than the FMLA
forms for her initial surgery, was the note stating that
“[patient] cannot work 8 [hour] day [illegible] medical
condition until further notice.” Ridings objects to River-
side’s repeated contentions that it had requested medical
certification from Ridings. Ridings’s assertions to the
contrary focus on the language used in the CARs, empha-
sizing that Riverside asked Ridings to apply for “intermit-
tent” FMLA leave rather than asking for medical certifica-
tion. However, the evidence shows that Riverside gave
Ridings two FMLA forms: a “request for leave of absence”
and a “medical certification for leave of absence.”
First, we address Ridings’s concern that Riverside was
attempting to require her to take “intermittent leave”
rather than asking for certification. Ridings’s primary
contention of Riverside’s interference with her FMLA
entitlement is that, per Riverside’s admission in Interroga-
tory Number 6, she was already taking reduced schedule
FMLA leave when Riverside began unlawfully attempting
to force her to apply for intermittent leave. Her refusal to
comply with Riverside’s request led Riverside to discipline
and terminate her in violation of the FMLA.
Riverside contends that Ridings should not be permitted
to rely on this allegation. Ridings’s initial complaint alerted
Riverside that Ridings was claiming FMLA interference,
albeit under a different theory, based upon Riverside’s
discipline of Ridings during March, April, and May 2004.
No. 06-4328 15
During discovery, Ridings learned that Riverside had used
the term “intermittent leave,” and filed a motion for leave
to amend the complaint to add FMLA interference under
that theory. The district court denied the motion but still
addressed the theory in its opinion because Ridings relied
upon it in her summary judgment brief. The district court
appropriately considered the theory because “[h]aving
specified the wrong done to [her], a plaintiff may substitute
one legal theory for another without altering the com-
plaint.” Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th
Cir. 1997). Ridings advances this theory again on appeal,
and we will consider it.
We note that there is no dispute that the second, third,
and final CAR referred to Ridings’s need to submit FMLA
forms for “intermittent leave.” The FMLA defines intermit-
tent leave as “leave taken in separate blocks of time due to
a single qualifying reason.” 29 C.F.R. § 825.203(a). Reduced
schedule leave is defined as “a leave schedule that reduces
an employee’s usual number of working hours per work-
week, or hours per workday. A reduced leave schedule is
a change in the employee’s schedule for a period of time,
normally from full-time to part-time.” Id. It is apparent that
the most appropriate type of FMLA leave for Ridings to
have taken was, in fact, reduced schedule leave because
she was leaving early nearly every day.
The FMLA imposes some requirements upon the em-
ployer and the employee that are generally applicable to all
types of leave. See, e.g., 29 U.S.C. § 2614 (employment and
benefits protection); 29 C.F.R. § 825.301 (employer’s notice
obligations). The FMLA also imposes requirements that are
16 No. 06-4328
specific to intermittent and reduced schedule leave. See,
e.g., 29 U.S.C. §§ 2613(b)(5)-(7) (certification requirements
for intermittent and reduced schedule leave). Although
ultimately the schedule of the employee would be different
depending on whether the employee was taking intermit-
tent or reduced schedule leave, we conclude that the
requirements under the FMLA statute and regulations that
were implicated by the facts of this case were identical
regardless of which type of leave was being taken. Any
relevant provision addressing intermittent or reduced
schedule leave imposed the same obligations on the
employer and employee without regard to the type of
leaving being taken.
Turning to Riverside’s requirements for FMLA leave, we
note that Riverside had a written policy for FMLA leave.
Under the policy section entitled “Notice of Leave,”
Riverside explained the employee’s legal obligations to
give Riverside notice of medical leave. Riverside identified
that it had a particular form to use when requesting a leave
of absence. Under the policy section entitled “Medical
Certification,” Riverside explained that medical certifica-
tion is required for leave resulting from a serious medical
condition. Riverside identified that it also had a particular
form to use for medical certification.
Neither form was tailored to a particular type of leave.
The “application for leave” form required an employee to
list her name, department, social security number, and the
date. The next section of the form required the employee to
check the box corresponding to the type of leave being
requested. The first box was labeled “Regular Leave (More
No. 06-4328 17
than 3 consecutive calendar days).” The second box was
labeled “Intermittent Leave or Reduced Schedule Leave.”
The following section of the form required the employee to
check the box corresponding to the purpose of the leave.
The employee had six options: employee medical condi-
tion, family member medical condition, adoption/foster
care, extension of leave, personal, or other. The employee
then needed to identify the dates of the requested leave
and the name of her healthcare provider. Finally there were
four fill-in-the-blank questions: “Frequency of Intermittent
Leave,” “Requested Schedule Change of Reduced Schedule
Leave,” “Is this an Extension of Previously Approved
Leave?” and “How Long is the Extended Leave Needed?”
The employee was required to sign the bottom of the form.
The “request for medical certification” form required the
employee to describe the illness or injury and the date of its
occurrence and sign the form. The employee’s physician
would fill out the rest of the form, which asked pertinent
questions to assist Riverside in determining whether the
employee was entitled to FMLA leave due to the illness
or injury.
We conclude that Ridings’s obligations under Riverside’s
policies were also essentially identical regardless of which
type of leave she was taking. She would have filled out the
same forms, checked the same boxes, and had the same
obligations to provide medical certification. The only
difference would have been Ridings’s need to answer one
alternate fill-in-the-blank question on Riverside’s applica-
tion form.
We acknowledge that the CARs are clear that Ridings
was directed to apply for “intermittent leave.” However,
18 No. 06-4328
we cannot conclude from the evidence presented that the
term “intermittent” was used, as Ridings contends, in an
attempt to force her to cease taking a reduced schedule
leave and apply anew for intermittent leave. The applica-
tion form was used for all types of leave, including exten-
sions of leave. The deposition testimony of Hansen,
Hinrichs, and Pollack indicated that each one expected
Ridings to either complete the FMLA paperwork or begin
working a full schedule. Hansen, who drafted the CARs,
testified that he believed intermittent and reduced sched-
ule leave were “one and the same.” No evidence was
presented from which we could reasonably infer that
Riverside meant for Ridings to apply for a type of leave
that required her to start working a full workweek on a
regular basis while permitting her to miss the occasional
full day.
We do not wish to trivialize Riverside’s mistake, because
it is the “employer’s responsibility to determine the
applicability of the FMLA.” Price v. City of Fort Wayne, 117
F.3d 1022, 1026 (7th Cir. 1997). Certainly, if Ridings had
presented any evidence that the use of the term “intermit-
tent” had in any way influenced her decision not to turn in
the FMLA forms, we would consider that fact and the
reasonable inferences drawn therefrom in favor of Ridings.
However, Ridings’s own complaint, summary judgment
exhibits, and deposition testimony indicate that her
reasons for failing to turn in the FMLA forms were entirely
unrelated to the use of the term “intermittent.”
Ridings testified in her deposition that she did not return
the FMLA forms because she had not requested a leave;
No. 06-4328 19
she explained that she supplemented her schedule by
working from home, and she was, therefore, not taking
leave. Ridings’s complaint stated that she “did not desire
to take medical leave under FMLA. She further knew that
she did not have a serious health condition . . . and was
not receiving continuing treatment by a heath care pro-
vider . . . . Therefore, [Ridings] refused to apply for FMLA
leave and declined to provide the requested medical
certification.” Finally, Ridings’s written comments on the
last CAR state: “The FMLA forms were requested by my
supervisor with the clear intent of treating me as an hourly
employee.” We conclude that Riverside’s reference to the
wrong type of leave, under the unusual facts of this case,
did not excuse Ridings from complying with her FMLA
obligations.
Next, we consider Ridings’s contention that Riverside
never requested medical certification. Ridings argues that
the CARs all reference her need to apply for intermittent
leave, but Ridings does not point to any evidence to
dispute that Riverside provided her with an FMLA medical
certification form in addition to giving her the CARs. In
contrast, a significant amount of evidence indicates that
Riverside had, indeed, requested medical certification. For
instance, when counsel for Riverside showed Ridings a
document during her deposition, Ridings identified it as “a
medical certification for leave.” She stated that she be-
lieved it was the same document that Hansen had given
her to complete in 2004, although she was not entirely
certain. She answered questions repeatedly about River-
side’s request for “certification” without ever expressing
her belief that she had not been asked to provide certifica-
20 No. 06-4328
tion. Finally, Ridings’s own complaint stated: “[Ridings]
refused to apply for FMLA leave and declined to provide
the requested medical certification.” Ridings’s unsup-
ported contentions that Riverside never asked her for
medical certification cannot be used to create a genuine
issue of material fact. See Olsen v. Marshall & Ilsley Corp.,
267 F.3d 597, 604 (7th Cir. 2001) (explaining that a party’s
“self-serving allegations . . . are insufficient to create a
genuine issue of material fact”).
Ridings also asserts that there is no evidence that River-
side’s request for medical certification was a written
request. An employer must give notice of a requirement for
medical certification each time a certification is required. 29
C.F.R. § 825.305(a). The notice must state the consequences
of failing to provide certification. Id. § 825.301(b)(1)(ii). The
notice for an initial medical certification must be in writing,
unless the employee has been provided with written copies
of the employer’s FMLA policies within the past six
months; subsequent requests for certification can be made
orally. Id. § 825.305(a); Id. § 825.301(b)(1)(ii).
Ridings argues that the only written request that River-
side made was for her to apply for intermittent leave. She
does not argue that the medical certification form she was
given could not constitute a written request. Riverside gave
Ridings the FMLA paperwork on April 1, 2004. The
medical certification form contained a warning at the top
of the form in bold text that the form must be returned
within fifteen days or the leave request will be delayed.
The FMLA “does not require the employer to request
medical documentation on a particular form. All that is
No. 06-4328 21
required is that the employee be informed in writing that
he or she has 15 days in which to submit proof of a serious
health condition, and of the consequences if it is not
submitted within the deadline . . . .” Rager v. Dade Behring,
Inc., 210 F.3d 776, 778 (7th Cir. 2000). Ridings received the
medical certification form which documented the neces-
sary information that was required to be given to her, and
so she received appropriate written notice of her obliga-
tions under FMLA.
Ridings objects to the district court’s characterization of
the note from her doctor as “notice” to Riverside, which
triggered its request for medical certification. An employer
is entitled to notice that an employee will need FMLA
leave. When the employee’s need for leave is foreseeable,
the employee must give the employer thirty days notice;
otherwise, the employee should inform the employer “as
soon as practicable.” 29 C.F.R. § 825.303(a). Ridings has
presented evidence that Riverside was aware of her
surgery and the fatigue caused by the medication through-
out the following year. There is no evidence that Ridings
gave Riverside notice of a need to take reduced schedule
leave in the explicit terms set forth in the regulations, but
Ridings’s deposition testimony indicated that when asked
by Hansen about her recovery, she explained her problem
with fatigue caused by the medication. As Ridings con-
tends, the note from her doctor in March 2004 could not
constitute “notice” in the usual sense—where an employee
informed the employer of an illness of which it may have
been completely unaware.
The FMLA contemplates, however, that at some point in
time an employer would be justified in seeking some
22 No. 06-4328
additional medical information. The regulations provide
that generally, an employer should ask that the employee
furnish certification at the time the employee requests to
take the leave; however, the regulations permit an em-
ployer to request certification at a later date if the employer
“has reason to question the appropriateness of the leave or
its duration.” 29 C.F.R. § 825.305(c). Riverside had received
a medical certification form for Ridings’s FMLA leave for
her surgery in January 2003, and, according to Ridings,
Riverside had verbal updates throughout the year. It
would have been lawful under the FMLA for Riverside to
eventually ask Ridings for medical documentation to
substantiate her continued need to work a reduced sched-
ule, and the note from her physician could be considered
“notice” that the FMLA might still be implicated by her
condition.
Ridings also asserts that the request Hansen gave her for
“some type of documentation” was fulfilled by the note
from her doctor and was “fully responsive” to his request.
She argues that, given what Riverside already knew about
her condition, the note should have been sufficient certifi-
cation, or she should have been given the chance to supply
adequate information. Medical certification is sufficient if
it states the date on which the serious health condition
commenced, the probable duration of the condition, the
appropriate medical facts within the knowledge of the
health care provider regarding the condition, and a state-
ment that the employee is unable to perform the functions
of the employee’s position. 29 U.S.C. §§ 2613(b)(1)-(4). In
the case of certification for intermittent or reduced sched-
ule leave, the certification must include the dates on which
No. 06-4328 23
planned medical treatment is expected to be given and the
duration of such treatment, as well as a statement of the
medical necessity for the intermittent or reduced schedule
leave and the expected duration of such leave. Id.§§ 2613(b)(5)-(7). Where medical certification is incomplete,
the employer must advise the employee of the informa-
tion’s insufficiency and provide the employee a reasonable
opportunity to cure the deficiency. 29 C.F.R. § 825.305(d).
Ridings admits that the doctor’s note does not contain all
the information to which Riverside was entitled but
suggests that it knew the relevant medical facts and could
determine that she qualified for FMLA leave. She has
presented evidence that Riverside was aware of the
beginning date of her medical condition and that her
fatigue was caused by her medication. However, Riverside
was entitled to receive additional information, and it
demonstrated that it was particularly interested to know
the expected duration of her leave. Ridings did not provide
Riverside with this information. Even assuming that the
doctor’s note constituted “certification,” Riverside certainly
gave Ridings a reasonable opportunity to cure any defi-
ciency in it, when it repeatedly told her from April 1, 2004,
until her termination on May 13, 2004, that she needed to
fill out the FMLA paperwork. That paperwork included a
medical certification form for her doctor with questions
that were designed to supply Riverside with the pertinent
medical information it needed to determine whether
Ridings was entitled to FMLA leave and to assess its own
employment needs for the duration that Ridings would be
working a reduced schedule.
24 No. 06-4328
Ridings next contends that the disciplinary action taken
against her was not authorized by statute, regulation, or
Riverside’s policies. 29 C.F.R. § 825.312(b) provides:
If an employee fails to provide in a timely manner a
requested medical certification to substantiate the need
for FMLA leave due to a serious health condition, an
employer may delay continuation of the FMLA leave
until an employee submits the certificate. If the em-
ployee never produces the certification, the leave is not
FMLA leave.
(internal citations omitted). However, an employer must
have advised the employee of the anticipated consequences
of the employee’s failure to provide adequate certification.
29 C.F.R. § 825.305(d). Riverside’s medical leave policy
states:
If you are requesting leave because of your own serious
health condition, you and the relevant health care
provider must supply appropriate medical certification
. . . . The medical certification must be given within 15
days after it is requested, or as soon as reasonably
possible under the circumstances. Failure to provide
requested medical certification in a timely manner may
result in denial of leave until it is provided.
Riverside’s medical certification properly warned that:
“Form must be returned within 15 days or leave request
may be delayed.” Riverside’s policy on attendance stated:
“Excessive absenteeism that is not considered a serious
health condition under the Family and Medical Leave Act
(FMLA) will lead to disciplinary action, up to and includ-
ing termination.”
No. 06-4328 25
Ridings contends that Riverside cannot terminate her for
excessive absenteeism because it admitted in the interroga-
tory that she was on leave on the day of her termination;
therefore, her reduced hours could not have been consid-
ered absences. As previously noted, Riverside amended
this interrogatory. The Federal Rules of Civil Procedure
require a party who has responded to an interrogatory to
supplement or correct its response in a timely manner if
the party learns that “in some material respect the . . .
response is incomplete or incorrect.” Fed. R. Civ. P.
26(e)(1)(A). Riverside corrected its earlier response before
the close of discovery to reflect the fact that, at the time of
her termination, Ridings had not been working a full
schedule at Riverside, but Riverside never made a determi-
nation as to the applicability of the FMLA to Ridings
because of her failure to turn in the forms. Other than
Riverside’s prior interrogatory answer, Ridings has
presented no evidence to contradict Riverside’s corrected
statement; whereas, a significant amount of evidence
shows that the original interrogatory answer was inaccu-
rate. It is uncontradicted that Ridings was working a
reduced schedule in 2003 and 2004. However, the evidence
shows that Ridings conceded repeatedly in her deposition
that she had not requested FMLA leave, other than for her
surgery in January 2003, and she did not believe that she
was taking leave. Viewing the facts in Ridings’s favor,
however, we will assume that because she was working a
reduced schedule in 2003 and 2004, she was on FMLA
leave. On April 1, 2004, however, Riverside requested that
she fill out an FMLA form and certification form, and she
failed to complete them. Therefore, the times in which
26 No. 06-4328
Ridings left early from the date on which the forms were
due, April 16, until her termination on May 13, 2004, were
not considered FMLA-excused absences, and so Ridings
was no longer “on FMLA leave” after April 16, 2004.3
Ridings states that “even if Riverside did request medical
certification . . . Riverside’s remedy was to delay the leave,
not to terminate Ridings.” Where an employee’s leave is
delayed, the subsequent absences are not excused, and
Riverside’s policies explicitly stated that extensive ab-
sences which were not covered by FMLA would lead to
disciplinary action, “up to and including termination.” See
Rager, 210 F.3d at 778 (concluding that an employee’s
termination was appropriate because any absence beyond
the deadline for turning in medical certification was not an
entitled absence under the FMLA). Riverside’s policies
permitted it to terminate Ridings for absenteeism because
she did not demonstrate FMLA entitlement; therefore, her
termination was not unlawful.
Riverside also contends that it could have terminated
Ridings for insubordination. Ridings objects to that charac-
3
Ridings’s initial complaint alleged FMLA interference because
Ridings “did not desire to take medical leave under FMLA,” and
Riverside attempted to force her to take leave. We addressed a
similar argument recently in Dotson v. BRP U.S. Inc., 520 F.3d
703, 708 (7th Cir. 2008). If an employee does not wish to take
FMLA leave but continues to be absent from work, then the
employee must have a reason for the absence that is acceptable
under the employer’s policies, otherwise termination is justified.
See id.No. 06-4328 27
terization because the evidence—for example, the final
CAR—never mentions that she was insubordinate. The
evidence demonstrates that Riverside terminated Ridings
for repeatedly ignoring its requests to either turn in the
FMLA forms or begin working a full schedule. Ignoring
repeated requests from a supervisor is insubordination.
Riverside’s employee conduct policy prohibited insubordi-
nation, and so her termination would have been justified
on those grounds as well.
Finally, Riverside contends that our decision in Darst v.
Interstate Brands Corp., 512 F.3d 903 (7th Cir. 2008) demon-
strates that if Ridings had been working eight hours per
day on the premises and at home, as she contends that she
did, then she is not eligible for FMLA leave. In Darst, the
employee sought treatment for alcoholism and was
hospitalized for eight days. He was also absent from work
for three days prior to his hospitalization. The employee
was terminated for absenteeism based upon several earlier
absences and the three days he was absent prior to his
hospitalization. We held that because the employee had
not demonstrated that he was receiving treatment that
rendered him unable to work on those three days, he did
not demonstrate FMLA entitlement. Id. at 912.
We agree that if Ridings was fulfilling the requirements
of her job, then she would not be entitled to FMLA leave.
Ridings contends that she was working eight hours per day
when counting the hours she worked from home. Because
Riverside insisted that Ridings work eight hours per day
on the premises, however, it is a reasonable inference that
working eight hours on the premises was an essential
28 No. 06-4328
function of her position. Ridings has presented evidence
that she was unable to work a full schedule at work
without going home to rest. Therefore, Darst does not
foreclose Ridings’s entitlement to FMLA because, although
she was able to work eight hours somewhere, she was not
able to work eight hours on the premises, as her employer
required.
Ridings notes that Riverside had a policy that stated:
Exempt staff are paid a salary for the job for which
they were hired. The actual hours an exempt staff
member works to complete the job for which they were
hired are not recorded. If the work load for an exempt
staff member goes above 40 hours in a week, that
person does not receive additional compensation. If the
work load for an exempt staff member requires only 30
hours to complete, the exempt staff person still gets
paid their full salary.
Riverside also had two policies relevant to Riverside’s
ability to determine an individual’s schedule. “Riverside
may vary work schedules for employees based on staffing
needs and operational demands,” and “[w]ork schedules
for employees vary throughout our organization. Supervi-
sors will advise employees of their individual work
schedules.”
The first policy seems to indicate that Ridings could have
worked only thirty hours per week, and Ridings claims
that she was working at least thirty hours per week. This
policy does not assist Ridings in asserting a claim for
FMLA interference because, as explained above, she would
have been fulfilling the essential functions of her position
No. 06-4328 29
if she was working a full schedule. Because Hansen
insisted that she needed to work a full schedule on the
premises, she may have been entitled to take FMLA leave.
However, the failure to turn in the forms forecloses Rid-
ings’s ability to persevere on an FMLA interference claim
because she did not fulfill her obligations in order to be
protected.
B. FMLA Retaliation
Ridings also asserted a claim against Riverside for
retaliation in violation of the FMLA. The FMLA provides
that it is unlawful for any person to “discharge or in any
other manner discriminate against any individual for
opposing any practice made unlawful” by the FMLA. 29
U.S.C. § 2615. In asserting a charge of retaliation under the
FMLA, a plaintiff may proceed under the direct or indirect
methods of proof. Burnett, 472 F.3d at 481.
Under the direct method, a plaintiff must present
evidence that her employer took a materially adverse
action against her on account of her protected activity. Id.A plaintiff can prevail under the direct method by showing
an admission of discrimination or by “constructing a
convincing mosaic of circumstantial evidence that allows
a jury to infer intentional discrimination by the
decisionmaker.” Phelan v. Cook County, 463 F.3d 773, 779
(7th Cir. 2006) (quoting Rhodes v. Ill. Dep’t of Transp., 359
F.3d 498, 504 (7th Cir. 2004)). If the plaintiff’s evidence is
thereafter contradicted,
the case must be tried unless the defendant presents
unrebutted evidence that he would have taken the
30 No. 06-4328
adverse employment action against the plaintiff even
if he had had no retaliatory motive; in that event the
defendant is entitled to summary judgment because he
has shown that the plaintiff wasn’t harmed by retalia-
tion.
Burnett, 472 F.3d at 481 (citing Stone v. City of Indianapolis
Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002)). On
appeal, Ridings asserts a claim of retaliation only under the
direct method. She argues that Riverside took a materially
adverse action when it terminated her for her protected
activity, working a reduced schedule. Ridings describes
several occurrences from which she contends that a jury
could infer intentional discrimination.
Several of Ridings’s pieces of circumstantial evidence
relate to Riverside’s motive for objecting to her reduced
schedule. Ridings cites that she received a favorable work
evaluation in June 2003 and Riverside could not identify
any complaints about the “quality, quantity, or timeliness”
of her work during the time period of her reduced sched-
ule. She also states that Hansen did not begin objecting to
her shortened schedule until she had finished the large
payroll protect in January 2004. She contends that there
was no “business justification” for needing her to work an
eight-hour day or to work her full schedule on the pre-
mises. Riverside acknowledges that it did not terminate
Ridings because of poor work quality. However, this does
not lead to an inference that Ridings’s termination was
retaliatory. Riverside was entitled to ask Ridings to work
a full schedule on the premises because she was a full-time
employee; an employee cannot simply inform the employer
when and from where she would like to work.
No. 06-4328 31
Ridings cites to Washington v. Illinois Department of
Revenue, 420 F.3d 658 (7th Cir. 2005), in which an employee
worked an earlier flex-time shift in order to care for her
son, who had Down Syndrome, each afternoon. The
employee filed a charge of race discrimination against the
employer, for reasons unrelated to her schedule, and her
position was later eliminated. She was required to move to
a new position and re-apply for flex-time, but the flex-time
request was refused. We held that a jury could infer
discrimination, in that her employer had “set out to exploit
a known vulnerability” by requiring her to work a later
schedule. Id. at 663. Ridings implies that her situation is
comparable, in that Riverside was asking her to do some-
thing that it knew she could not do, work eight hours on
the premises. The employee in Washington requested
permission for a different schedule; she did not contend
that she was entitled to leave early or to work from home.
Ridings insisted throughout her deposition that she did not
need to be on leave. She asserts that Riverside knew that
she was working from home, but she does not contend that
she had ever requested or been granted permission to work
part of her schedule from home. Riverside gave Ridings an
alternative—she could either work a full schedule on the
premises or fill out FMLA paperwork, but Ridings admit-
ted that she did not begin to work an eight-hour day on the
premises and that she “refused to apply for FMLA leave
and declined to provide the requested medical certifica-
tion.”
Ridings also contends that a jury might infer that the
request to provide “some type of documentation” of her
medical condition was an intentionally vague “set-up,” so
32 No. 06-4328
that Riverside could later claim that the information she
provided was insufficient. Ridings also argues that the
manner in which Riverside requested the FMLA paper-
work and the decision to terminate her would allow a jury
to infer retaliation. Although Riverside’s initial request for
documentation may not have been ideal, Riverside gave
her the FMLA forms she needed and more time than the
FMLA required to fill them out. Riverside was permitted
by the FMLA to require Ridings to substantiate her contin-
ued need for a reduced schedule, and it terminated her in
accordance with the FMLA and its employment policies,
after giving her repeated opportunities to provide the
information it had requested. An employer cannot be
deemed to retaliate against an employee by asking her to
fulfill her obligations under the FMLA.
C. Workers’ Compensation Retaliation
Ridings asserted that Riverside also retaliated against her
in violation of the Illinois Workers’ Compensation Act. The
district court had discretionary authority to consider this
claim under its supplemental jurisdiction. See 28 U.S.C.
§ 1367(a). Generally, when a court resolves all federal
claims before trial, it should dismiss supplemental claims
without prejudice. Redwood v. Dobson, 476 F.3d 462, 467 (7th
Cir. 2007). However, the court was not required to dismiss
the state law claim, and neither party objected to its
continued exercise of supplemental jurisdiction. See Jones
v. Patrick & Assocs. Detective Agency, 442 F.3d 533, 535 n.1
(7th Cir. 2006) (considering a state-law claim on appeal
where the district court elected to retain its supplemental
jurisdiction).
No. 06-4328 33
To prevail on a claim for retaliatory discharge under the
Illinois Workers’ Compensation Act, Ridings must allege
that (1) she was an employee of Riverside before or at the
time of the injury; (2) she exercised a right granted by the
Act; and (3) her discharge was causally related to the
exercise of that right under the Act. Clemons v. Mech.
Devices Co., 704 N.E.2d 403, 406 (Ill. 1998). If Riverside can
demonstrate a valid basis for discharging Ridings that is
not pretextual, the element of causation is not met. See id.Ridings has clearly met the first two elements; she was an
employee of Riverside when she was diagnosed with
Graves’ disease in December 2002, and she filed a claim
under the Workers’ Compensation Act in July 2003.
Ridings attempts to satisfy the third element through
circumstantial evidence. First, she argues that she com-
pleted work on the payroll project for Riverside in January
2004 and, at that same time, Hansen began to ask her to
work a full schedule. Second, she notes that her attorney
sent a demand letter to Riverside on March 8, 2004, which
was three days prior to Hansen’s draft of the first CAR.
Third, she notes that Hansen emailed two Riverside
employees whose responsibilities included managing
workers’ compensation claims to inform them of Ridings’s
discipline relating to the FMLA forms. Finally, she recounts
a remark that Hansen made in her presence about workers’
compensation claims, and he looked at her and laughed.
Ridings claims that these events demonstrate that River-
side’s reasons for terminating her were pretextual.
Ridings’s first piece of circumstantial evidence is that she
started a major project for Riverside around the same time
34 No. 06-4328
period that she filed the workers’ compensation claim, and
as soon as she completed the protect Riverside began to
require her to work a full schedule. Ridings suggests that
Riverside was waiting to retaliate against her until she had
completed the project. Ridings cites Pryor v. Seyfarth, Shaw,
Fairweather & Geraldson, 212 F.3d 976, 980 (7th Cir. 2000), in
which we found that “[a] reasonable jury could find that
after and because [the employee] filed a [sexual harass-
ment] claim, the firm was ‘laying’ for her, biding its time to
create a space between the date of the claim and the date of
the discharge, and in the interval gathering pretextual
evidence of misconduct to provide a figleaf for its retalia-
tory action.” Ridings suggests that there is sufficient
evidence to show that Riverside was similarly “biding its
time” before it terminated her. In Pryor, the employee was
terminated for applying an artificial fingernail to a visitor
in the restroom while she was on break. The incident
occurred three months after the employee filed a sexual
harassment claim. The employer asserted that the em-
ployee was terminated because of the fingernail incident
and because she had a history of unsatisfactory work and
wearing inappropriate attire to work. The evidence did not
support the contention that her work was poorly per-
formed, and the evidence conflicted as to the employer’s
problems with her attire; therefore, we found that there
was sufficient evidence of retaliation to survive summary
judgment. Id. Here, there is no such evidence of pretext.
Riverside admitted that Ridings was not terminated for
poor work performance. The evidence shows that Ridings
was terminated for failure to turn in FMLA paperwork,
and Riverside was lawfully entitled to ask her to fill out
No. 06-4328 35
FMLA paperwork. Ridings does not suggest or provide
evidence that, if she had complied with the request to turn
in FMLA paperwork, Riverside would have created
alternate reasons to terminate her. We conclude that the
evidence does not support Ridings’s contention that
Riverside waited for six months after she filed the claim
and began retaliating against her by requesting that she
work a full schedule or take FMLA leave.
Ridings’s second piece of circumstantial evidence is that
her attorney sent Riverside a demand letter on March 8,
2004, and Hansen began drafting the first CAR on March
11, 2004. Riverside contends that Ridings did not prove
that any decisionmaker knew of the demand letter. How-
ever, Ridings did not need to prove that Hansen or another
decisionmaker actually knew of her claim; a reasonable
inference is enough, and an adverse employment action
“on the heels of the protected activity” is circumstantial
evidence of a decisionmaker’s knowledge and retaliation.
Scott v. Sunrise Healthcare Corp., 195 F.3d 938, 941 (7th Cir.
1999). However, the significance of the timing of this
evidence is undercut by the fact that Hansen began the
disciplinary process before the demand letter was sent; he
informed Ridings that she needed to begin working a full
schedule on January 25 and February 25, 2004, several
weeks prior to the demand letter being sent. Ridings
observed that the “formal” disciplinary process started
three days after the demand letter was sent, even if the
“informal” process had already begun. However, employ-
ers commonly use a formal disciplinary process after an
informal process has failed to achieve the desired results.
Ridings admittedly did not begin working a full day after
36 No. 06-4328
Hansen informally talked to her twice, and so we conclude
that Hansen’s implementation of a “formal” process in
approximately the same time period as Riverside received
her demand letter is not indicative of retaliation.
Ridings’s third piece of circumstantial evidence is that
Hansen sent an email to two Riverside employees who
worked in the Risk Services Department about Ridings’s
discipline. The two employees were not involved in
disciplining employees but were involved in managing
workers’ compensation claims. She notes that one of those
employees also had a conversation about Ridings’s work-
ers’ compensation claim with Hansen. If the email or
conversations had yielded evidence of retaliation, then
summary judgment would be inappropriate. Here, the
email was simply an interdepartmental message from
Ridings’s supervisor that informed two employees who
managed her workers’ compensation claim that she was
being disciplined for failure to turn in FMLA leave forms.
Hansen testified in his deposition that he sent the message
because Ridings had presented him with her attorney’s
business card, and so he felt that it would be prudent to
inform the Risk Services employees who were involved
with Ridings’s claim. The conversation between the Risk
Services employee and Hansen about Ridings’s claim also
did not yield any retaliatory evidence. The mere fact that
a Risk Services employee discussed the workers’ compen-
sation claim with Ridings’s supervisor does not create an
inference of retaliation.
Finally, Ridings describes a remark that Hansen made in
her presence, in which he stated to another employee who
No. 06-4328 37
was climbing on a table to change the time on the clock,
“Watch out, we don’t want a workers’ comp claim.”
Hansen then looked at Ridings and laughed. Ridings
believes this event occurred sometime during April 2004,
which would have been during the time period of the
disciplinary process that led up to Ridings’s termination.
This piece of evidence is a closer call. Isolated, “stray
workplace remarks” are sometimes insufficient to defeat
summary judgment. Bahl v. Royal Indem. Co., 115 F.3d 1283,
1293 (7th Cir. 1997). Where a decisionmaker, or a person
who provided input into the decision, expressed feelings
around the time of, and in reference to, the adverse em-
ployment action complained of, then it “may be possible to
infer that the decision makers were influenced by those
feelings in making their decision.” Hunt v. City of Markham,
Ill., 219 F.3d 649, 653 (7th Cir. 2000). Hansen was admit-
tedly a decisionmaker in Ridings’s termination. Hansen’s
comment was proximate in time to Ridings’s termination,
as it occurred sometime during the month prior to her
termination. The comment suggested that Hansen was
aware of Ridings’s workers’ compensation claim, but his
comment was not made in reference to an adverse employ-
ment action. We conclude that the remark was isolated and
insufficient for us to infer that the decision to terminate
Ridings was related to her filing of a workers’ compensa-
tion claim. See Bahl, 115 F.3d at 1293 (finding that a
decisionmaker’s derogatory comments about his inability
to understand an employee due to the employee’s accent
were insufficient to defeat summary judgment because
they were not linked to the decision to terminate the
employee); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140
38 No. 06-4328
(7th Cir. 2000) (finding that a decisionmaker’s isolated
comment that the employee was too old to train for another
position was insufficient to defeat summary judgment
because the employee did not show “that age actually
played a role in the defendant’s decisionmaking process
and had a determinate influence on the outcome”). But see
Hunt, 219 F.3d at 652 (finding that summary judgment was
not appropriate where a decisionmaker made repeated
racist and ageist remarks, the decisionmaker had the power
to recommend denying raises for the employees, and the
employees did not receive raises until after the lawsuit was
initiated). Riverside has articulated a valid basis for
terminating Ridings, and we find that Ridings has failed to
demonstrate sufficient evidence to show that Riverside’s
stated reason for the termination was pretext. Therefore,
Ridings cannot succeed on this claim.
III. Conclusion
We conclude that Riverside is entitled to summary
judgment on all three claims, and, therefore, we AFFIRM
the district court’s decision.
8-11-08