Delarama, Elizabeth v. IL Dept Human Servic ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1156
E LIZABETH D ELARAMA,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF H UMAN S ERVICES, and
M ARY Z UKOWSKI, individually and in her official capacity,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 05 CV 5163—Milton I. Shadur, Judge.
____________
A RGUED M AY 5, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before C UDAHY, P OSNER and R OVNER, Circuit Judges.
C UDAHY, Circuit Judge. Elizabeth de la Rama 1 brought
this lawsuit against her employer alleging discrimination
1
The district court observed that the parties’ filings were
inconsistent in their spelling of the plaintiff’s name. Noting that
the plaintiff signs her name “de la Rama,” the court conformed
its opinion to this spelling. Like the district court, we defer to
the plaintiff’s spelling of her name.
2 No. 07-1156
in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., interference with her rights
under the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq. and common law defamation. The
district court granted the defendants’ motion for sum-
mary judgment and de la Rama appeals. We affirm.
I. Background
De la Rama is a Filipino-American who is employed as
a registered nurse at Chicago-Read Mental Health
Center (Chicago-Read), a residential facility for mentally
ill adults that is run by the Illinois Department of Human
Services (the Department). From January 2004 to Jan-
uary 2005, Mary Zukowski was de la Rama’s supervisor.
Pursuant to Chicago-Read’s leave policy, de la Rama
received 12 sick days per year, which accrued at a rate
of one sick day per month. De la Rama called in sick from
July 19, 2004 through August 19, 2004. Although she
was diagnosed with fibromyalgia in early August, she did
not convey this information to her employer until much
later. Instead, de la Rama sporadically submitted notes
from physicians stating that she was ill. For example, on
July 21, 2004, de la Rama called in sick but showed up
at Chicago-Read that afternoon during a coworker’s
retirement party. At the party she attempted to give
Zukowski a doctor’s note explaining that she was suf-
fering from back pain and was unable to return to work
for one week. Zukowski told her that they should
discuss the matter later. When de la Rama could not find
Zukowski after the party, she left the note with a coworker.
No. 07-1156 3
Although de la Rama had exhausted her sick leave by
this point, she continued to call in sick without ex-
plaining the nature of her illness.
On July 27, 2004, de la Rama provided her employer
with a doctor’s note stating that she was under medical
care and could not return to work until August 10,
2004. The next day she spoke with a Human Resources
Specialist who told her that in order to request medical
leave, she needed to submit a written request and a
completed “CMS 95” form. De la Rama did not submit a
written request or a CMS 95 form and did not return to
work on August 10. She had no further contact with
Chicago-Read until August 19, when the Associate Di-
rector of Nursing called her to discuss her absence. On
August 20, she submitted three more doctor’s notes, one
of which stated that she could return to work on Au-
gust 23. She also submitted a note stating that she was
requesting medical leave beginning on July 16, 2004 until
an unknown date. The notes did not state her condition
nor describe its severity. De la Rama did not return to
work on August 23.
On October 4, 2004, de la Rama submitted a completed
CMS 95 form, which explained that she suffered from
fibromyalgia and a herniated disk. Chicago-Read retroac-
tively granted her leave to the date of her last sick day,
September 2, 2004. De la Rama returned to work on
January 3, 2005. At de la Rama’s request, she was assigned
to a different unit under a new supervisor upon her return.
While de la Rama was absent from work in July and
August, the work days she missed were treated as unau-
4 No. 07-1156
thorized absences (UAs). She accrued a total of 24 UAs.
After de la Rama returned to work in 2005, she, her union
representative and her new supervisor attended a
pre-disciplinary meeting regarding these UAs. The
parties decided that de la Rama would not be dis-
ciplined for the UAs but that future UAs would trigger a
disciplinary proceeding against her. De la Rama pursued
a grievance in order to remove the UAs from her employ-
ment record. At the third-level grievance hearing, manage-
ment and de la Rama’s union representatives agreed
that the absences would remain on her record but would
never be used in any disciplinary proceedings against her.
On September 9, 2005, after receiving a right to sue
letter from the Equal Employment Opportunity Com-
mission, de la Rama filed this lawsuit alleging that the
Department had discriminated against her because of her
race and national origin. In addition, de la Rama com-
plained that the Department violated the FMLA by refus-
ing to allow her to take leave for a serious medical condi-
tion. She also brought a common law defamation claim
against Zukowski, alleging that Zukowski falsely claimed
that de la Rama’s absences were unauthorized and that
Zukowski made false statements about her during the
third-level grievance hearing. On January 5, 2007, the
district court granted summary judgment for the defen-
dants. This timely appeal followed.2
2
In addition to the claims at issue in this appeal, de la Rama
brought claims under 42 U.S.C. §§ 1981 and 1983 against
(continued...)
No. 07-1156 5
II. Discussion
We review a grant of summary judgment de novo,
“viewing all facts and the reasonable inferences drawn
therefrom in the light most favorable to the nonmoving
party.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).
Summary judgment is appropriate only “where ‘there is
no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’ ” Id.
(quoting FED. R. C IV. P. 56(c)). A nonmoving party cannot
defeat a motion for summary judgment with bare allega-
tions. Smith v. Potter, 445 F.3d 1000, 1006 (7th Cir. 2006);
see also Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608,
612 (7th Cir. 2005) (to defeat summary judgment,
nonmoving party must adduce more than “a scintilla
of evidence” in support of its claim). Rather, a party
opposing summary judgment must present “evidence on
which the jury could reasonably find for the nonmoving
party.” Rozskowiak, 415 F.3d at 612.
A. Employment discrimination claim
Title VII of the Civil Rights Act of 1964 prohibits
an employer from discriminating against an employee
2
(...continued)
Zukowski and a claim under the Americans with Disabilities Act
(ADA) against the Department. The district court dismissed
her § 1981 and § 1983 claims and disposed of her ADA claim
on summary judgment. De la Rama does not appeal the
district court’s disposition of these claims.
6 No. 07-1156
“with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). “A plaintiff may prove intentional em-
ployment discrimination under Title VII by using either
the ‘direct method’ or ‘indirect method.’ ” Rhodes v. Ill.
Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004).3 Both
methods require the plaintiff to show that she suffered a
materially adverse employment action. Id. The district
court concluded that de la Rama did not suffer any cogni-
zable adverse employment action and thus, that she
could not proceed on her discrimination claim under
either the direct or indirect method of proof. On appeal,
she disputes this finding, arguing that the recording
and preservation of 24 UAs on her record constitutes a
materially adverse employment action. We disagree.
3
A plaintiff who proceeds under the direct method of proof
must adduce direct or circumstantial evidence that shows that
her employer’s decision to take an adverse employment action
against her was motivated by a discriminatory purpose. Rhodes,
359 F.3d at 504. Under the indirect method, a plaintiff must
establish a prima facie case of discrimination by showing that
she is a member of a protected class, that she was performing
her job satisfactorily, that she suffered an adverse employ-
ment action and that she was treated less favorably than
similarly situated individuals. Id. “If the plaintiff establishes
a prima facie case, the employer must articulate a legitimate,
non-discriminatory reason for its employment action, and
in response the plaintiff must prove that the employer’s prof-
fered non-discriminatory reason is a pretext for discrimin-
ation.” Id.
No. 07-1156 7
We have explained that in order to be actionable,
“adverse actions must be materially adverse . . . meaning
more than a ‘mere inconvenience or an alteration of job
responsibilities.’ ” Oest v. Ill. Dep’t of Corr., 240 F.3d 605,
612 (7th Cir. 2001) (quoting Crady v. Liberty Nat’l Bank &
Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). “[A] ‘materially
adverse change might be indicated by a termination of
employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsi-
bilities, or other indices that might be unique to a particu-
lar situation.’ ” Id. at 612-13 (citation omitted). An em-
ployee’s unhappiness with her employer’s conduct or
decision is insufficient to support a claim under Title VII.
See Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).
Rather, “[a]t minimum, the employee must be able to show
a quantitative or qualitative change in the terms or condi-
tions of employment.” Haywood v. Lucent Techs., Inc., 323
F.3d 524, 532 (7th Cir. 2003). Thus, we have concluded
that negative performance evaluations, standing alone,
are not cognizable adverse employment actions. See, e.g.,
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir.
2006); Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854,
862 (7th Cir. 2005); Lucas v. Chi. Transit Auth., 367 F.3d 714,
731 (7th Cir. 2004); Smart v. Ball State Univ., 89 F.3d 437, 442
(7th Cir. 1996). Similarly, in Ribando v. United Airlines, Inc.,
200 F.3d 507 (7th Cir. 1999), we held that a “letter of
concern” that was placed in the plaintiff’s personnel file
after she was investigated for allegedly making a harassing
sexual comment did not constitute a materially adverse
employment action. Id. at 511.
8 No. 07-1156
We discern no reason to treat the UAs in this case
differently than we have treated negative performance
evaluations or the inclusion of a letter of concern in an
employee’s personnel file. Although we have defined the
term “adverse action” broadly and have emphasized
the importance of considering the facts of each case in
assessing whether an adverse action is material, see Bryson
v. Chi. State Univ., 96 F.3d 912, 916 (7th Cir. 1996), the
undisputed facts of this case persuade us that the UAs do
not in and of themselves constitute a materially adverse
action. Pursuant to the agreement reached by de la Rama
and her employer at the third-level grievance hearing,
the UAs on her record do not have any effect on the terms
or conditions of her employment. De la Rama attempts to
rely on Russell v. Bd. of Trs. of the Univ. of Ill. at Chi., 243
F.3d 336 (7th Cir. 2001), to support her contention that
the UAs constitute a materially adverse action. But in
Russell, we concluded that a five-day disciplinary suspen-
sion was materially adverse because Russell lost five
days of pay and her once-spotless record “now includes
a formal finding that she ‘falsified’ her time records and
committed ‘theft of services.’ ” Id. at 341. The disciplinary
action in Russell visited tangible consequences on the
plaintiff, an important fact that distinguishes that case
from the present one. In this case, de la Rama has not
alleged any material change in the conditions of her
employment—she was not fired or demoted, she
suffered no financial consequences and her responsibilities
have not changed. Because de la Rama has not alleged
that any tangible consequences resulted from the UAs,
Lucas, 367 F.3d at 731, we affirm the district court’s con-
No. 07-1156 9
clusion that she did not suffer a materially adverse em-
ployment action and its entry of summary judgment for
the defendants on her discrimination claim.
B. FMLA claim
The FMLA entitles eligible employees to up to twelve
weeks of leave during any twelve-month period if the
employee is unable to perform the functions of her posi-
tion on account of a serious health condition. See Harrell v.
U.S. Postal Serv., 445 F.3d 913, 919 (7th Cir. 2006) (citing
29 U.S.C. § 2612(a)(1)). It also prohibits an employer
from interfering with an employee’s attempt to exercise
her right to medical leave. Burnett, 472 F.3d at 477. In
order to prevail on her FMLA interference claim, de la
Rama was required to show the following:
(1) [s]he was eligible for the FMLA’s protections,
(2) [her] employer was covered by the FMLA, (3) [s]he
was entitled to leave under the FMLA, (4) [s]he pro-
vided sufficient notice of [her] intent to take leave, and
(5) [her] employer denied [her] FMLA benefits to
which [s]he was entitled.
Id. The district court concluded that de la Rama failed to
provide sufficient notice of her intent to take FMLA leave.
We agree. Although an employee is not required to refer
to the FMLA in order to give notice of her intent to take
FMLA leave, “the notice must succeed in alerting the
employer to the seriousness of the health condition.”
Stevenson v. Hyre Elec. Co., 505 F.3d 720, 725 (7th Cir. 2007).
Calling in sick without providing additional information
10 No. 07-1156
does not provide sufficient notice under the FMLA. Bur-
nett, 472 F.3d at 479; Collins v. NTN-Bower Corp., 272 F.3d
1006, 1008 (7th Cir. 2001) (“’Sick’ does not imply ‘a serious
health condition.’ ”). This is true even if the employee
provides her employer with a doctor’s note if the note
does not convey the seriousness of her medical condition.
See Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 311-12
(7th Cir. 2006). As the district court noted, during the
period when de la Rama called in sick in July and
August, she never indicated that she suffered from a
condition that would require an extended period of
leave. The FMLA’s notice burden is not onerous but
neither is it illusory. De la Rama did not provide docu-
mentation of her fibromyalgia until October 4, 2004. Until
that point, de la Rama informed her employer only that
she was sick, which is insufficient to suggest that she
suffered from an FMLA-qualifying condition.
We have recognized that in some situations, “an em-
ployee may be excused from expressing a need for
medical leave,” such as “when circumstances provide the
employer with sufficient notice of the need for medical
leave.” Burnett, 472 F.3d at 479; see also Byrne v. Avon Prods.,
Inc., 328 F.3d 379, 381 (7th Cir. 2003) (“dramatic change
in behavior” may provide notice of a serious medical
problem). De la Rama contends that the circumstances
surrounding her absences should have put the Depart-
ment on notice that she needed to take leave on account
of a serious medical condition. In support of this argument,
she cites an incident that occurred in May or June 2004
in which she was taken from work to the emergency
room. Based on this incident, she contends that when she
No. 07-1156 11
began calling in sick to work in July, her employer should
have known that she was suffering from an FMLA-qualify-
ing condition. This argument does not wash. The FMLA
does not require employers to play Sherlock Holmes,
scanning an employee’s work history for clues as to the
undisclosed, true reason for an employee’s absence. There
is simply nothing in the record to suggest the kind of
“dramatic, observable change in [de la Rama’s] work
performance or physical condition” that would excuse
her from failing to notify the Department of her need
for FMLA leave. Burnett, 472 F.3d at 480.
Further, in light of the fact that de la Rama was permitted
to take seventeen weeks of leave—five weeks more than
the twelve weeks the Department was required to give her
under the FMLA—we find it difficult to see how the
Department interfered with her entitlement to leave at
all. In fact, at oral argument her attorney stated that de la
Rama was not attempting to take FMLA leave when
she called in sick in July and August. This puzzling
concession further obscures the basis for de la Rama’s
FMLA interference claim since it is undisputed that the
Department granted her FMLA leave after she sub-
mitted her written request in October. In any event,
because de la Rama received FMLA leave after providing
notice in October 2004, and because she did not provide
adequate notice prior to that date, we affirm the court’s
grant of summary judgment on this claim.
C. Defamation claim
Before the district court, de la Rama alleged that
Zukowski defamed her on two occasions. First, during
12 No. 07-1156
July and August 2004, when Zukowski allegedly made
unfavorable statements about de la Rama’s absences to
some of her co-workers. The district court concluded that
Illinois’ one-year statute of limitations for defamation
barred the claim based on these statements since de la
Rama filed her lawsuit in September 2005. The second
incident of defamation supposedly occurred during the
third-level grievance hearing, when Zukowski told “false
stories” about de la Rama’s behavior while she was
enjoying the unauthorized absences and characterized
de la Rama’s doctors’ notes as deficient. The district court
concluded that the statements “concerned only de la
Rama’s failure to navigate through the proper procedures
and paperwork that would entitle her to extended time
off,” and thus, “[did] not fall into any of the categories
of defamation per se” under Illinois law. De la Rama’s
appeal of the court’s grant of summary judgment on her
defamation claim is conclusory and utterly lacking in
any citation to the applicable law or to facts in the record.
Thus, she has waived this issue. See Beamon, 411 F.3d at 862
(“[U]nsupported and undeveloped arguments are
waived.”).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
9-2-08