925 F.2d 1468 (7th Cir. 1991), 90-2189, Scalzitti v. Paddock Publications, Inc.

Docket Nº:90-2189.
Citation:925 F.2d 1468
Party Name:Tommie L. SCALZITTI, Plaintiff-Appellant, v. PADDOCK PUBLICATIONS, INC., Defendant-Appellee.
Case Date:February 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1468

925 F.2d 1468 (7th Cir. 1991)

Tommie L. SCALZITTI, Plaintiff-Appellant,



No. 90-2189.

United States Court of Appeals, Seventh Circuit

February 13, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued Jan. 30, 1991.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 88 C 7018, Ann Claire Williams, Judge.



Before BAUER, Chief Judge, and WOOD, Jr., and EASTERBROOK, Circuit Judges.


The magistrate judge recommended that the district judge enter summary judgment for the employer in this age discrimination case. The district judge did so, adopting the report and recommendation. After reading the briefs and listening to the oral argument, we conclude that Judge Lefkow's recommended decision accurately assesses the situation, and we affirm on the basis of her analysis, which we attach.







No. 88 C 7018


April 11, 1990.

To: The Honorable Ann C. Williams, United States District Judge.


Joan H. Lefkow, Magistrate:

Tommie L. Scalzitti ("Mrs. Scalzitti" or "plaintiff") brings this action against her former employer Paddock Publications, Inc. ("Paddock" or "defendant") for violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. The parties have completed discovery, and Paddock has moved for summary judgment under Fed.R.Civ.P. 56.

Procedure on Summary Judgment

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the depositions, answers to interrogatories, admissions on file, and affidavits that are a part of the record. Fed.R.Civ.P. 56, Notes of Advisory Committee on Rules. The initial burden of proving there is no genuine issue of material fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). To discharge this initial burden, the moving party need only point out to the court that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S.Ct. at 2553. Where the non-moving party will bear the burden of proof at trial on a dispositive issue, that party must prove that there exists a genuine dispute as to a material fact on that issue. Id. The non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific facts showing that there is a genuine issue for trial. Id. at 324. 106 S.Ct. 2553. While all factual inferences must be viewed in favor of the non-moving party, only reasonable inferences need be made. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). A bare contention that an issue of fact exists is insufficient to create a factual dispute. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983).

In keeping with these guidelines, the court will state the facts in a light most favorable to plaintiff insofar as plaintiff's version is supported by documentation in conformity with Rule 56(e).

Statement of Facts

Mrs. Scalzitti began work in 1965 in the circulation department of Paddock. Until an incident involving plaintiff's medical leave in spring 1987, Paddock was pleased with her job performance as reflected in written performance reviews for the two preceding years.

On March 9, 1987, Mrs. Scalzitti applied for and was granted a paid medical leave of absence until April 10. She completed and signed a medical leave form which provided, inter alia:

A Proof of Disability form must be completed by my physician and submitted at regular intervals. The Company may require a second opinion from a company appointed physician.

One week prior to the expiration date of the leave, I will contact the Human Resources Department to confirm my return to work date or request renewal of the leave. I understand that failure to return on or before the return date or failure to provide written approval of an extension will be considered a voluntary resignation. Prior to return I will submit a medical release from my physician.

Medical Leave of Absence Application. On April 10, Mrs. Scalzitti's original date to return to work, she requested an extension of her medical leave until April 27. This was not in compliance with the leave policy, which required that a request for an extension be submitted one week before the leave was to have expired.

On April 22, Ms. Sabados from Paddock's human resources department told Mrs. Scalzitti that the information submitted by plaintiff's physician, Dr. Muench, was insufficient. 1 Specifically, Ms. Sabados requested that the physician submit weekly progress reports outlining treatment, medication, the specific reason plaintiff could not perform her job, the progress necessary before plaintiff could return to work, and an anticipated return date. The information submitted by the doctor continued to be sketchy, indicating indefinite progress and an indefinite return to work date. 2 During an April phone conversation with Ms. Sabados, Dr. Muench explained that he usually releases a patient to return to work only after her physical condition improvesand the patient feels she is ready to return.

On April 24, when Mrs. Scalzitti requested a second extension of her medical leave, she was told that her disability benefits would not continue past April 24 due to her physician's incomplete reports. Later, Paddock informed her that it was exercising its option to have her examined by a second physician. At Paddock's request, Mrs. Scalzitti was examined by Dr. Charman on May 6.

On May 8, Paddock received a letter wherein Dr. Charman described his analysis of Mrs. Scalzitti's physical condition. As is to be expected in litigation of this nature, Dr. Charman disagreed with Dr. Muench and found Mrs. Scalzitti fit to return to work. Dr. Charman did not necessarily agree with Dr. Muench's diagnosis of hypoglycemia, but, in any event, both doctors agree that hypoglycemia can be controlled by diet within one week.

On May 11, Ms. Sabados contacted Mrs. Scalzitti and informed her that, based on the second opinion provided by Dr. Charman, she was not considered disabled. 3 She told Mrs. Scalzitti she was expected to return to work the next day, May 12, and that, pursuant to the medical leave policy, failure to do so would result in Paddock concluding that she had abandoned her job. Mrs. Scalzitti did not return to work the next day.

On May 18, Paddock summarized in a letter the history of Mrs. Scalzitti's medical leave and the communications between Paddock and Mrs. Scalzitti, and confirmed Paddock's position that she had voluntarily abandoned her job. Mrs. Scalzitti's doctor released her for work on May 20. This release was sent to Paddock along with a letter from Mrs. Scalzitti wherein she sought to return to work. Paddock responded that her employment was already forfeit. Subsequently, plaintiff received documentation allowing her to continue her medical coverage at her own cost (under COBRA), a check for unused vacation days and documentation allowing her to...

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