Shaffer v. American Med. Ass'n

• Decision Date: 18 October 2011
• Docket Number: No. 10–2117.,10–2117.
• Citation: 161 Lab.Cas. P 35956,662 F.3d 439,18 Wage & Hour Cas.2d (BNA) 396
• Parties: William SHAFFER, Plaintiff–Appellant, v. AMERICAN MEDICAL ASSOCIATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

161 Lab.Cas. P 35,956

18 Wage & Hour Cas.2d (BNA) 396

662 F.3d 439

William SHAFFER, Plaintiff–Appellant,

v.AMERICAN MEDICAL ASSOCIATION, Defendant–Appellee.

No. 10–2117.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 2010.Decided Oct. 18, 2011.

Jeffrey L. Taren (argued), Attorney, Kinoy, Taren & Geraghty, Chicago, IL, for Plaintiff–Appellant.

Jeffrey K. Ross (argued), Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendant–Appellee.

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

The American Medical Association was not immune to the downturn in the economy. Budget cuts mandated that some employees lose their jobs, including at least one in the department where William Shaffer worked. Fortunately for him, or so it seemed, his supervisor was leaning toward letting another person go. But soon after Shaffer requested leave in light of upcoming surgery, that changed. His supervisor decided that Shaffer would now be the employee let go in the department, and Shaffer contends that decision was prompted by his request for leave and was therefore improper under the Family and Medical Leave Act. The AMA maintains that the leave request had nothing to do with its decision, and a jury might well agree. But we agree with Shaffer that a reasonable jury could also find in his favor, and we reverse the grant of summary judgment against him.

I. BACKGROUND

At this stage in the proceedings, we recount the narrative that follows in the light most favorable to Shaffer since he was not the party who moved for summary judgment. The AMA first hired Shaffer in 1999. He resigned a year later, but the AMA rehired him in 2004 as a contract employee, and Michael Lynch hired him as a full-time employee in 2005. By 2008, Shaffer had become AMA's Director of Leadership Communications. His duties in that role included writing speeches and editorials, supervising a staff of three speech writers, and signing off on final speeches.

In August 2008 the economic downturn began to concretely affect the AMA. The organization asked all its departments to reduce their 2009 budgets by at least 3% below the previous year's budgets. At first, Lynch reduced his budget by eliminating an annual conference. The next month, in response to direction from the AMA board, Marietta Parenti, AMA's Chief Marketing Officer, directed department heads to consider all options to further reduce budgets, including the elimination of positions. Parenti and Lynch ultimately decided they needed to downsize by at least one position in Lynch's department.

On October 28, 2008, Parenti emailed Lynch to ask for his recommendation regarding the elimination of a position. Lynch responded that afternoon, beginning his email by stating, “I know you want closure on this issue tomorrow....” It was already Lynch's plan to eliminate the position of Peter Friedman, the Communications Campaign Manager, because his responsibilities had changed drastically and the AMA had stopped work on one of his core campaigns, and Lynch had previously told Parenti that he had planned to cut Friedman's position. Parenti's October 28 request sought Lynch's recommendation about whether to terminate Shaffer as well, and Lynch wrote in his email that he did not think cutting additional positions beyond Friedman's was in the AMA's best interest and detailed why he thought downsizing the department even more would be a bad idea.

The AMA held its Interim Meeting in early November of 2008. On Thursday, November 20, 2008, Shaffer notified Lynch that he would be having knee replacement surgery on January 12, 2009, that he would be taking four to six weeks of leave as a result, and that he was setting up a claim for short-term disability benefits. The Thanksgiving holiday fell the following week. On the Sunday evening of the holiday weekend, November 30, Lynch sent Parenti a long email. He explained that he was now of the mind that the AMA should eliminate Shaffer's position and retain Friedman. Lynch also wrote, “The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact.” He also gave Parenti his “[a]pologies for this 11th hour change of heart.”

Lynch and AMA Human Resources Representative Harvey Daniels notified Shaffer on Thursday, December 4, 2008 that the AMA was letting him go. Shaffer's last day on the AMA payroll was January 4, 2009.

On February 2, 2009, after receiving a letter from counsel representing Shaffer, AMA's in-house counsel, Michael Katsuyama, met with Daniels and informed him of possible litigation. On February 3, Daniels typed up handwritten notes he had taken concerning earlier discussions with Lynch about eliminating Shaffer's position. Daniels dated the typed notes November 25, 2008 and shredded his original notes. The typed document states that the position was eliminated because Lynch could accommodate having the speech writing staff report directly to him, a layer of management would be eliminated, and there had been decreased demand on the speech writing staff. Lynch's calendar did not reflect a meeting with Daniels for November 25, though, and Lynch testified in his deposition that he recalled that he was still pondering which position to eliminate over Thanksgiving weekend and had not made a decision as of November 25.

Also during the first few days of February, Daniels told Lynch to prepare a memorandum for Lynch's upcoming meeting with in-house counsel Katsuyama and to describe in it his rationale for selecting Shaffer as the employee to let go. Lynch typed the memorandum on February 3 or 4, 2009, but he dated it November 21, 2008 and addressed it to Daniels. Lynch gave the memorandum to Katsuyama when they met.

Shaffer filed suit in federal court, and the district court granted summary judgment in the AMA's favor. In May 2009, because of the economic environment, the AMA ended its employment of approximately 100 additional employees, including Friedman.

II. ANALYSIS

Shaffer appeals the district court's grant of summary judgment against him on his claim that his termination violated the Family and Medical Leave Act. The FMLA guarantees employees twelve workweeks of leave for serious health conditions, including the knee surgery Shaffer had. See 29 U.S.C. § 2612(a)(1). The FMLA forbids an employer from interfering with an employee's right to take leave and return to his job and also from retaliating against an employee who claims benefits under the statute. 29 U.S.C. § 2615. We review the district court's grant of summary judgment in favor of the AMA de novo, viewing all facts and drawing all reasonable inferences in the light most favorable to Shaffer, the nonmoving party. See Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 992 (7th Cir.2010).

A. Waiver

It is not surprising that one of the pieces of evidence on which Shaffer relies is Lynch's November 30 email notifying Parenti that he had decided Shaffer was the employee to be let go. The AMA, however, maintains that we cannot consider this email. In support, it points us to the district court's statement that it was not considering any facts that were not contained in the parties' Rule 56.1 statements. That is certainly within a district court's prerogative to do. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir.2005) (“Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate ‘statement ... of any additional facts that require the denial of summary judgment.’ ”); Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002) (“[W]e have emphasized the importance of local rules and have consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment.”) (quotation omitted). But that general statement by the district court in no way supports the AMA's argument that we cannot consider the November 30 email in this case.

The district court's opinion makes clear that the November 30 email was not something it had refused to consider. In fact, it spent an entire five-sentence paragraph in the “Relevant Facts” section of its opinion detailing that very email. The paragraph begins by stating, “On November 30, 2008, the day before Parenti's deadline for making a final decision, Lynch sent an email to Parenti that detailed his ‘11th hour change of heart’ that ‘perhaps we should eliminate Bill Shaffer's position and keep Pete's for now....”, and it then spelled out much of the rest of the email.

And although the AMA argues that Shaffer failed to include the email in his Rule 56.1 statement, Shaffer discussed the email in paragraph 12 of his Statement of Additional Facts and also stated in that paragraph that a true and accurate copy of the email was attached as Appendix 6, which it was. Shaffer also specifically discussed the email on pages 4 and 5 of his Memorandum in Opposition to the American Medical Association's Motion for Summary Judgment, and pointed to the key passage he relied on, stating, “The email included the justification that ‘The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact.’ ” Shaffer further argued on page 10 of his Memorandum that the email did not mention the explanation asserted by the AMA as the reason for the termination decision during litigation, namely that Lynch could easily absorb Shaffer's responsibilities. Shaffer appropriately raised the November 30 email before the district court, the district court discussed it in its opinion, and there is no reason Shaffer cannot point to it on appeal now.

B. Viable Family and Medical Leave Act Claim

The AMA also argues that Shaffer did not establish one of the prerequisites for FMLA protection, that he worked more than 1,250 hours for the AMA in the previous year. See...