In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2572
VALA BORCKY,
Plaintiff-Appellant,
v.
MAYTAG CORPORATION, doing business
as Maytag, Herrin Laundry Products,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 C 4040--J. Phil Gilbert, Judge.
Argued January 25, 2001--Decided April 26, 2001
Before COFFEY, RIPPLE and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. Vala Borcky brought this
action against her former employer, Maytag
Corporation ("Maytag"). She alleged that Maytag
discharged her in retaliation for exercising her
rights under the Illinois Workers’ Compensation
Act. The district court granted Maytag’s motion
for summary judgment, and Ms. Borcky appealed.
For the reasons set forth in the following
opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts/1
Ms. Borcky was an employee of Maytag from
October 2, 1979, until January 5, 1998. Her
employment relationship with Maytag was governed
by the Collective Bargaining Agreement ("CBA")
between Maytag and the International Association
of Machinists and Aerospace Workers.
The CBA contained an absentee policy that
allowed Maytag, under certain circumstances, to
assess points against union employees who were
absent from work. The policy specifically
provided that, when an employee was absent due to
personal illness and provided an acceptable
medical excuse, the employee would be assessed .5
points for each occurrence./2 If the employee
was absent and failed to provide an acceptable
medical excuse, the employee would be assessed 2
points for each absence. No points were assessed
for medical absences due to a reported
occupational injury. An employee became subject
to progressive discipline when he or she reached
6 points within a six-month period. According to
the progressive discipline schedule, any employee
who accumulated 15 points within a six-month
period would be discharged.
The parties dispute the number of points that
Ms. Borcky accrued in the six months preceding
December 1997. However, Ms. Borcky seems to agree
that she was properly assessed at least 1.5
points for absences in October and November
1997./3 In addition to her absences in October
and November, Ms. Borcky was absent from December
1 through December 5, 1997; she was not assessed
any points, however, because the absences were
due to an earlier, work-related injury. Ms.
Borcky was again absent from work on December 8
through December 12 and December 15 through
December 16, 1997, due to bronchitis.
Maytag also mistakenly believed that Ms. Borcky
was absent on December 17 through 19 and that she
had not called in to report her absences.
Consequently, Maytag terminated her employment
pursuant to CBA sec. 13.3f, which treats two
consecutive days of "No Report" absences as a
"Quit without notice." R.21, Ex.A at 19. Upon
receiving her termination letter, Ms. Borcky
brought the error to Maytag’s attention, and she
was reinstated.
Shortly thereafter, Ms. Borcky provided Maytag
with a doctor’s note to cover her absences from
December 8 through 16. According to the note, Ms.
Borcky contacted Dr. Mark Smith’s office on
December 8, 1997, "saying she had [b]ronchitis
and wanted antibiotics refilled[.] She was not
seen in the office[.]" R.21, Ex.B. Maytag found
the excuse unacceptable because the doctor’s note
did not state that Ms. Borcky was unable to work
during her absence and because it did not
corroborate Ms. Borcky’s contention that she did,
in fact, have bronchitis. Consequently, Ms.
Borcky was assessed 14 points (2 points per day)
for her December absences. Combined with her
points from October and November, Ms. Borcky
exceeded 15 points; as a result, Ms. Borcky was
discharged on January 5, 1998./4
Following her discharge, Ms. Borcky again
provided Maytag with a note from her doctor. This
second note from Dr. Smith, dated January 6,
1998, stated:
[Ms. Borcky] was seen in [our] office 11/13/97
and 12/4/97 and diagnosed and treated for
bronchitis. She called the office 12/8/97 and
stated she had a reoccurrence of [b]ronchitis.
Medications were called in. Based on her previous
and recent episodes of [b]ronchitis, I have no
reason to doubt that she was ill 12-8 - 12-16-97.
R.21, Ex.C. However, like the first excuse, the
note did not state that Dr. Smith had examined
Ms. Borcky or state conclusively that Ms. Borcky
was unable to work during her absence. Maytag’s
termination decision, therefore, remained
unchanged.
B. District Court Proceedings
Ms. Borcky brought this cause of action in the
Circuit Court of Williamson County, Illinois, on
January 6, 1999. In her original complaint, Ms.
Borcky alleged that Maytag discharged her in
retaliation for exercising her rights under the
Illinois Workers’ Compensation Act in violation
of 820 ILCS 305/4(h), that it had violated the
CBA, and that it intentionally had caused her
emotional distress. Based on diversity of
citizenship and, with respect to count two,
federal question jurisdiction, Maytag removed the
case to district court.
Maytag then filed its motion for summary
judgment. Before a ruling on the motion, however,
counts two and three of Ms. Borcky’s complaint
were voluntarily dismissed. Consequently, the
only remaining count before the district court
was Ms. Borcky’s retaliatory discharge claim.
With respect to that claim, Maytag maintained
that Ms. Borcky could not establish a necessary
element of her cause of action: a causal
connection between her workers’ compensation
claim and her termination. According to Maytag,
the only allegation in Ms. Borcky’s complaint to
support this element was that she unjustifiably
was assessed points for her December absences.
However, explained Maytag, it had followed its
usual procedure under the CBA for requiring a
valid physician’s note for any absences. Maytag
asserted that the doctor’s notes that Ms. Borcky
presented upon her return to work in late
December and upon her termination in January did
not indicate that she was unable to work from
December 8 through December 16, 1997. Because Ms.
Borcky was unable to show that she was
erroneously assessed 14 points for these days,
Maytag contended, she accrued over 15 points
within a six-month period and was, therefore,
subject to termination under the CBA.
In her opposition memorandum and affidavit, Ms.
Borcky argued that Maytag’s reason for
terminating her employment should not be
believed. She pointed to alleged errors in
Maytag’s attendance records as well as Maytag’s
prior, but rescinded, termination of her
employment as evidence of a retaliatory motive.
Ms. Borcky also maintained that her absences in
December should have been excused because her
doctor’s note of January 6, 1998, was sufficient
to meet her obligations under the CBA.
On February 10, 2000, the district court ordered
that the parties file a joint statement of
uncontested facts by May 19, 2000, pursuant to a
local rule. However, on May 17, 2000, before the
joint statement of facts was filed, the district
court granted Maytag’s motion for summary
judgment. The district court held that Ms. Borcky
was unable to prove that her discharge was
causally related to her filing a claim under the
Illinois Workers’ Compensation Act. The district
court stated that, even construing the evidence
in a light most favorable to Ms. Borcky, she had
provided nothing except her own unfounded
allegations in support of her claim that Maytag
had discharged her in retaliation for her
workers’ compensation claim. The district court
therefore granted Maytag’s motion for summary
judgment. This appeal followed.
II
DISCUSSION
A.
We review de novo the district court’s grant of
summary judgment to Maytag. See Silk v. City of
Chicago, 194 F.3d 788, 798 (7th Cir. 1999). In
evaluating the district court’s decision, we
"must construe all facts in the light most
favorable to the non-moving party and draw all
reasonable and justifiable inferences in favor of
that party." Bellaver v. Quanex Corp., 200 F.3d
485, 491-92 (7th Cir. 2000). Summary judgment is
proper if the record shows "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." Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
However, "[t]he mere existence of some alleged
factual dispute will not defeat an otherwise
properly supported motion for summary judgment,"
Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th
Cir. 1999); only a "genuine" issue of "material"
fact precludes summary judgment, Fed. R. Civ. P.
56(c). "Factual disputes are ’material’ only when
they ’might affect the outcome of the suit under
the governing law.’" Oest v. Illinois Dep’t of
Corrections, 240 F.3d 605, 610 (7th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Furthermore, "[f]actual
disputes are ’genuine’ only ’if the evidence is
such that a reasonable jury could return a
verdict for the [nonmovant].’" Id. (quoting
Liberty Lobby, 477 U.S. at 248). Speculation will
not suffice. See Liu, 191 F.3d at 796 ("A party
must present more than mere speculation or
conjecture to defeat a summary judgment
motion."); Amadio v. Ford Motor Co., 238 F.3d
919, 927 (7th Cir. 2001); Gorbitz v. Corvilla,
Inc., 196 F.3d 879, 882 (7th Cir. 1999) (stating
that a plaintiff’s speculation is "not a
sufficient defense to a summary judgment
motion"). With these principles in mind, we turn
to Ms. Borcky’s claim.
The Illinois Workers’ Compensation Act makes it
unlawful for an employer to retaliate against
employees for exercising their rights or remedies
granted by the Act. See 820 ILCS 305/4(h).
Illinois has recognized an independent cause of
action for retaliatory discharge for employees
whose employment is terminated as a result of
their exercise of rights under the statute,
including the right to file a workers’
compensation claim. See Kelsay v. Motorola, Inc.,
384 N.E.2d 353, 357 (Ill. 1978). To recover
damages for this tort, "an employee must prove:
(1) that [she] was an employee before the injury;
(2) that [she] exercised a right granted by [the
Illinois] Workers’ Compensation Act; and (3) that
[she] was discharged and that the discharge was
causally related to [her] filing a claim under
the Workers’ Compensation Act." Clemons v.
Mechanical Devices Co., 704 N.E.2d 403, 406 (Ill.
1998)./5
Here, the district court determined that Ms.
Borcky had provided no evidence, except for her
own unsupported allegations and conclusions,
linking her discharge to her workers’
compensation claim. Ms. Borcky, however,
maintains that there are issues of fact
concerning Maytag’s motivation in terminating her
employment. She points to three facts that, she
claims, if taken as true, would preclude summary
judgment: (1) that Maytag assessed points for
absences related to her occupational injury; (2)
that Maytag initially terminated her employment
on December 23, 1997; and (3) that Maytag
rejected her doctor’s excuse as inadequate. We
address each of these in turn.
Ms. Borcky first contends that Maytag’s
assessment of points for absences related to her
occupational injury evidences Maytag’s real
motive for her discharge: her workers’
compensation claim. Specifically, in her
affidavit in opposition to Maytag’s motion for
summary judgment, Ms. Borcky identifies five
absences in September through November of 1997
that, she claims, resulted from her occupational
injury and for which Maytag assessed her points.
We do not believe that these errors suggest a
retaliatory motive on Maytag’s part. Ms. Borcky
had twenty-eight absences during the months of
September through December 1997 (excluding
vacations and holidays). During this time frame,
there were ten absences attributed to Ms.
Borcky’s occupational injury and for which Maytag
did not assess points. Therefore, there is no
basis from which a factfinder could conclude that
Maytag was unwilling to excuse Ms. Borcky’s
properly documented absences due to her
occupational injury. Additionally, even if these
absences and the resulting points were omitted
from her point total, Ms. Borcky still would have
reached 15 points--the level at which Maytag
could terminate employment under the CBA.
Consequently, any dispute regarding Maytag’s
assessment of points for these absences is not
probative of the causation issue, is therefore
not material, and does not preclude summary
judgment.
Ms. Borcky also points to Maytag’s termination
of her employment on December 23 as evidence of
its unlawful motive. Again, we perceive nothing
in Maytag’s application of the provisions of the
CBA, albeit mistaken, that suggests Maytag’s
motivation for terminating Ms. Borcky was in
retaliation for her filing a workers’
compensation complaint. When Ms. Borcky brought
the mistake to Maytag’s attention, she was
immediately reinstated and given the opportunity
to provide a physician’s excuse for her absences
on December 8 through 16, 1997. The fact of Ms.
Borcky’s prior mistaken discharge simply is not
probative of, or "material" to, the issue of
causation.
Finally, Ms. Borcky argues that Maytag’s refusal
to accept her physician’s note suggests an
improper motive in Maytag’s decision to terminate
her employment. In her affidavit in opposition to
Maytag’s motion for summary judgment, Ms. Borcky
states that she "ha[s] reason to believe that
other employees have presented doctor’s slips
which are like or similar to that of which [she]
presented on 12/23/97 and which were found
acceptable." R.24, Ex.B at 2-3. However, "[a]
party must present more than mere speculation or
conjecture to defeat a summary judgment motion."
Liu, 191 F.3d at 796. Ms. Borcky has not come
forward with anything, beyond her own surmises,
to show that Maytag has accepted doctor’s slips
similar to the ones she presented to Maytag on
December 23, 1997, and January 6, 1998. In the
absence of such evidence, we shall not impute a
retaliatory motive to Maytag for requiring a
physician to examine an employee and corroborate
the employee’s need to be absent. Ms. Borcky’s
speculation that Maytag applied its standard
inconsistently, without more, does not create a
"genuine" issue of material fact that precludes
summary judgment./6
B.
Ms. Borcky also maintains that the district
court’s grant of summary judgment was premature
because the parties had not submitted a joint
statement of undisputed facts, as required by a
local rule, when the court ruled on Maytag’s
motion for summary judgment. We review a district
court’s application of a local rule for an abuse
of discretion. See Little v. Cox’s Supermarkets,
71 F.3d 637, 640 (7th Cir. 1995) ("[I]t is clear
that the decision whether to apply the rule
strictly or to overlook any transgression is one
left to the district court’s discretion.").
Rule 7.1(h) for the Southern District of
Illinois states:
In any case in which all parties are represented
by counsel, any motion packet filed pursuant to
Federal Rule of Civil Procedure 56 shall include
a separate, concise, joint statement signed by
all parties setting forth the uncontested
material facts. All material facts set forth in
the joint statement will be deemed admitted. Any
contested facts shall be set forth with
specificity and with reference to admissible
evidence in a separate concise statement. The
motion for summary judgment may be denied if the
movant fails to include the statement of material
facts in accordance with this Rule.
U.S. Dist. Ct., S.D. Ill., R. 7.1(h). Rule 7.1 is
an organizational tool for the district court to
identify quickly those facts that are agreed upon
and those that are not. It does not confer upon
the parties an absolute right to provide such a
statement to the court; indeed, its language
concerning the district court’s right to insist
upon such a statement is permissive: "The motion
may be denied . . . ." Id. (emphasis added).
Here, although the court ordered the parties to
submit such a statement, it apparently determined
that it could rule on the motion for summary
judgment in the absence of this submission. The
materials offered in support and in opposition to
the motion for summary judgment were not
voluminous, and the issues were not complex. Ms.
Borcky can point to no specific unfairness due to
the district court’s decision to act without
further submissions from the parties. Moreover,
there is no suggestion in the record that the
district court mistook disputed facts for
undisputed facts or construed facts in Maytag’s
favor. By contrast, the district court stated
that it construed the facts in the light most
favorable to Ms. Borcky, but simply concluded
that Ms. Borcky failed to come forward with
evidence that created a genuine issue of material
fact. In the absence of some evidence that the
district court was confused by the submissions or
misapplied the standard, we shall not second-
guess its decision to proceed without a Rule 7.1
statement.
Conclusion
Ms. Borcky has not identified a genuine issue of
material fact that precludes summary judgment.
Similarly, she has not established that the
district court abused its discretion in ruling on
the motion for summary judgment in the absence of
a statement of undisputed facts. The judgment of
the district court, therefore, is affirmed.
AFFIRMED
/1 Because the district court granted summary
judgment to Maytag, we must construe the record
in the light most favorable to Ms. Borcky. See
Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir.
2001) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)).
/2 It is unclear from the parties’ briefs whether
"occurrence" refers to each day of absence or to
each incidence of illness regardless of the
number of consecutive days of absence. The
language of the CBA suggests the latter
interpretation is the correct one. See R.21, Ex.A
at 17. Furthermore, because we must view the
facts in the light most favorable to Ms. Borcky,
and because this interpretation favors Ms.
Borcky, we employ this definition.
/3 It is not clear from the record exactly how many
points Ms. Borcky believes that she should have
been assessed in the months of October and
November. The information supplied by Ms. Borcky
to Maytag by way of discovery responses differed
from her deposition testimony, which also
differed from her affidavit in opposition to
Maytag’s motion for summary judgment. In response
to a discovery request, Ms. Borcky identified
four absences in November that were unrelated to
her occupational injury and for which she had a
doctor’s excuse (November 13-14 and November 18-
19). Assessing .5 points per occurrence, Ms.
Borcky should have been assessed at least one
point in November. See R.21, Ex.G. However, in
her deposition, Ms. Borcky first stated that
"every single point" she was assessed in the six
months prior to her termination was
inappropriate. R.21, Ex.E at 47. She then
immediately corrected herself and stated, "Well,
there are three and a half I earned." Id.
However, with the exception of .5 points that
were assessed for an absence on October 6, 1997,
Ms. Borcky could not identify with any precision
how she arrived at her figure. See id. at 47-50.
Later, in her affidavit in opposition to Maytag’s
motion for summary judgment, Ms. Borcky took
issue with the calendar of absences presented by
Maytag in support of its motion. Specifically,
Ms. Borcky stated that September 5, October 9, 20
and 28, and November 2, 1997, were all absences
related to her occupational injury and for which
she should not have been assessed any points. In
that same affidavit, however, she did not contest
the points assessed for October 6 (.5), November
13 (.5) or November 18 (2), for a total of 3
points. Therefore, reading all of Ms. Borcky’s
submissions in the light most favorable to her
position, she was properly assessed at least 1.5
points, .5 points for the October 6 absence and 1
point (.5 per occurrence) for her November
absences.
/4 Ms. Borcky was given the option of seeking a
retroactive leave of absence that, according to
the CBA, would have completely excused her
absences. She did not pursue this option.
/5 Under Illinois law, the burden of proving the
elements of the cause of action remains with the
plaintiff at all times. See Clemons, 704 N.E.2d
at 406. The employer may come forward with a
reason for the discharge, but it is not required
to do so. See id. However, there is some question
whether the burden-shifting method set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), should apply to state discrimination and
retaliation causes of action that are litigated
in federal court. See Bourbon v. Kmart Corp., 223
F.3d 469, 473 (7th Cir. 2000). For the reasons
set forth later in this opinion, we need not
choose between these methods in the present
action.
/6 The same result obtains if we were to apply the
McDonnell Douglas analysis. As referenced
earlier, a recent decision of this court applied
the McDonnell Douglas burden-shifting test to a
state retaliatory discharge case brought in
federal court. See Bourbon, 223 F.3d at 473.
Under McDonnell Douglas, once a plaintiff
establishes a prima facie case of discrimination,
the defendant has the burden of coming forward
with a legitimate, non-discriminatory reason for
discharging the plaintiff. See id. at 473; see
also McDonnell Douglas, 411 U.S. at 802. If the
defendant meets this burden, the plaintiff must
show that the legitimate, non-discriminatory
reason asserted by the employer is pretextual.
See Bourbon, 223 F.3d at 473; see also McDonnell
Douglas, 411 U.S. at 804.
Here, we need not choose between the available
analytical constructs (leaving the burden of
proof on the plaintiff or shifting it between the
parties) because Ms. Borcky’s claim fails under
either method. Even if Ms. Borcky were able to
make a prima facie case of retaliation, she has
not come forward with any evidence that Maytag’s
legitimate, non-discriminatory reason (reaching
15 points under the CBA) was pretextual.