In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2890
M ARION G ORDON,
Plaintiff-Appellant,
v.
F EDE X F REIGHT, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-4065—Joe Billy McDade, Judge.
A RGUED JANUARY 9, 2012—D ECIDED M ARCH 22, 2012
Before F LAUM and K ANNE, Circuit Judges, and
C HANG , District Judge.
K ANNE, Circuit Judge. Marion Gordon suffered an on-
the-job injury at one of FedEx’s service centers on Octo-
ber 14, 2008. The following day, two FedEx managers
made the decision to terminate Gordon’s position as part
The Honorable Edmond E. Chang, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 11-2890
of a national reduction in force. Gordon was informed of
this decision upon her return from medical leave on
November 11, 2008. Following her termination, Gordon
filed a workers’ compensation claim on December 15,
2008. In July 2009, Gordon sued FedEx for terminating
her in retaliation for exercising her workers’ compensa-
tion rights. Finding no genuine issue of material fact,
the district court granted summary judgment in favor
of FedEx. We affirm.
I. B ACKGROUND
Gordon worked as an Over, Short, and Damaged
(“OS&D”) clerk at FedEx’s East Moline, Illinois, service
center from September 4, 2006, through her termination
on November 11, 2008. On October 14, 2008, Gordon
tripped and fell at the facility, injuring her wrist. She
reported her injury to FedEx regional manager, Jeff First.
A FedEx employee transported Gordon to the hospital,
where hospital staff diagnosed Gordon’s injury as a
“bruise” and discharged her with her arm in a sling.
Jeff Mallonee, manager of the East Moline facility,
picked Gordon up from the hospital to take her back to
the service center. According to Gordon’s deposition
testimony, Mallonee told her “you’re going to be off for
a long time.” Although Gordon agreed that she probably
would not be at work the next day, she told Mallonee
that she doubted she would be off a long time.
That same day, Mallonee directed Carolyn McDaniel, an
operations supervisor, to complete an accident report
on Gordon’s injury.
No. 11-2890 3
The following morning, Gordon called Mallonee at the
service center and informed him she would be seeking
additional treatment from her family doctor because
her wrist was not improving. That afternoon, Mallonee
met with First and FedEx managing director, Butch
Davis, to discuss downsizing at the East Moline center.
At the time, FedEx was implementing a nationwide
reduction in force which resulted in the elimination of
multiple positions across the country. Davis directed
First and Mallonee to develop a plan for eliminating
one full-time position in East Moline.
Three employees worked full-time at the East Moline
service center: two operations supervisors (McDaniel
and Jason Clark) and one OS&D clerk (Gordon). Mallonee
served as the service center manager at both the East
Moline and Bloomington facilities, which are approxi-
mately 120 miles apart. First and Mallonee decided it
was necessary to have two other supervisors at the
East Moline facility, which was open from 4:00 a.m. to
10:00 p.m., on days when Mallonee was absent. “[W]e
wanted to have a supervisor on site to open the facility
in the morning and to close the facility at night and, due
to the long hours the facility was open, one supervisor
could not perform both these tasks.” (First Decl. at 2.)
First and Mallonee believed McDaniel, who had
previously performed OS&D duties, could carry out
Gordon’s duties in conjunction with her supervisory
responsibilities. Accordingly, First and Mallonee deter-
mined that the OS&D clerk position was the most ap-
propriate position for elimination because this move
would preserve the number of supervisors at the facility.
4 No. 11-2890
Shortly after her injury, Gordon’s family doctor deter-
mined that her wrist was broken in two or three places
and required surgery. Thus, the decision to eliminate the
OS&D clerk position was not implemented until Gordon
returned from medical leave. When Gordon returned
to work on November 11, 2008, she met with Mallonee
and the human resources manager to discuss her ter-
mination, effective that day. Gordon’s duties were ab-
sorbed by McDaniel until McDaniel resigned in July
2009, at which time a former part-time employee took
over the OS&D duties.
Gordon filed her workers’ compensation claim on
December 15, 2008. She did not take any steps toward
filing a workers’ compensation claim prior to this date
and never discussed filing a workers’ compensation
claim with anyone at FedEx. On July 23, 2009, Gordon
filed suit for wrongful termination in state court,
alleging that FedEx retaliated against her because
she exercised her rights under the Illinois Workers’ Com-
pensation Act (“IWCA”).1 FedEx removed the case to
federal court. On July 20, 2011, the district court granted
summary judgment in favor of FedEx.
II. A NALYSIS
We review a district court’s grant of summary judg-
ment de novo, drawing all reasonable inferences and
1
Gordon’s complaint also alleged violations of the Family
and Medical Leave Act , 29 U.S.C. § 2601 et seq., but Gordon
does not contest summary judgment on these claims.
No. 11-2890 5
viewing all facts in favor of the non-moving party. Marr
v. Bank of Am., N.A., 662 F.3d 963, 966 (7th Cir. 2011).
Summary judgment is appropriate only if “there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). To survive summary judgment, the non-
moving party must establish some genuine issue for
trial such that a reasonable jury could return a verdict
in her favor. Makowski v. SmithAmundsen LLC, 662 F.3d
818, 822 (7th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
“Generally, an at-will employee may be discharged
for any reason or for no reason at all.” Roger v. Yellow
Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994). In Illinois,
however, it is unlawful to terminate an employee in
retaliation for exercising her rights under the IWCA. See
Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 878-79
(Ill. 1981) (citing Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill.
1978)). To maintain a claim for retaliatory discharge,
an employee must prove: “(1) his status as an employee
of the defendant before injury; (2) his exercise of a right
granted by the Workers’ Compensation Act; and (3) a
causal relationship between his discharge and the
exercise of his right.” Roger, 21 F.3d at 149. FedEx does
not dispute that it terminated Gordon’s employment
and that she was an employee before her injury. Thus,
the only issues are whether Gordon can establish that
she exercised a right guaranteed by the IWCA and that
a causal relationship exists between her exercise of
this right and her termination.
6 No. 11-2890
A. Exercise of a Right
Illinois law recognizes several ways in which an em-
ployee may exercise a right under the IWCA. First, an
employee may file a workers’ compensation claim. See
Kelsay, 384 N.E.2d at 356. Here, although Gordon eventu-
ally filed a workers’ compensation claim, and thus exer-
cised a right under the IWCA, she did not file her claim
prior to her termination. Therefore, despite deposition
testimony to the contrary, the filing of her claim could
not have been the cause of her termination and this ex-
ercise of a right does not logically support her retalia-
tory discharge cause of action.
But even if there has been no filing of a claim,
Illinois courts recognize that the limited tort of retalia-
tory discharge may apply where a plaintiff is preemp-
tively fired to prevent such a filing. See Richardson v. Ill.
Bell Tel. Co., 510 N.E.2d 134, 136-37 (Ill. App. Ct. 1987).
“Factual support that the employer was informed or in
some way found out about the plaintiff’s intent to
pursue relief under the Act is essential to a retaliatory
discharge action.” Roger, 21 F.3d at 149-50. The
district court held that Gordon did not meet this
burden because, at the time FedEx made the decision
to terminate Gordon, no one knew the extent of her
injuries and Gordon expected to be back to work within
a day or two. In addition, Gordon never expressed an
intent to file a workers’ compensation claim and had
not filed one previously. Although the district court
relied on these facts in granting summary judgment in
favor of FedEx, we need not address this issue further
No. 11-2890 7
because Gordon’s claim clearly satisfies a third approach
recognized by Illinois courts.
Under this third approach, an employee exercises a
right under the IWCA merely by requesting and seeking
medical attention. See Hinthorn v. Roland’s of Blooming-
ton, Inc., 519 N.E.2d 909 (Ill. 1988). In Hinthorn, the
Illinois Supreme Court held that “the overriding pur-
pose of the [IWCA] is to protect injured employees by
ensuring the availability of medical treatment, by
shifting the financial burden of such treatment to the
employer.” Id. at 913. “Requesting and seeking medical
attention . . . is only the crucial first step in exercising
rights under the Workers’ Compensation Act.” Id. Thus,
an employee who was told to seek other employment
after she informed the vice president of the company of
her back injury and intent to seek medical attention had
a claim for retaliatory discharge. Id. at 910-13.
After Gordon sustained her injury, she reported to
First and requested to go to the hospital. The following
day, Gordon called the service center and informed
Mallonee that she would be seeking additional medical
attention from her family doctor. In light of these facts,
First and Mallonee were surely aware that Gordon
was actively requesting and seeking medical attention.
Under Hinthorn, Gordon has met her burden of demon-
strating the exercise of a right under the IWCA. Accord-
ingly, we must determine whether Gordon can establish
a causal relationship between her protected activity
and termination.
8 No. 11-2890
B. Causal Relationship
In resolving retaliatory discharge claims, Illinois does
not apply the McDonnell Douglas burden-shifting frame-
work commonly applied in federal retaliation cases. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630-31 (7th
Cir. 2011). Instead, to establish a causal relationship,
Gordon “must affirmatively show that the discharge
was primarily in retaliation for [her] exercise of a
protected right.” Roger, 21 F.3d at 149. To do so, Gordon
must “proffer[] sufficient evidence from which a rea-
sonable jury could infer that the employer was
improperly motivated.” Id. Only after Gordon has met
this burden is FedEx required to provide a legitimate
reason for its decision to terminate her. See id. “[T]he
ultimate issue to be decided is the employer’s motive
in discharging the employee.” Hartlein v. Ill. Power Co.,
601 N.E.2d 720, 730 (Ill. 1992).
Gordon puts forth the following evidence for finding
a causal link between her termination and her right to
seek medical attention: (1) the plan prior to Gordon’s
injury was to eliminate a supervisor position; (2) the day
after her injury, First and Mallonee changed the plan to
eliminate Gordon’s position instead; and (3) despite
“eliminating” Gordon’s position, her duties were passed
on to a supervisor and later to a part-time employee
who took over Gordon’s prior position. Gordon asserts
that we should also consider the temporal proximity of
the events in question.
Gordon’s assertion that, prior to her injury, the plan
was to eliminate a supervisor position is based on a
No. 11-2890 9
rumor she heard from McDaniel. McDaniel acknowl-
edges that she heard this rumor from someone outside
the East Moline facility and she could not remember
who gave her the information. She further stated in her
deposition that “I don’t know that they knew that for
a fact. They just told me that that’s what they were
told.” (McDaniel Dep. at 28.) FedEx argues that this
alleged “rumor” is inadmissible hearsay, and we agree.
Under the Federal Rules of Evidence, hearsay is defined
as an out-of-court statement offered by a party “to
prove the truth of the matter asserted.” Fed. R. Evid.
801(c)(2). Such statements, unless they satisfy one of
the many exceptions to the rule, are inadmissible at
trial and may not be used to create a genuine issue of
material fact at the summary judgment stage. See Fed. R.
Evid. 802; Carlisle v. Deere & Co., 576 F.3d 649, 655 (7th
Cir. 2009). Here, because the rumor is being offered for
the truth of the matter asserted and does not meet one
of the hearsay exceptions, it is inadmissible. Accordingly,
Gordon cannot rely on this evidence in arguing that
the original plan was to terminate a supervisor posi-
tion and that this plan changed following her injury.
Gordon’s strongest argument is that a jury could infer
an improper motive given the short time span between
her injury and FedEx’s decision to eliminate her posi-
tion. Temporal proximity often serves as an “important
evidentiary ally of the plaintiff.” Davis v. Time Warner
Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011).
But temporal proximity alone is generally not enough
to create a genuine issue of material fact. See Silverman v.
Bd. of Educ. of Chicago, 637 F.3d 729, 736 (7th Cir. 2011);
10 No. 11-2890
Roger, 21 F.3d at 149 (“The causality requirement calls
for more than a sequential connection.”). In this case,
Gordon fell and sought medical treatment just one day
prior to First and Mallonee’s decision to eliminate her
position. This fact is certainly favorable to Gordon’s
case but, on its own, is not enough for a jury to infer
that FedEx was improperly motivated.
Gordon’s final allegation of improper motivation rests
on the fact that her OS&D duties were not eliminated
but absorbed by another employee. Gordon likens her
case to mini-reduction-in-force cases, which require a
plaintiff to demonstrate that “(1) she is a member of
a protected class, (2) she was performing her job satis-
factorily, (3) she suffered a materially adverse employ-
ment action, and (4) her job duties were absorbed by
employees who were not members of her protected class.”
Johal v. Little Lady Foods, Inc., 434 F.3d 943, 946 (7th
Cir. 2006); accord Petts v. Rockledge Furniture LLC, 534
F.3d 715, 725 (7th Cir. 2008). The burden then shifts to
the employer to provide legitimate, nondiscriminatory
reasons for its actions, and the plaintiff may attempt to
show that such reasons are pretextual. Johal, 434 F.3d
at 946. Gordon acknowledges that the burden-shifting
framework applied in mini-reduction-in-force cases
does not apply here, but believes such cases may be
instructive.
But even in light of such cases, FedEx has presented
legitimate, nondiscriminatory reasons for its actions. It
is undisputed that FedEx was implementing staff re-
ductions nationwide throughout its facilities. At the
No. 11-2890 11
East Moline facility, FedEx management had to
eliminate a full-time position. FedEx never stated that
it eliminated Gordon’s position because her job duties
were no longer necessary; rather, FedEx had to
eliminate an employee position as a cost-cutting mea-
sure. Not wanting to reduce the number of super-
visors at the facility, and believing McDaniel could
handle OS&D duties in conjunction with her own re-
sponsibilities, FedEx eliminated the only full-time non-
supervisory position, which happened to be Gordon’s.
FedEx has presented a “valid basis, which is not
pretextual, for discharging [Gordon].” Hartlein, 601
N.E.2d at 728. Under Illinois law, this is enough to
defeat Gordon’s claim. Accordingly, the district court
did not err in finding that Gordon did not present
a genuine issue of material fact for trial.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
3-22-12