Virginia Hunt v. Davita, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2509
VIRGINIA HUNT,
Plaintiff-Appellant,
v.
DAVITA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-cv-00602—G. Patrick Murphy, Judge.
ARGUED JANUARY 13, 2012—DECIDED MAY 4, 2012
Before POSNER, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Virginia Hunt had worked
for defendant DaVita, Inc. for nineteen years when she
had a heart attack requiring bypass surgery and went on
medical leave. While on leave, she also received treat-
ment for carpal tunnel syndrome. After six months of
leave, DaVita terminated her employment pursuant to
its established leave policy. DaVita told Hunt that she
was eligible for re-hire to her position once she was

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2 No. 11-2509
medically cleared to work again. Hunt then filed a law-
suit in state court alleging that she was fired in retalia-
tion for her intention to file a workers’ compensation
claim related to her carpal tunnel syndrome. DaVita
removed the lawsuit to the United States District Court,
which granted summary judgment for DaVita on the
retaliation claims. We affirm. Hunt has not offered any
evidence that the relevant decision-maker even knew
of her potential workers’ compensation claim or was
influenced by anyone who did know, so Hunt cannot
show an act in retaliation.
Hunt first raises a jurisdictional issue, arguing that
the district court should have remanded the case to
state court for failure to satisfy the amount-in-contro-
versy requirement for federal diversity jurisdiction
under 28 U.S.C. § 1332. After the removal, Hunt disa-
vowed and offered to return any damages that
might be awarded in excess of $75,000. The district
court did not err when it found, consistent with LM Ins.
Corp. v. Spaulding Enterprises Inc., 533 F.3d 542, 547 (7th
Cir. 2008), that Hunt had not shown it was “legally
certain” that the amount in controversy would not exceed
$75,000. Hunt sought punitive damages in her complaint,
and even a modest punitive-to-compensatory damages
ratio of two or three to one could have led to an award in
excess of $75,000. In addition, as the district court cor-
rectly noted, Hunt’s post-removal disclaimer of damages
exceeding $75,000 could not defeat federal jurisdiction
after a proper removal based on the complaint. See
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.
283, 292 (1938) (post-removal amendment to complaint

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No. 11-2509 3
or stipulation limiting damages did not require remand);
Back Doctors Ltd. v. Metropolitan Property and Casualty
Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011) (post-removal
disclaimer limiting damages did not permit remand);
Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424,
429 (7th Cir. 1997) (post-removal stipulation to limit
damages did not defeat diversity jurisdiction); In re
Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (granting
writ of mandamus to rescind remand order that had
been issued based on post-removal stipulation to limit
damages). The district court had subject matter jurisdic-
tion here.
Turning to the merits, the relevant facts are straight-
forward and undisputed, and the district court explained
them carefully. Hunt began her leave on August 17,
2009, and shortly after that, she acknowledged receipt of
a notice concerning DaVita’s leave policies. She was
given three months of leave under DaVita’s Family Medi-
cal Leave Act policy, and then another three months
of leave under DaVita’s separate Non-Work-Related
Medical Leave of Absence policy. After the total of six
months had passed, Hunt was still not cleared by her
doctor to return to work and did not return. Pursuant to
an established company policy, DaVita notified her that
her employment was terminated effective February 28,
2010. Hunt’s doctor cleared her to return to work later,
on May 5, 2010. During this entire time a temporary
worker filled in for Hunt at DaVita, but the worker
was not permanently assigned to Hunt’s position until
August 21, 2010 — a full year after Hunt first went on
leave.

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4 No. 11-2509
While Hunt was on leave recovering from her heart
surgery, she also sought treatment for carpal
tunnel syndrome. She filed a workers’ compensation
claim based on that condition, but not until March 19,
2010 — several weeks after DaVita had terminated her.
Hunt testified that she had previously told her
supervisor, Beth Thompson, about her belief that the
numbness in her hands was work-related. There is no
more specific evidence in the record suggesting that
Thompson actually knew of Hunt’s intention to file a
claim. Most important, though, there is no evidence that
Thompson had anything to do with Hunt’s termination.
The termination was effected by Kathy Velasquez, a
senior disability specialist who worked in a different
DaVita office in Denver. Velasquez testified that she
never met or spoke with Hunt, did not consult with
anyone else at DaVita about the termination, and made
the termination decision based entirely on the fact
that Hunt had exhausted all of the leave allowed
under DaVita’s established policies. Hunt did not offer
evidence contradicting this testimony, asserting only
her belief that there was some retaliatory intent. Hunt
also conceded that DaVita applied the same leave
policy, without exception, to terminate more than three
hundred other eligible employees who ran out of leave
between January 1, 2009 and March 3, 2010, regardless
of whether leave was the result of a work-related condi-
tion or not.
We review a grant of summary judgment de novo.
Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d 697,
705 (7th Cir. 2011). Hunt is an “at-will” employee under

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No. 11-2509 5
Illinois law, so DaVita could have fired her for a good
reason, no reason, or a bad reason, as long as the
reason was not prohibited by law. For an at-will
employee, failure to return to work after medical leave
expires is not a reason prohibited by Illinois law.
Hartlein v. Illinois Power Co., 601 N.E.2d 720, 728 (Ill.
1992) (“Illinois law does not obligate an employer to
retain an at-will employee who is medically unable to
return to his assigned position”). An employer may not,
however, fire an employee to retaliate against her for
her pursuit (or anticipated pursuit) of a workers’ compen-
sation claim. Id.; Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357
(Ill. 1978). To defeat DaVita’s motion for summary judg-
ment, Hunt needed to raise a genuine issue of material
fact as to whether decision-maker Velasquez intended
to retaliate against her for considering such a claim. But
logic dictates that any inference of retaliatory intent
must be based on the alleged retaliator’s knowledge
of the action allegedly retaliated for. E.g., Hiatt v.
Rockwell International Corp., 26 F.3d 761, 769 (7th Cir. 1994)
(“Evidence that those responsible for an employee’s
termination knew that he intended to file, or, as in
this case had filed, a workers’ compensation claim is
essential to a retaliatory discharge action under Illinois
law.”), citing Marin v. American Meat Packing Co., 562
N.E.2d 282, 286 (Ill. App. 1990). Hunt offers speculation
but no actual evidence suggesting that Velasquez or
anyone else involved in the decision even knew of her
intended workers’ compensation claim. Without such
evidence, Hunt’s retaliation claim fails as a matter of law.
To avoid the consequences of Velasquez’s lack of knowl-
edge about any workers’ compensation claim, Hunt

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6 No. 11-2509
argues that DaVita’s leave policy is retaliatory on its face.
DaVita’s policy does not distinguish between employees
on leave because of compensable work-related illnesses
and injuries and employees on leave for other medical
reasons. Hunt has not explained how a policy that is
applied neutrally and without exception to hundreds
of employees each year — and in this case without any
knowledge of the circumstances of the leave taken or
whether the leave stemmed from an injury or illness
that might be compensable — can be described as retali-
atory. It is well established that neutrally-applied leave
policies of this sort are permissible. See Dotson v. BRP
U.S. Inc., 520 F.3d 703, 707 (7th Cir. 2008) (“an employer
may fire an employee for excess absenteeism, even if
the absenteeism is caused by a compensable injury”),
quoting Hartlein, 601 N.E.2d at 728. This court has ap-
proved policies stricter than DaVita’s. See, e.g., Dotson,
520 F.3d at 707-08 (automatic termination after exhaus-
tion of minimum twelve-week FMLA leave).
Because employers are entitled to terminate at-will
employees who do not return to work after their leave
expires, it cannot be unlawful retaliation to terminate
uniformly any employees because they did not return to
work after their leave expired. Hunt cannot make up
for the lack of evidence of individual retaliatory intent
by alleging (again without evidence) that DaVita’s
entire leave policy was adopted to retaliate against em-
ployees who take leave. Hunt’s only suggested alterna-
tive to DaVita’s current leave policy would be a policy
of indefinite retention, extending leave for as long as
medically necessary. There is no legal basis here to

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No. 11-2509 7
compel DaVita to adopt such a policy; in fact, the com-
pany’s policy already seems to be more liberal than
required by the Family and Medical Leave Act. Without
evidence “that the termination was motivated by an
unlawful intent to retaliate against the employee for
exercising a statutory right to workers’ compensation
benefits,” Dotson, 520 F.3d at 707, plaintiff Hunt has
failed to raise a genuine issue of material fact. Summary
judgment was properly entered in favor of DaVita.
Two other matters raised by the parties here warrant
brief discussion. First, Hunt argues that the district court
abused its discretion by refusing to strike the deposi-
tion testimony of decision-maker Velasquez based on
objectionable conduct by DaVita’s counsel during the
deposition. During the deposition, DaVita’s counsel
conferred privately with the witness about exhibits as
they were presented, allegedly pointing out policy lan-
guage that plaintiff’s counsel properly asked the witness
herself to identify. Hunt further asserts that substan-
tive discussions of testimony occurred in private confer-
ences during breaks. DaVita’s counsel responded that
he was merely assisting and not suggesting testimony,
and he claims no memory of whether private conferences
occurred.
The conduct reflected in this record, at a minimum
pointing out passages of documents as they are intro-
duced to the witness, was not appropriate or profes-
sional. The fact-finding purpose of a deposition requires
testimony from the witness, not from counsel, and with-
out suggestions from counsel. Coaching and private

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8 No. 11-2509
Hunt did not file a timely objection to the magistrate 1
judge’s non-dispositive pretrial discovery order as required by
28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(a).
Such a failure to object ordinarily waives the right to object on
appeal. E.g., United States v. Hernandez-Rivas, 348 F.3d 595, 598
(7th Cir. 2003), quoting United States v. Brown, 79 F.3d 1499,
1503 (7th Cir. 1996); Video Views, Inc. v. Studio 21, Ltd., 797
F.2d 538, 539-40 (7th Cir. 1986). This waiver rule is not juris-
dictional, however, see Video Views, 797 F.2d at 540, and so is
subject to a limited equitable exception when waiver would
otherwise defeat the “ends of justice,” Brown, 79 F.3d at 1504,
and may itself be waived by the prevailing party. DaVita
waived the waiver here, so we address the issue on its merits.
conferences (on issues other than privilege) that would
be inappropriate during trial testimony are not
excused during a deposition merely because the judge
is not in the room.1
District courts have broad discretion in supervising
discovery, including deciding whether and how to
sanction such misconduct, for they are much closer to
the management of the case and the host of intangible
and equitable factors that may be relevant in exercising
such discretion. E.g., Park v. City of Chicago, 297 F.3d
606, 614 (7th Cir. 2002) (finding no abuse of discretion
in choice not to impose sanction for discovery failure);
Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 670-71
(7th Cir. 1996) (finding no abuse of discretion in choice
to impose sanction for discovery failure). We defer to
district courts’ contemporaneous efforts to police dis-
covery, reviewing only for abuse of discretion, of

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No. 11-2509 9
Hunt also complains that the district court allowed DaVita to 2
file a reply brief. Southern District of Illinois Local Rule 7.1(c)(2)
allows for such briefs “in exceptional circumstances.” We
have repeatedly held that district courts are entitled to con-
siderable deference in the interpretation and application of
their local rules. E.g., Stevo v. Frasor, 662 F.3d 880, 886-87
(7th Cir. 2011); Harmon v. OKI Systems, 115 F.3d 477, 481 (7th
Cir. 1997). No abuse of discretion occurred here.
which there is no hint here. The magistrate judge deter-
mined that the conduct did not actually impede the
purpose of the deposition. He did not abuse his discre-
tion by refusing to strike the relevant testimony or to
apply other sanctions.2
Second, DaVita suggested in the conclusion of its ap-
pellate brief that Hunt’s arguments on appeal are so
frivolous that we should order her to show cause why
she should not be sanctioned. See Greviskes v. Univer-
sities Research Ass’n, Inc., 417 F.3d 752, 760-61 (7th Cir.
2005). Since 1994, Federal Rule of Appellate Procedure 38
has authorized such sanctions only after either “a sepa-
rately filed motion or notice from the court and a rea-
sonable opportunity to respond.” DaVita could have
filed such a motion but did not, choosing instead merely
to ask this court to launch the sanctions process. We
decline to do so. We see no need to take a step that
DaVita itself could have taken, albeit subject to the
caution that a groundless request for Rule 38 sanctions
may itself be sanctionable. See Meeks v. Jewel Cos., 845
F.2d 1421, 1422 (7th Cir. 1988) (denying sanctions
against appellant and declining to award appellate costs

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10 No. 11-2509
as modest sanction for frivolous request for sanctions);
see also Foy v. First National Bank of Elkhart, 868 F.2d
251, 258 (7th Cir. 1989) (awarding attorney fees
incurred in defending against a frivolous request for
sanctions). Also, there is certainly an equitable ele-
ment to sanctions issues. In view of the behavior of
DaVita’s counsel during the Velasquez deposition, we
would not be inclined to exercise our discretion to
impose sanctions on only one side of this lawsuit. In
any event, Hunt’s arguments on appeal were weak but
fell short of frivolous.
The judgment of the district court is AFFIRMED.
5-4-12

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