Hefti v. Brunk Industries Inc

Filing 53

ORDER signed by Judge Rudolph T. Randa on 9/23/2015 DENYING 28 Defendant's Motion for Summary Judgment. Motions in limine due 10/30/2015; responses thereto due 11/6/2015. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES HEFTI,
Plaintiff,
-vs-

Case No. 14-C-729

BRUNK INDUSTRIES, Inc.,
Defendant.
DECISION AND ORDER
James Hefti alleges that Brunk Industries interfered with, and fired
him in retaliation for exercising, his rights under the Family Medical
Leave Act. Brunk moves for summary judgment. For the reasons that
follow, this motion is denied.
BACKGROUND
Brunk is a Wisconsin corporation located in Lake Geneva. Brunk
manufactures micro-precision component stampings, assemblies, and classcritical implantable devices for medical devices.
Starting on December 5, 2011 until he was fired on March 25, 2013,
Hefti worked for Brunk as a Tool and Die Designer in a department with
five or six other employees. His immediate supervisor was Paris Hay. The
department manager was Rick Eisel.

Hefti was responsible for designing and detailing stamping dies,
fixtures, gages and prototype tooling. Hefti would receive a work order to
design a stamping die, which would be used to make a customers’ part. He
would then design a 3D model and create 2D drawings for the tool room to
build to.
Since 2009, Brunk has granted approximately 197 FMLA leave
requests to its employees. Thirty-nine Brunk employees took FMLA leave
in 2013. In 2014, approximately 18% of Brunk’s employees took FMLA
leave of some sort. There have never been any FMLA-related lawsuits or
charges filed against Brunk, other than that filed by Hefti in the instant
case.
In early March, 2013, Hefti requested FMLA leave because his son
was suffering from various mental health issues and he needed to arrive
late or leave early to help drop off or pick up his son from school. Hefti
anticipated using FMLA leave just a couple of times per week, and only for
a couple of hours to take his son to or from school. When Hefti told Eisel
about his son’s health issues, Eisel told him that Brunk paid for Hefti’s
insurance and thus expected him to be at work. Later, when Hefti told
Eisel that he had handed in his FMLA paperwork, Eisel appeared
frustrated and aggravated.
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Hefti discussed his leave request with Brunk’s Human Resources
Administrator, Elizabeth Weber. Weber told Hefti that his son’s condition
was covered under the FMLA and that Hefti needed to have his son’s
doctor fill out the form and then return the form to her. Hefti returned the
completed form on or about March 22, 2013, three days before he was fired.
The stated reason for Hefti’s firing is that his communications with
co-workers were unprofessional and generally inappropriate. Eisel first
noticed this issue in the summer of 2012. Hefti’s co-worker, Jonathan
Dykstra, complained to Eisel on numerous occasions that Hefti was
agitating him. Dykstra complained that Hefti would tell co-workers what
they were doing wrong using an unprofessional and degrading tone of
voice, and instigate arguments with others as well. Around this time, Eisel
warned Hefti to “cool down” and act more professionally when interacting
with Dykstra. Hefti responded that he would never back down if he felt he
was defending himself.
On July 26, 2012, Hefti sent an e-mail to Josh Shull, telling him
“Get your butt in here on Sunday damn it … LOL … beaaach.” Later on the
same day, Hefti sent Shull another e-mail stating, “YOU BETTER AFTER

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WINNING THAT AWARD YAH HAY SHACKER.”1 Shull told Eisel at the
time that he found these e-mails to be offensive and inappropriate.
Starting in August 2012, Thomas Roth, Brunk’s Tool and Die
Estimator,

complained

to

Eisel

that

Hefti

was

aggressive

and

argumentative. Roth continue to raise complaints about Hefti, including an
incident where Hefti used a belligerent tone when speaking to a co-worker.
On October 25, Eisel told Hefti during an e-mail exchange to put an
end to his comments to co-worker Dennis Borst “before it becomes an
issue.” Hefti responded that he knew his comments would upset Eisel, but
that Borst deserved a “shot.”
On November 1, Hefti sent an e-mail that offended co-worker John
Ruzicka. Eisel spoke to Hefti about the e-mail, telling him that he
considered the e-mail to be inappropriate.
In Hefti’s Third Quarter 2012 review, Eisel wrote that he “discussed
with Jim the feedback that I have gotten from others about how his e-mails
appear offensive and his personality the same. I asked him to be cognizant
of this feedback and to try to keep himself approachable.” Hefti
acknowledged that his co-workers found him to be “difficult and
The record does not reveal the meaning of this term. According to the MerriamWebster online dictionary, hayshaker is slang for hayseed. See also
www.legendsofamerica.com/we-slang-h.html, Western Slang & Phrases – H, “Hay
Seed,” Derogatory term for a farmer, also called hay shaker.
1

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unapproachable.”
On December 5, Hefti sent an e-mail to Dykstra telling him “you’re
my bitch.” Dykstra complained about this comment to Eisel, and Hefti later
admitted that the comment was inappropriate. On January 4, 2013, Hefti
sent an e-mail to Eisel, referring to Shull: “If he has 1 negative thing to say
about me per our conversation, I want to hear about it immediately. He
had a mad [sic] attitude and I defended myself professionally. No more of
this nonsense in my review.”
On February 7, Dykstra forwarded an e-mail exchange between him
and Hefti, telling Eisel “I do not know what to do with this anymore. I have
tried to just ignore but it is not getting any better. Help.” The next day,
Hefti’s wife visited him at work and Hefti introduced her to Dykstra by
stating, “This is my bitch, Jon.”
In February or early March, 2013, Roth told Eisel that it was
becoming increasingly difficult to work with Hefti because Hefti was
manipulating information between Eisel, Dykstra and Roth, and because
Hefti was argumentative during meetings with co-workers. Roth also told
Eisel that Hefti had a “belligerent” tone when speaking with co-workers.
Hefti’s Fourth Quarter 2012 review took place on March 7, 2013,
during which Hay told Hefti that he was unhappy with the level of Hefti’s
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sarcasm in his communications. Nonetheless, Hefti received a “3.5” out of
“5” in his review, evaluating his first full year of employment. Hefti also
received two “4’s” out of “5” in the category of “Work Behavior.”
On March 22, 2013, at 10:13 a.m., Hefti told Dykstra in an e-mail,
“As an apprentice, you should really show more respect for your design
elders. I can do this all day and I will get the last shot as you thru [sic] the
first one.” Dykstra immediately forwarded this e-mail to Eisel, adding
“This is ridiculous.” Eisel agreed. The same day, at 11:02 a.m., Hefti told
Dykstra in an e-mail to “refrain from any sarcasm towards me as you do
not have the mental ability to handle any sarcasm that is returned at you.”
Eisel told Brunk’s president, Lars Brunk about Hefti’s March 22 emails to Dykstra. Brunk responded that Hefti should be terminated if
everyone was in agreement. Eisel was worried that if something was not
done about Hefti’s behavior, Dykstra, a ten-year employee, would quit.
Eisel also believed that he could no longer tolerate Hefti’s unprofessional
communication style and behavior. On March 25, 2013, Eisel recommended
Hefti’s termination to Nancy Finlay, Brunk’s Human Resources Manager.
Finlay then spoke with Mike Black, Brunk’s Vice President of Finance, who
gave final authorization to terminate Hefti’s employment.
Eisel and Finlay held a termination meeting with Hefti, after which
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Hefti left the building to move his vehicle closer to more easily load his
personal belongings. When Hefti returned, instead of going to get his
personal belongings, Hefti went into Finlay’s office. Hefti was very upset
and wanted to know why Brunk was not protecting him from “bullshit
allegations.” After this, Hefti told Finlay that she needed to get out of his
way or call the police if she wanted him to leave, because otherwise he was
taking his stuff and did not want anyone from Brunk touching his things.
The police eventually arrived, and as he left, Hefti told Eisel, “You haven’t
heard the last of me!”
ANALYSIS
Summary judgment should be granted if “the movant shows that
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). The plain
language of the rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court
accepts as true the evidence of the nonmovant and draws all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
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(1986).
The FMLA provides eligible employees the right to take unpaid
leave for a period of up to twelve work weeks in any twelve-month period
because of a serious health condition, including the serious health
condition of a family member. Lewis v. Sch. Dist. #70, 523 F.3d 730, 741
(7th Cir. 2008). It is “unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right provided”
under the Act. 29 U.S.C. § 2615(a)(1). It is also unlawful to retaliate
against employees who choose to exercise their FMLA rights. King v.
Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999). A claim under the
FMLA for wrongful termination “can be brought under either a
discrimination/retaliation or interference/entitlement theory …” Kauffman
v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). The difference
between a retaliation theory and an interference theory is that the former
requires “proof of discriminatory or retaliatory intent,” while an
interference theory requires only “proof that the employer denied the
employee his or her entitlements under the Act.” Goelzer v. Sheboygan
Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010).
Hefti can survive summary judgment on his retaliation claim by
presenting evidence of (1) a statutorily protected activity, (2) a materially
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adverse action taken by Brunk, and (3) a causal connection between the
two. Makowski v. SmithAmundsen LLC, 662 F.3d 818, 824 (7th Cir. 2011).
This is the so-called “direct” method of proof, under which a plaintiff can
prevail by showing an admission of discrimination or by constructing a
“convincing mosaic” of circumstantial evidence that allows a jury to infer
intentional discrimination by the decision maker. Ridings v. Riverside Med.
Ctr., 537 F.3d 755, 771 (7th Cir. 2008). Hefti chooses the mosaic route.
Such evidence can include (1) suspicious timing, ambiguous statements,
verbal or written, and other bits and pieces from which an inference of
retaliatory intent might be drawn; (2) evidence, but not necessarily
rigorous statistical evidence, that similarly situated employees were
treated differently; and (3) evidence that the employer offered a pretextual
reason for an adverse employment action. Coleman v. Donahoe, 667 F.3d
835, 860 (7th Cir. 2012). “Each type of evidence is sufficient by itself
(depending of course on its strength in relation to whatever other evidence
is in the case) to support a judgment for the plaintiff; or they can be used
together.” Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
Hefti argues that the timing of his firing was suspicious because it
came two weeks after he requested FMLA paperwork and three days (one
work-day) after he submitted the form. Suspicious timing, standing alone,
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is “rarely sufficient” to “create a triable issue.” Argyropoulos v. City of
Alton, 539 F.3d 724, 734 (7th Cir. 2008). Hefti’s claim, however, is
supported by more than just suspicious timing. Hefti’s manager, Rick Eisel,
was outwardly disappointed when Hefti explained that he needed to take
leave. In fact, it is undisputed that Eisel told Hefti that he was expected to
work because Brunk pays for his insurance. This statement strongly
suggests discriminatory intent because under the FMLA, an employee is
“entitled to have health benefits maintained while on leave as if the
employee had continued to work instead of taking the leave.” 29 C.F.R.
§ 825.100(b); 29 U.S.C. § 2614(c)(1). In other words, Eisel’s statement
suggests a causal link between Hefti’s protected activity, requesting FMLA
leave, and Hefti’s termination because Eisel did not think that Brunk
should have to continue paying for Hefti’s health coverage if he wasn’t
working. Eisel was also visibly perturbed when Hefti followed through and
submitted his FMLA paperwork. If Hefti was really on the road to being
fired, it seems odd that Eisel would be upset about Hefti taking time away
from work. On the contrary, it seems that Eisel would welcome the respite
from a belligerent employee. Thus, the inference can be drawn that the
stated reason for Hefti’s termination was a pretext for discrimination.
Brunk argues, as noted, that Hefti was fired because of
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inappropriate and unprofessional interactions with his co-workers.
Moreover, Brunk was generally receptive to FMLA leave requests, and
Brunk has never been sued under the FMLA prior to this lawsuit. Hurst v.
Ball Memorial Hosp., Inc., No. 1:05-cv-877-JDT-TAB, 2007 WL 1655794, at
*6 (S.D. Ind. June 1, 2007) (granting summary judgment on timing-based
retaliation claim because “utilizing FMLA leave was relatively common” on
the plaintiff’s unit). Even so, the Court is required to draw all reasonable
inferences in favor of Hefti at this stage of the proceedings. Eisel’s
interactions with Hefti create an issue of fact as to whether Hefti was fired
for taking FMLA leave.
The record does reflect, of course, that Hefti had been admonished
for his behavior long before he requested FMLA leave. This might suggest,
as Brunk argues, that the timing of Hefti’s firing in relation to his FMLA
request was a mere coincidence. On the other hand, it begs the question as
to why it took so long to fire Hefti in the first place. In this respect, it is
worth noting that Hefti was never warned that he could be fired if he didn’t
cool it on his combative co-worker interactions. In fact, in his last
performance review, just two weeks before he was fired, Hefti received two
“4’s” out of “5” in the “Work Behavior” category, which measures
“establishing and maintaining effective relations” and “displaying positive
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outlook and pleasant manner.” Plaintiff’s Proposed Findings of Fact, ¶ 9.
Thus, Brunk has not presented “unrebutted evidence” that it “would have
taken the adverse employment action against the plaintiff” even if Brunk
“had had no retaliatory motive.” Ridings, 537 F.3d at 771.
Hefti’s interference claim also survives summary judgment. To
establish such a claim, Hefti must show that (1) he was eligible for the
FMLA’s protections; (2) Brunk was covered by the FMLA; (3) Hefti was
entitled to take leave under the FMLA; (4) Hefti provided sufficient notice
of his intent to take leave; and (5) Brunk denied Hefti FMLA benefits to
which he was entitled. Goelzer, 604 F.3d at 993. The only disputed issue on
this claim is whether Brunk would have fired Hefti in the absence of an
FMLA request. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 636 (7th Cir.
2009) (“an employer who interferes with an employee’s FMLA rights will
not be liable if the employer can prove it would have made the same
decision had the employee not exercised the employee’s FMLA rights”)
(quoting Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977
(8th Cir. 2005)). For the reasons already stated, this is an issue that must
be submitted to a trier of fact.

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.

Brunk’s motion for summary judgment [ECF No. 28] is

DENIED;
2.

Motions in limine are due by October 30, 2015. Responses

are due November 6.
Dated at Milwaukee, Wisconsin, this 23rd day of September, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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