Kazmierski v. Bonafide Safe & Lock Inc

Filing 61

DECISION AND ORDER signed by Judge Lynn Adelman on 12/9/16 that the defendants motion for summary judgment 34 is GRANTED. The Clerk of Court shall enter final judgment. Further ordering that plaintiffs motion to strike the defendants response to the plaintiffs proposed findings of fact 57 is DENIED (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
MICHAEL KAZMIERSKI,
Plaintiff,
v.

Case No. 15-C-0059

BONAFIDE SAFE & LOCK, INC.,
Defendant.
______________________________________________________________________
DECISION AND ORDER
Michael Kazmierski alleges that Bonafide Safe & Lock, Inc., terminated his
employment in violation of the Americans with Disabilities Act (“ADA”). Before me now
is Bonafide’s motion for summary judgment, and also the plaintiff’s motion to strike
Bonafide’s response to the plaintiff’s proposed findings of fact. Summary judgment is
required where “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). When considering a
motion for summary judgment, I take evidence in the light most favorable to the nonmoving party and must grant the motion if no reasonable juror could find for that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).
I. BACKGROUND
The plaintiff began working for the defendant as a locksmith technician in 2004.
His job primarily involved traveling to homes and businesses to service or install locks,
doors, safes, bank vaults, and related security equipment. The defendant terminated
the plaintiff’s employment in August 2013.

The decision to terminate the plaintiff’s

employment was made by Mike Egan, the president of the company.
contends that he was terminated in violation of the ADA.
1

The plaintiff

In the early 2000s, before the defendant hired him, the plaintiff was diagnosed
with three herniated discs in his lower back. According to the plaintiff’s evidence, he
continues to suffer from back pain associated with the herniated discs and will
occasionally experience flare-ups of back pain. For purposes of summary judgment,
the defendant concedes that the plaintiff’s herniated discs and the associated back pain
qualify as a disabilities under the ADA.
In 2008, the plaintiff was diagnosed with chronic sinusitis. He continued to suffer
from that condition throughout his employment with the defendant. The sinusitis flares
up about two to four times each year and causes the plaintiff to experience sinus
infections, cold- and flu-like symptoms, fluid build-up in his ears, headaches, and
vertigo. Pl.’s Proposed Findings of Fact (“PFOF”) ¶ 38. During flare-ups, the plaintiff
will take prescribed antibiotics and steroids that significantly affect his ability to function.
For purposes of summary judgment, the defendant concedes that the plaintiff’s sinusitis
qualifies as a disability under the ADA.
Also in 2008, the plaintiff suffered a heart attack.

By the time Bonafide

terminated the plaintiff’s employment, he had recovered from the heart attack, and the
plaintiff does not claim a heart condition as a disability. However, shortly after the heart
attack, the plaintiff began suffering from anxiety attacks, which were triggered by stress
and/or fear that he would experience another heart attack. In 2011, the plaintiff began
seeing a psychiatrist and a therapist, and he was diagnosed with anxiety and
depression and prescribed medication to treat those conditions.

For purposes of

summary judgment, the defendant concedes that the plaintiff’s anxiety and depression
qualify as disabilities under the ADA.

2

During the plaintiff’s employment, the defendant provided him with five paid sick
days every year. However, in the years preceding his termination, the plaintiff called in
to work much more often than that. In 2011, the plaintiff took 16 unplanned sick days. 1
Def. PFOF ¶ 71. In 2012, he took 10 unplanned sick days. Id. ¶ 72. And in the first
seven months of 2013, the plaintiff took 10 unplanned sick days. Id. ¶ 85. During these
years, when the plaintiff ran out of his allotted five sick days, he used his vacation days
and unpaid leave to make up the difference. At least some of the plaintiff’s unplanned
sick days were necessitated by flare-ups of the conditions that the plaintiff claims as
disabilities under the ADA, i.e., his herniated discs, sinusitis, anxiety, and depression.
However, a large quantity of these unplanned sick days have no connection to these
specific conditions. These sick days were used to deal with matters such as the flu, a
cough, bronchitis, gastro-intestinal issues, eye pain, colitis, a dental emergency, and a
vet emergency. See Def. PFOF ¶¶ 84, 86, 93, 100, 101, 103, 107.
Over the years, the defendant occasionally expressed to the plaintiff that it was
unhappy with his attendance, although it did not formally discipline the plaintiff for
absenteeism until he was terminated. The parties seem to agree that the plaintiff’s
attendance was satisfactory until at least 2008, when the plaintiff suffered his heart
attack. In 2008 and 2009, the defendant’s service manager, Mike Gildemeister, and the
company’s president, Mike Egan, completed performance reviews for the plaintiff in
which they described his attendance as “marginal.” Def. PFOF ¶¶ 62–63. In 2010, the
plaintiff

completed

a

self-evaluation

1

in

which

he

characterized

his

I use the words such as “unplanned” or “unexpected” to denote days on which the
plaintiff was absent from work but did not give the defendant more than a few hours’
notice of the absence. Thus, absences for planned vacations or scheduled doctor’s
appointments would not be unplanned or unexpected absences.
3

“attendance/punctuality” as “below expectations.” Yvonne Egan Decl. Ex. 1. It appears
that the plaintiff’s absences through about 2010 may have been associated with his
anxiety and depression, which at that point were undiagnosed. In 2009, Mike Egan
noticed that the plaintiff seemed depressed, and he suggested that the plaintiff consider
seeing a therapist. The plaintiff did start seeing a therapist in 2009 or 2010. Kazmierski
Dep. at 43. However, as noted above, the plaintiff’s need for a large number of sick
days continued through the end of his employment.

By 2011 or 2012, Mike Egan

implemented a policy under which the plaintiff was required to report the need for an
unplanned sick day directly to him. Kazmierski Dep. at 40, 87–88. Egan felt that if the
plaintiff were required to report his sick days directly to the company president, he
would be less likely to call in sick. M. Egan Decl. ¶¶ 8–9.
The defendant contends that, by July 2013, Egan was concerned with how the
plaintiff’s absences were affecting the company. Def. PFOF ¶ 108. Egan did not have
a problem with any of the plaintiff’s scheduled absences, such as planned vacations
and other days on which the plaintiff reported in advance that he would be absent to
deal with a medical issue. This was because if the absence was planned the company
could prepare for it. Egan Dep. at 62. The plaintiff’s regular visits with his psychiatrist
and therapist were of the “planned” variety, and the company did not have any difficulty
accommodating those. Pl. PFOF ¶ 54; Decl. of Michael Gildemeister ¶ 8. What Egan
was concerned about was the plaintiff’s unplanned absences—those in which he would
call in to work to report an absence between 7:00 a.m. or 8:00 a.m. on a day the
company expected him to be at work. These unplanned absences created a problem
for the company because they would disrupt the schedule for the day. By the time the
plaintiff called in, the service manager would have already assigned the majority of the
4

work to be performed during the day to specific locksmiths. Gildemeister Decl. ¶¶ 9–10.
Thus, when the plaintiff reported that he would be absent, the company would have to
try to quickly reassign the service calls that had been assigned to the plaintiff to other
locksmiths, who themselves were already scheduled to be performing their own service
calls, or to find some other way to handle the work that had been assigned to the
plaintiff. Id. ¶¶ 9–12. Mike Egan described the problem as involving a “mad scramble
to come up with a solution to service all of our customers.” Egan Dep. at 61. At his
deposition, Egan described this “mad scramble” as follows:
It might be that myself or [Mike Gildemeister, the service manager] had to
go and do the job or a job. It might be that the electronics technicians and
whomever else’s schedule had to be rearranged. Unfortunately, some
customers are typically—they are typically mad if we have to reschedule
them. We would try and triage the day as quickly as possible, to decide
what the best plan of attack would be, and that would usually require
overtime on most everyone’s part when someone calls in sick.
Id.

On July 15, 2013, the plaintiff unexpectedly called in sick and reported to the
service manager that he had “tweaked his back.”

Kazmierski Dep. at 129–30;

Gildemeister Decl. ¶ 17. The plaintiff’s pain was apparently caused by his herniated
discs. 2

To report this absence, the plaintiff called Mike Gildemeister, the service

manager. Gildemeister Decl. ¶ 17. Gildemeister then reminded the plaintiff that he was
supposed to report his absence directly to Mike Egan. Id. However, the plaintiff did not

2

A clinical note in the plaintiff’s medical records indicates that, on July 15, 2013, the
plaintiff was experiencing tailbone pain and also “[n]ew low back pain.” ECF No. 49-3 at
p. 58–59. A clinical note dated July 18, 2013 reflects that the plaintiff reported that his
“pain associated with the disc issue is gone,” but that the tailbone pain continued. Id. at
p. 71. Based on these notes, I will assume that a reasonable jury could find that the
“new low back pain” that the plaintiff experienced on July 15 was caused by his
herniated discs.
5

contact Egan to report the absence. Egan Dep. at 139:10–13; M. Egan Decl. ¶ 21. But
at some point during the day, Gildemeister informed Egan that the plaintiff had called in
because of back pain and was seeking medical treatment.
When the plaintiff saw his doctor on July 15, 2013, the doctor ordered an MRI.
The doctor also faxed a note to Bonafide excusing the plaintiff from work from July 15 to
July 17, 2013. The doctor’s note explained that the reason for the absence was a
“medical illness.” ECF No. 49-3 at p. 76.
On July 18, the plaintiff’s doctor entered a clinical note stating that the MRI
results did not show any abnormalities and that the plaintiff could return to work. ECF
No. 49-3 at p. 71. The plaintiff reported to work on July 18. However, when he arrived,
Mike Egan sent him home because the plaintiff did not have a note from his doctor
clearing him to return to work. On that same day, Mike Egan told the plaintiff that he
was going out of town, that the plaintiff should “take the week off,” and that he would
discuss the plaintiff’s employment at Bonafide when he returned. Later that day, the
plaintiff’s doctor faxed a note to Bonafide stating that the plaintiff could return to work
with no restrictions. However, the plaintiff continued to remain at home pursuant to
Mike Egan’s instructions.
After July 18, the plaintiff and Egan had two in-person conversations and spoke
on the phone more than once. During the second of these in-person conversations,
Egan and the plaintiff discussed a variety of topics but focused on whether the plaintiff
could satisfactorily perform the job of a locksmith service technician given the various
problems that were causing his attendance to be unreliable, including his “health
issues,” his dog, and “problems he had been having with his wife.” Egan Dep. at 104–
05. The parties also discussed the fact that the plaintiff’s heart attack had “messed with
6

[his] head tremendously,” and that his psychiatrist had recently adjusted his anxiety and
depression medication. Kazmierski Decl. ¶ 22. Egan also informed the plaintiff that “it
[was] just too much” for the company to have to continuously make changes to its
schedule when the plaintiff called in sick shortly before 8:00 a.m. Egan Dep. at 105.
During one of their conversations, Mike Egan told the plaintiff that “everyone” at
the company was putting pressure on him to terminate his employment. Egan Dep. at
101. Apparently, Egan was referring to the fact that least three employees at Bonafide
wanted the plaintiff “gone” because “they were tired of having to pick up the extra work”
caused by the plaintiff’s absences. Kazmierski Dep. at 256:9–25. The plaintiff then
asked Egan whether he should write a letter to the other employees to explain why he
was absent so frequently. Egan told the plaintiff that the letter “couldn’t hurt,” and that
the company was a family and the decision whether to terminate him would be a “group
decision.” Egan Dep. at 102. The plaintiff decided to write the letter, and on July 29,
2013, he sent an email to all of Bonafide’s employees. The plaintiff began the email by
acknowledging that there were “a lot of hard feelings” towards him because of his
“attendance issues.” ECF No. 50-4 at p. 1. The plaintiff apologized for “put[ting] an
extra work load on each and every” other employee. Id. The plaintiff then wrote several
paragraphs about how his heart attack had affected him. The plaintiff explained that the
heart attack led to his anxiety and depression, and that he was under the care of a
psychiatrist and therapist and was taking medication. The plaintiff stated that, in the
past year, his anxiety and depression had gotten better, and he asked the employees to
understand that he was trying hard not to miss work. In this email, the plaintiff did not
mention a back problem, his herniated discs, or his sinusitis.

7

On August 2, 2013, Egan and the plaintiff spoke by telephone. According to the
plaintiff’s recollection of this conversation, Egan told the plaintiff that in order to continue
working at Bonafide he would have to draft his own letter of resignation, which Bonafide
would consider tendered in the event that the plaintiff “ever miss[ed] another day of
work due to an illness or anything pertaining to that.” Kazmierski Dep. at 105–06. The
plaintiff refused to draft his own letter of resignation because he could not guarantee
that one of his “sicknesses” would not keep him out of work one day. Id. at 204–05. In
the plaintiff’s mind, his “sicknesses” included his back, sinusitis, anxiety, depression,
and anything else. Id. at 205:2–6. According to the plaintiff, he told Egan during this
conversation that he could not guarantee that his “disabilities” would not cause him to
miss work or that he would never have to leave work early for a doctor’s appointment.
Id. at 254; Kazmierski Decl. ¶ 28.

However, according to Egan, the plaintiff never

mentioned during this conversation that he would likely need to miss work from time to
time to deal with flare ups associated with his herniated discs, sinusitis, anxiety, or
depression. M. Egan Decl. ¶ 27.
When the plaintiff refused to draft his own letter of resignation, Egan terminated
his employment. Egan testified at his deposition that his primary reason for terminating
the plaintiff was his “inability to be at work reliably and regularly.” Egan Dep. at 118.
Egan states in his declaration that his decision to terminate the plaintiff was not based
on his sinusitis, anxiety, depression, or herniated discs. Egan Decl. ¶ 29.
II. DISCUSSION
The ADA provides that a covered employer shall not “discriminate against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). “Discrimination,”
for purposes of § 12112(a), includes “not making reasonable accommodations to the
8

known physical or mental limitations of an otherwise qualified individual with a disability”
unless the employer “can demonstrate that the accommodation would impose an undue
hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). To establish a
claim under the ADA, a plaintiff must show that he is a “qualified individual.” Brumfield
v. City of Chicago, 735 F.3d 619, 631 (7th Cir. 2013). A qualified individual is defined
as “an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position.” 42 U.S.C. § 12111(8).
The plaintiff contends that, as of August 2013, he could have continued to
perform the essential functions of his locksmith position if Bonafide would have allowed
him to take intermittent sick leave whenever he experienced a “flare up” associated with
the medical conditions that the parties agree are disabilities within the meaning of the
ADA—his herniated discs, sinusitis, anxiety, and depression. The plaintiff contends that
allowing him intermittent leave would have been a reasonable accommodation to which
he was entitled under the ADA. Therefore, the plaintiff argues, by conditioning his
future employment on his agreeing to never take another unexpected sick day, Bonafide
effectively terminated him on the basis of his disability, in violation of the ADA.
Before going further, I note that the plaintiff claims that his four disabilities
required him to take “up to five” unexpected absences per month, see Br. in Opp. at 16,
yet his actual attendance record suggests that his disabilities did not cause him to take
nearly that many sick days per month. As described above, in the last 2½ years of his
employment at Bonafide, the plaintiff was unexpectedly absent 36 times. However, the
only absence that the plaintiff connects to a disability is the last absence, which a

9

reasonable jury could find was caused by a flare-up of his herniated discs. 3 The rest of
his absences were related to matters such as the flu, a cough, bronchitis, gastrointestinal issues, eye pain, colitis, a dental emergency, and a vet emergency. The
plaintiff does not contend that any of these matters were connected to his herniated
discs, sinusitis, anxiety, or depression. 4

Thus, judging by the plaintiff’s attendance

record, the four disabilities involved in this case did not require the plaintiff to take more
than five unexpected sick days per year. And because Bonafide already provided the
plaintiff with five paid sick days per year, it appears that the plaintiff could have
performed the essential functions of his job without a reasonable accommodation.
If the plaintiff did not require more than five sick days per year to deal with flareups of his disabilities, then if Bonafide terminated him because of his attendance record,
it would not have violated the ADA. That is because the ADA did not require Bonafide
to accommodate the plaintiff’s need for additional sick leave to deal with things such as

3

The record indicates that, in 2009, the plaintiff was unexpectedly absent for one fiveday period due to symptoms caused by his sinusitis. See ECF No. 49-1 at p. 40.
However, as far as the record reveals, no other absences were related to his sinusitis.
(The plaintiff does not contend that when he was absent because of a cold or the flu, he
was experiencing a flare-up of his sinusitis.) The record also indicates that, in 2011, the
plaintiff gave Bonafide a letter from one of his medical providers stating that he would
need “periods of 2–3 days off intermittently throughout the year for medical care”
associated with his “significant anxiety disorder, as well as coronary artery disease.” Id.
at p. 51. However, no evidence suggests that, at any time between 2011 and his
termination in 2013, the plaintiff actually needed to intermittently take days off because
of his anxiety or his heart disease, other than for his planned therapy appointments.
And the plaintiff does not contend that his heart disease is a disability at issue in this
case.
4

In the email he wrote to his coworkers, the plaintiff stated that his medication for his
heart condition lowered his immune system. See ECF No. 50-4 at p.1. However, the
plaintiff does not contend in this suit that any absences caused by a cold, the flu, or
similar illnesses are attributable to his heart condition. And, as I have already noted, the
plaintiff does not contend that his heart condition is a disability at issue in this case.
10

colds, the flu, and vet emergencies, which were not related to his disabilities. 5 Viewed
this way, the “but for” cause of the plaintiff’s termination would be his excessive
absences during the last few years of his employment rather than his disabilities, and
thus the plaintiff’s disabilities would not have been the cause of his termination. See
Hooper v. Proctor Health Care Inc., 804 F.3d 846, 853 (7th Cir. 2015). 6
The plaintiff disputes that he was terminated because of his absenteeism—
whether such absenteeism was caused by his disabilities or not—and contends that
instead he was terminated simply because he was disabled. Pl.’s Br. in Opp. at 23–29.
The plaintiff contends that several facts support this conclusion: (1) the defendant’s
stated reason for terminating him (his absenteeism) appears pretextual; (2) the timing of
the termination was suspicious, in that he was terminated shortly after he experienced a
flare-up of his herniated discs; and (3) Mike Egan took the “anti-disability, discriminatory
animus” of the plaintiff’s coworkers into account in making the decision to terminate his
employment. However, I conclude that the plaintiff’s evidence is insufficient to allow a
reasonable jury to conclude that the plaintiff was terminated for any reason other than
his absenteeism.

5

The parties agree that Bonafide did not have enough employees to fall within the
scope of the Family and Medical Leave Act (“FMLA”). Stipulated Facts ¶ 10. Thus, to
the extent that any of the plaintiff’s absences were related to “serious health conditions”
under the FMLA, see 29 U.S.C. § 2612(a)(1), Bonafide was not required to provide the
plaintiff with intermittent leave to deal with them.

6

The plaintiff does not contend that the 2008 amendments to the ADA, which changed
the statutory language from prohibiting discrimination “because of” a disability to
prohibiting discrimination “on the basis of” a disability, affects the standard required to
prove causation in this case. Thus, I do not address that question. See Hooper, 804
F.3d at 853 n.2; Arroyo v. Volvo Group N. Am., LLC, 805 F.3d 278, 287 n.3 (7th Cir.
2015).
11

First, nothing suggests that Bonafide’s reliance on the plaintiff’s absenteeism is a
mere pretext. As discussed below in the context of addressing whether Bonafide could
have reasonably accommodated the plaintiff’s absenteeism, the evidence shows that
the plaintiff’s frequent unexpected absences interfered with the company’s operations
by making it difficult for the company to respond to customer service calls. The plaintiff
contends that this reason appears pretextual because Bonafide never disciplined him
for his absences until he experienced a flare-up of his back disability.

It is true that,

prior to the plaintiff’s termination, Bonafide never formally disciplined him because of his
absences. However, this does not mean that Bonafide never considered the plaintiff’s
absences to be a problem. To the contrary, in 2008 and 2009, the plaintiff received
performance reviews that described his attendance as “marginal.” Def. PFOF ¶¶ 62–
63. In 2010, the plaintiff completed a self-evaluation in which he characterized his
“attendance/punctuality” as “below expectations.” Y. Egan Decl. Ex. 1. The fact that
the plaintiff recognized that his attendance was below expectations implies that
someone at Bonafide had told him that his attendance was a problem. Moreover, by
2011 or 2012, Mike Egan took action to try to reduce the number of the plaintiff’s
absences by requiring the plaintiff to report his sick days directly to him. Kazmierski
Dep. at 40, 87–88; M. Egan Decl. ¶¶ 8–9. Although this action may not have amounted
to formal discipline, it surely indicated that the company thought that the plaintiff’s
absenteeism was a problem. Thus, the fact that the plaintiff was not formally disciplined
for his absences until he experienced a flare-up up of his back disability does not
support the conclusion that Bonafide’s reliance on his absenteeism is pretextual.
For similar reasons, the timing of the plaintiff’s termination does not appear
suspicious. Yes, the termination occurred on the heels of an absence caused by the
12

plaintiff’s back disability, but that absence was simply the latest in a long string of
unexpected absences, many of which had no apparent connection to his disabilities. By
the time the plaintiff needed an absence to deal with his back disability, Bonafide had
already told him that his attendance was below expectations, and it had set up a special
procedure—the requirement that he report his absences to Egan—that was designed to
discourage him from calling in sick. Yet the plaintiff continued to have a high number of
unexpected absences, leaving Bonafide with few options other than to continue
tolerating his absences or to terminate his employment. When the plaintiff called in the
final time, Bonafide decided that it could no longer tolerate his absenteeism and decided
to terminate his employment.

The plaintiff’s argument that it was really his back

disability rather than his history of absenteeism that caused his termination implies that
Bonafide had no problem allowing the plaintiff to be unexpectedly absent as much as he
wanted for other reasons, but could not tolerate absences related to his back disability.
But all of the evidence makes clear that it was the absences themselves, rather than the
reasons for them, that prompted the plaintiff’s termination.
The plaintiff also contends that Bonafide’s reason for terminating him appears
pretextual because Egan noted during his deposition that terminating the plaintiff would
only make it more difficult for Bonafide to service its customers, since at the time of the
plaintiff’s termination Bonafide was already shorthanded. See Egan Dep. at 113:20–23.
Thus, the argument goes, Bonafide’s reason for terminating him couldn’t really be that
his absences were making it hard for Bonafide to service customers.

However,

although terminating the plaintiff might result in the remaining locksmiths having more
work to do, Bonafide would no longer have to worry about scrambling to reassign work
that had been assigned to the plaintiff when he called in sick. Thus, even though
13

everyone would have more work to do, they could perform their work more efficiently.
Moreover, even if terminating the plaintiff meant that the remaining locksmiths had more
work to do in the short run, Bonafide could eventually hire a new locksmith with reliable
attendance to fill the plaintiff’s position, whereas the plaintiff’s need for frequent
unexpected leave would have been indefinite. Thus, the fact that Bonafide was already
shorthanded when it terminated the plaintiff does not suggest that Bonafide’s reason for
terminating him was pretextual.
The plaintiff’s argument regarding Bonafide’s taking his coworker’s discriminatory
animus into account is based on comments the coworkers made after the plaintiff sent
the email in which he explained that his absences were related to his heart disease,
anxiety, and depression. According to Mike Egan, some coworkers referred to the
plaintiff’s email as “[m]ore of the same blah-blah-blah that everyone had been putting up
with for years in regards to [the plaintiff].” Egan Dep. at 113:4–17. Egan also said that
“most of them didn’t want to put up with it any longer.” Id. Because Egan testified that
he told the plaintiff that the decision to terminate him would be a “group decision,” Egan
Dep. at 102:9–11, I assume that Egan took the views of these coworkers into account
when deciding whether to terminate his employment.

Thus, I assume that if the

coworker’s comments reflected discriminatory animus, they would support a jury’s
finding that the plaintiff was terminated because of that animus, rather than because of
his absenteeism.
It is true that the plaintiff’s coworkers’ comments suggest that they did not think
much of his explanation for his absences, and perhaps the comments also suggest that
the coworkers thought the plaintiff was too quick to blame his absenteeism on his
medical problems. However, the comments do not suggest that the coworkers wanted
14

the plaintiff terminated simply because he was disabled. Rather, as the plaintiff himself
admits, his coworkers wanted him terminated because they were “tired of picking up the
extra work” caused by his absenteeism. Kazmierski Dep. at 256:23–25. Now, as I
discuss in more detail below, the plaintiff’s coworkers’ not wanting to absorb the
plaintiff’s work might not be a reason to deny him a reasonable accommodation if his
disabilities were the cause of the absenteeism. But their not wanting to absorb the work
does not imply that they were biased against him because he was disabled, rather than
because his absences required them to take on extra work. Thus, the evidence relating
to the coworkers’ comments does not suggest that the plaintiff was terminated because
of discriminatory animus, rather than because of his absenteeism.
So far, I have assumed that the plaintiff’s disabilities did not require him to be
unexpectedly absent from work more than five times per year, and that therefore, even
though he was disabled, he could have performed the essential functions of his job
without a reasonable accommodation. However, as noted, the plaintiff contends that his
disabilities required him to be absent from work “up to five times per month,” and that
therefore he needed a reasonable accommodation. Pl.’s Br. in Opp. at 16. The plaintiff
contends that this is supported by a form that his doctor provided to his subsequent
employer on April 7, 2015, in connection with the Family and Medical Leave Act. See
ECF No. 49-3 at pp. 77–80. In this form, the plaintiff’s doctor states that “flare ups”
associated with the plaintiff’s herniated discs, sinusitis, anxiety, and depression can be
expected to require the plaintiff to miss five days of work per month. Id. As I noted
above, the plaintiff’s actual attendance record at Bonafide does not suggest that, as of
August 2013, the plaintiff’s disabilities required him to take this many sick days.
However, as discussed below, Bonafide would be entitled to summary judgment even if
15

a reasonable jury could find that, at the time of his termination, the plaintiff’s disabilities
required him to take up to five unexpected absences per month.
An initial question is whether the plaintiff requested a reasonable accommodation
of his herniated discs, sinusitis, anxiety, and depression. “[T]he standard rule is that a
plaintiff must normally request an accommodation before liability under the ADA
attaches.” Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899
(7th Cir. 2000). After an employee requests a reasonable accommodation, the ADA
requires an employer to “engage with the employee in an ‘interactive process’ to
determine the appropriate accommodation under the circumstances.” Spurling v. C & M
Fine Pack, Inc., 739 F.3d 1055, 1061 (7th Cir. 2014). If this interactive process breaks
down before a reasonable accommodation is identified, then the court must assign fault
for the breakdown. See, e.g., Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130,
1135–36 (7th Cir. 1996). If the employee is responsible for the breakdown, then the
employer is not liable under the ADA. If the employer is responsible for the breakdown,
then it may be liable under the ADA. However, even if the employer is responsible for
the breakdown, the employer is not liable unless the employee proves that he was able
to perform the essential functions of the job with an accommodation. Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013).
The parties do not dispute that Bonafide was aware that the plaintiff suffered
from herniated discs, sinusitis, anxiety, and depression. Bonafide also concedes that it
was aware that the plaintiff’s anxiety and depression required him to occasionally miss
work to attend therapy appointments, and that it could have reasonably accommodated
his absences for therapy because they were planned absences. However, Bonafide
contends that the plaintiff never informed it that his four disabilities were responsible for
16

his unplanned absences or told it that those disabilities would require him to take up to
five unexpected absences per month. Bonafide thus argues that the plaintiff failed to
request an accommodation of those disabilities, and that therefore it cannot be liable for
failing to provide such an accommodation.
The defendant’s argument has some merit. The plaintiff never explicitly asked
Bonafide to accommodate his four disabilities by providing him with additional sick days,
and he never made clear that the sick days he had taken in the last 2½ years of his
employment were caused by those four disabilities. On the other hand, Bonafide was
aware of the plaintiff’s disabilities and that they would occasionally require him to be
unexpectedly absent from work, and the plaintiff’s email to his coworkers seemed to
attribute many of the absences to his anxiety and depression. This raises the question
of whether, under the interactive process, Bonafide had a duty to inquire whether many
or all of the plaintiff’s absences were caused by his disabilities. Further, when Egan told
the plaintiff that if he wanted to continue working at Bonafide he would have to agree to
never be unexpectedly absent again, the plaintiff responded by informing Egan that he
could not guarantee that he would not have another absence due to his “disabilities.”
Kazmierski Decl. ¶ 28. Although the plaintiff did not in this conversation specifically
identify what his disabilities were, a reasonable jury could conclude that the plaintiff’s
mentioning his “disabilities” triggered Bonafide’s duty under the interactive process to
investigate further and determine whether the plaintiff’s herniated discs, sinusitis,
anxiety, or depression required him to take a significant amount of unexpected leave,
and whether Bonafide could reasonably accommodate the plaintiff’s need for that leave.
Thus, for purposes of this motion, I assume that the plaintiff requested a reasonable

17

accommodation of his four disabilities, and that Bonafide was responsible for the
breakdown of the interactive process.
However, as noted, an employer who is responsible for a breakdown of the
interactive process is not liable under the ADA unless the employee proves that he
could have performed the essential functions of his job with a reasonable
accommodation. In other words, the plaintiff must prove that had the employer engaged
in the interactive process, a reasonable accommodation would have been identified. If
no reasonable accommodation was possible, then the breakdown of the interactive
process would be “academic.”

Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.

2000). Thus, I turn to the question of whether the plaintiff has shown that he could have
performed the essential functions of his job if Bonafide had granted him a reasonable
accommodation.
The plaintiff contends that had Bonafide properly engaged in the interactive
process, it would have eventually learned that he needed an accommodation that
consisted of “up to five [unplanned] absences per month (for all four disabilities) and
time off for therapy appointments.” Pl.’s Br. in Opp. at 16. Because Bonafide was
willing to provide the plaintiff with time off for planned therapy appointments, the
question is whether a reasonable jury could find that Bonafide was required to also
provide the plaintiff with up to five unplanned absences per month as a reasonable
accommodation. I conclude that it could not.
The Seventh Circuit has repeatedly stated that the ADA does not require an
employer to accommodate “erratic or unreliable attendance.” Taylor-Novotny v. Health
Alliance Med. Plans, Inc., 772 F.3d 478, 489–90 (7th Cir. 2014); Basden, 714 F.3d at
1037; EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 950 (7th Cir. 2001); Jovanovic,
18

201 F.3d at 899; Waggoner v. Olin Corp., 169 F.3d 481, 484–85 (7th Cir. 1999); see
also Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 602 (7th Cir. 1998) (noting
that “excessive frequency of employee’s absences in relation to that employee’s job
responsibilities” may “lead to a finding that an employee is unable to perform the duties
of his job”). Although the court has explained that the issue of whether a plaintiff’s
absences could be reasonably accommodated is normally a question of fact for the jury,
Haschmann, 151 F.3d at 602, in the present case, a jury could not reasonably conclude
that up to five unanticipated absences per month was reasonable, given the essential
functions of the plaintiff’s job.
An essential function of the plaintiff’s job was to make service calls at customer
locations to service or install locks and related equipment. M. Egan Decl. ¶ 4. As one
might expect, many of these service calls involved emergencies and last-minute
requests for service.

Id. ¶¶ 3, 7, 23.

To perform this work, Bonafide needed its

locksmiths to attend work reliably and predictably.

Id. ¶ 7.

As Bonafide’s service

manager explains in his declaration, anytime a locksmith calls in sick unexpectedly, the
company’s operations are disrupted. Gildemeister Decl. ¶¶ 9–12. The service manager
spends most of his day arranging service calls for locksmiths for the following day. If on
the following day a locksmith unexpectedly calls in sick, then the service manager would
have to “scramble” to reassign the scheduled work. Id. ¶ 10. Reassigning the work
would be particularly difficult if the employee did not report his absence until shortly
before 8:00 a.m., because by 8:00 a.m. the remaining locksmiths would already be on
their way to other jobs. In addition, Bonafide’s policy was to provide same-day service
to any customers who called to request service before noon. Thus, when Bonafide was
short a locksmith, not only would the remaining locksmiths have to absorb the
19

scheduled work that had already been assigned to the absent locksmith, but there
would be one less locksmith to handle any calls for same-day service.

All of this

disruption often resulted in Bonafide paying overtime to the remaining locksmiths, or to
the service manager, who had to work extra hours to make up for the time he spent
rearranging the schedule. Id. ¶ 12. If Bonafide could not assign the absent locksmith’s
work to another locksmith, it would have to reschedule the customer’s appointment.
The service manager states that often customers would be upset when their
appointments were rescheduled, and he reports that “several residential customers
cancelled their appointments with Bonafide due to [the plaintiff’s] absences.” Id. ¶ 11.
Given the nature of the plaintiff’s job and Bonafide’s business, it is clear that
requiring Bonafide to tolerate up to five unanticipated absences per month—or about
one absence per week—would be unreasonable. Each unanticipated absence put a
strain on the company, and although the company could likely have accommodated a
smaller number of absences, such as the five sick days per year it already provided the
plaintiff, up to five each month was simply too many. Perhaps up to five unexpected
absences per month could be a reasonable accommodation for an employee whose job
does not involve time-sensitive work or keeping customer appoitments, so long as the
employee is otherwise able to perform the essential functions of the job. An example
would be the accommodation that Bonafide provided to Yvonne Egan, who performed
administrative work, which I discuss in more detail below. But for a locksmith, whose
essential functions involve keeping customer appointments and assisting them with
emergencies, up to five unexpected absences per month is not a reasonable
accommodation. See Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994)
(finding that employer is not required to accommodate unpredictable absences that
20

required the employer to make “last-minute provisions for [the employee’s] work to be
done by someone else.”).
The plaintiff contends that, for several reasons, the jury could reasonably
conclude that Bonafide was required to accommodate his need for up to five absences
a month. First, he points out that Bonafide employed a number of other employees who
had the skills necessary to cover for him when he was absent. Although it is true that
Bonafide employed other locksmiths, this misses the point, which is that the
unanticipated nature of plaintiff’s absences made it difficult to reassign his work to those
employees in an orderly fashion. As discussed above, on the days when the plaintiff
called in sick, Bonafide’s other locksmiths were already scheduled to be performing
other work. When the plaintiff called in, the service manager had to quickly reassign the
plaintiff’s work to the other locksmiths or reschedule or cancel customer appointments,
as Bonafide did not have idle locksmiths that it could call on in the event of an
unanticipated absence. 7

The need to quickly rearrange the schedule resulted in a

general disruption to the company’s operations, customer dissatisfaction, lost business,
and overtime compensation, and the plaintiff does not point to evidence suggesting that
this general disruption did not occur. 8 Thus, the mere fact that Bonafide employed
7

Bonafide could call on its retired former owner, as well as a part-time employee named
Tom Mueller, to perform service calls when needed. However, the evidence in the
record is that Bonafide’s former owner and Mr. Mueller could usually fill in only when
they had advance notice, such as to cover for a locksmith’s planned vacation or planned
medical leave of absence. M. Egan Decl. ¶ 11; Egan Dep. at 159:21–160:16.
8

The plaintiff notes that the defendant does not submit evidence establishing the cost of
the overtime it paid to other employees to make up for his absences. Pl.’s Br. in Opp. at
21. However, the plaintiff does not point to evidence suggesting that Bonafide did not
pay overtime to the employees who covered for his absences, that Bonafide did not
have to scramble to reassign his service calls, or that the plaintiff’s absences did not
cause Bonafide to lose business. Thus, I consider the defendants’ evidence on these
matters undisputed.
21

others who possessed the same skills as the plaintiff does not imply that Bonafide could
reasonably accommodate the plaintiff’s need for up to five unplanned absences per
month.
The plaintiff also contends that Bonafide could have accommodated his need to
be unexpectedly absent because the defendant was constantly rearranging its schedule
“based on customer needs.” Pl.’s Br. in Opp. at 20. The plaintiff seems to be arguing
that because tending to the last-minute needs of its customers already required
Bonafide to rearrange its schedule, it was reasonable for Bonafide to also have to
rearrange its schedule whenever the plaintiff needed to be unexpectedly absent.
However, the fact that Bonafide’s business required it to rearrange its schedule at the
last minute actually undermines the plaintiff’s argument for an accommodation rather
than supports it. As noted above, when the plaintiff was unexpectedly absent, Bonafide
had one less locksmith available than it thought it would, and thus the plaintiff’s
absences left Bonafide less able to handle its customer’s last-minute calls.
Next, the plaintiff contends that a jury could infer that his needed accommodation
was reasonable because Bonafide allowed other employees to take extensive leaves of
absence for medical reasons. He first points to Yvonne Egan, who Bonafide allowed to
work a flexible schedule to accommodate her multiple sclerosis. However, Yvonne
Egan is not a locksmith and does not perform service calls. She is the company’s vice
president and performs administrative duties, including human-resources functions and
recordkeeping. Decl. of Y. Egan ¶¶ 2–4. This work is not as time-sensitive as locksmith
work, and the fact that Bonafide was able to accommodate her need for unanticipated
leave does not imply that it could have reasonably accommodated a locksmith’s need
for unanticipated leave.

The plaintiff also points to medical leave taken by Mike
22

Gildemeister, the service manager, and two other locksmiths.

However, these

employees required periods of leave to deal with temporary medical conditions; they did
not have an ongoing need to be able to call in sick on short notice, as did the plaintiff.
Pl. PFOF ¶¶ 79–80. For the most part, Bonafide was able to accommodate these
employees by arranging in advance to have other employees work in their place. Egan
Dep. 160:5–13. To the extent that these employees unexpectedly required intermittent
leave, which would have resulted in the same “mad scramble” as the plaintiff’s
unexpected absences, no evidence suggests that their need for unexpected leave was
permanent or long-lasting, as was the plaintiff’s need for such leave. 9 Thus, the fact
that Bonafide was able to temporarily accommodate these employees does not imply
that it could have reasonably accommodated the plaintiff’s ongoing need for a
substantial amount of unexpected leave each year.
Finally, the plaintiff contends that the only burden that his unexpected absences
caused Bonafide was “to upset employee morale.” Br. in Opp. at 20. In referring to
employee morale, the plaintiff means “the general discontentment of other employees,
including [the service manager], who created the daily schedule, and employees who
had to cover for [the plaintiff] in his absence.”

Id.

The plaintiff contends that the

negative impact of his absences on the morale of his coworkers is not a legitimate factor
to consider when deciding whether an accommodation is reasonable or imposes an
undue hardship.

He cites the EEOC’s enforcement guidance on reasonable

accommodations and undue hardship, which states that an employer cannot claim an
9

Initially, Gildemeister needed leave “sporadically” to deal with a shoulder injury. He
then had surgery to fix the problem and took a continuous period of leave for
rehabilitation. Pl. PFOF ¶ 79. It thus appears that Gildemeister’s need for sporadic
leave was only temporary.
23

undue hardship based on either its employees’ fears or prejudices towards the
individual’s disability, or because making a reasonable accommodation for the individual
that involves transferring some of the individual’s marginal functions to coworkers
makes the coworkers unhappy. 10

10

The EEOC enforcement guidance provides in relevant part as follows:
An employer cannot claim undue hardship based on employees’ (or
customers’) fears or prejudices toward the individual’s disability. Nor can
undue hardship be based on the fact that provision of a reasonable
accommodation might have a negative impact on the morale of other
employees. Employers, however, may be able to show undue hardship
where provision of a reasonable accommodation would be unduly
disruptive to other employees’ ability to work.
Example A: An employee with breast cancer is undergoing chemotherapy.
As a consequence of the treatment, the employee is subject to fatigue and
finds it difficult to keep up with her regular workload. So that she may
focus her reduced energy on performing her essential functions, the
employer transfers three of her marginal functions to another employee for
the duration of the chemotherapy treatments. The second employee is
unhappy at being given extra assignments, but the employer determines
that the employee can absorb the new assignments with little effect on his
ability to perform his own assignments in a timely manner. Since the
employer cannot show significant disruption to its operation, there is no
undue hardship.
Example B: A convenience store clerk with multiple sclerosis requests that
he be allowed to go from working full-time to part- time as a reasonable
accommodation because of his disability. The store assigns two clerks per
shift, and if the first clerk’s hours are reduced, the second clerk’s workload
will increase significantly beyond his ability to handle his responsibilities.
The store determines that such an arrangement will result in inadequate
coverage to serve customers in a timely manner, keep the shelves
stocked, and maintain store security. Thus, the employer can show undue
hardship based on the significant disruption to its operations and,
therefore, can refuse to reduce the employee’s hours. The employer,
however, should explore whether any other reasonable accommodation
will assist the store clerk without causing undue hardship.

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, 2002 WL 31994335, at *28–29 (October 17,
2002) (footnotes omitted).
24

As I discussed above, there is no evidence that the plaintiff’s coworkers harbored
fears or prejudices towards the plaintiff because of his disability. Rather, the employees
who wanted the plaintiff terminated were “tired of having to pick up the extra work”
caused by his many absences, whether disability-related or not. Kazmierski Dep. at
256:14–25. Of course, the EEOC guidance provides that a coworker’s unhappiness
over having to perform some of a disabled employee’s marginal functions is not a
reason that supports denial of the reasonable accommodation, so long as the employer
determines that the coworker can absorb the extra work without disrupting the
company’s operations. But, in the present case, when the plaintiff was unexpectedly
absent, his coworkers had to perform the essential functions of his job—i.e., all of the
service calls that he had been assigned for the day that could not be rescheduled—not
just some of his marginal functions.

Moreover, as discussed above, Bonafide

determined that the plaintiff’s coworkers could not absorb the plaintiff’s work at the last
minute without disrupting operations. Again, the undisputed evidence shows that when
the plaintiff called in sick, Bonafide had to scramble to reassign or reschedule his
service calls, which resulted in customer dissatisfaction, customer cancellations, and
overtime. Thus, although Bonafide could not have refused to provide the plaintiff with
an accommodation simply because his coworkers did not want to do extra work that
they could absorb, here the only reasonable conclusion that can be drawn from the
record is that the plaintiff’s coworkers could not absorb the extra work without disrupting
Bonafide’s operations. Thus, Bonafide did not impermissibly terminate the plaintiff on
the basis of his coworker’s attitudes.
In his brief, the plaintiff contends that even if his preferred accommodation (up to
five unexpected sick days per month) was not reasonable, it is possible that had
25

Bonafide engaged in the interactive process, it would have identified some alternative
reasonable accommodation. Br. in Opp. at 21–23. However, the plaintiff does not
identify any alternatives to his request for a substantial amount of unanticipated leave.
See id. The plaintiff does not, for example, contend that he could have been transferred
to a different position, such as an office position similar to Yvonne Egan’s, in which he
could have performed the essential functions of the job even if he took up to five
unexpected absences per month. Thus, the plaintiff has failed to carry his burden of
showing that, had Bonafide properly engaged in the interactive process, some
reasonable accommodation would have been identified.

See Basden, 714 F.3d at

1039.
One additional quirk in this case is that Egan did not just terminate the plaintiff’s
employment because of his absenteeism, but also because the plaintiff refused to draft
his own resignation letter, which, according to the plaintiff, Egan would have considered
tendered in the event that the plaintiff “ever miss[ed] another day of work due to an
illness or anything pertaining to that.” Kazmierski Dep. at 105–06. Assuming as I must
for purposes of summary judgment that the plaintiff’s account of what Egan said during
this conversation is true, then Egan would have conditioned the plaintiff’s further
employment on his never taking another sick day for any reason, including a reason
associated with his disabilities. A question thus arises as to whether Egan’s giving the
plaintiff this ultimatum transformed the termination into one that violated the ADA. I
conclude that it did not. As discussed above, as of August 2013 Bonafide could have
terminated the plaintiff because of his excessive absences, which either were not
caused by his disabilities or, if they were, could not be reasonably accommodated. But
instead of just terminating the plaintiff outright, Egan conditioned the plaintiff’s continued
26

employment on his agreeing (in the form of the resignation letter) that any additional
unexpected absences would result in termination. If these were the actual terms of the
deal, then of course the plaintiff could not agree to it, because no person, whether
disabled or not, can guarantee that he or she will never need to call in sick. Essentially,
then, Egan’s conditioning the plaintiff’s further employment on his agreeing to never call
in sick had the same effect as a termination, in that Egan made the plaintiff an offer he
knew he could not accept. But because, as I have discussed, Bonafide was entitled to
terminate the plaintiff’s employment outright based on his absenteeism, Egan’s asking
the plaintiff to draft his own resignation letter, which had the same effect as a
termination, did not result in a violation of the ADA. Egan’s making this offer did not
reflect animus against persons with disabilities. Rather, the offer was essentially a
gimmick to try to get the plaintiff to take his attendance more seriously. Although the
terms of the deal, if accepted, would have denied the plaintiff the accommodation he
claims he needed (up to five sick days per month), as I have explained that
accommodation was not reasonable. Finally, although the offer may have caused a
breakdown in the interactive process, the plaintiff has not identified any alternative
accommodation that would have allowed him to perform the essential functions of his
job.
One last issue is the plaintiff’s motion to strike the defendant’s response to his
proposed findings of fact, which the defendant filed three days after the filing deadline.
The defendant filed its reply brief on the filing deadline, which was a Friday, but,
according to defendant’s counsel, a filing error delayed the filing of its response to the
proposed findings of fact until the following Monday. The plaintiff does not contend that

27

the late filing caused him any prejudice, and the court was not prejudiced by the delay.
Accordingly, I will not strike the defendant’s response to the proposed findings of fact.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the defendant’s motion for
summary judgment is GRANTED. The Clerk of Court shall enter final judgment.
IT IS FURTHER ORDERED that the plaintiff’s motion to strike the defendant’s
response to the plaintiff’s proposed findings of fact is DENIED.
Dated at Milwaukee, Wisconsin, this 9th day of December, 2016.
s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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