Goad v. Milwaukee County
DECISION AND ORDER signed by Magistrate Judge David E Jones on 3/21/18 granting in part and denying in part 24 Motion for Summary Judgment. (cc: all counsel) (kah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-CV-950
DECISION AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Neal Goad was employed by Milwaukee County (the County) as a facilities
maintenance worker from February 2012 until December 2015. During the course of
Mr. Goad’s employment, the County ranked the members of his maintenance crew
based on seniority. This ranking was used, among other things, to establish the
Mr. Goad began his employment ahead of only one crew member on the
seniority list, but he then moved to third-to-last after the County hired a new
maintenance worker. From June 2013 until September 2013, Mr. Goad was out on
medical leave after breaking his arm. Mr. Goad’s supervisor erroneously believed
that this leave period did not count as accrued time toward the County’s seniority
system. Consequently, by the time Mr. Goad returned from leave, he had been
passed by the only two co-workers beneath him in seniority.
As the last-ranked crew member, Mr. Goad had the worst schedule. He was
frequently required to return to work just eight hours after finishing a shift. As a
result, Mr. Goad became sleep deprived, depressed, anxious, and irritable. When
Mr. Goad complained about his schedule, he learned that the supervisor erred in
holding the missed time against him. By that time, however, Mr. Goad did in fact
have the least amount of seniority on his crew. Mr. Goad was eventually terminated
following an altercation with a co-worker.
Following his termination, Mr. Goad filed suit in federal court, alleging that
the County interfered with his rights under the Family and Medical Leave Act
(FMLA) of 1993 and the ADA Amendments Act (ADAAA) of 2008 and retaliated
against him for exercising his FMLA rights. The County has moved for summary
judgment on all of Mr. Goad’s claims. For the reasons that follow, the Court finds
that the County is entitled to summary judgment on Mr. Goad’s FMLA retaliation
and ADAAA claims but not his FMLA interference claim. The County’s motion will
therefore be granted in part and denied in part, as explained below.
On February 12, 2012, Milwaukee County hired Neal Goad as a facilities
maintenance worker. Defendant’s Proposed Findings of Fact in Support of Its
Motion for Summary Judgment (Def.’s Facts) ¶¶ 1–2, ECF No. 30. In that capacity,
This factual background is taken from the parties’ statements of fact and the
responses thereto. The Court notes that the County filed a reply in support of its
own facts. See Defendant’s Replies to Plaintiff’s Responses to Defendant’s Proposed
Findings of Fact, ECF No. 36. This document was not necessary to the disposition of
(continued on next page)
Mr. Goad was responsible for lawn care, salting, snow removal, light bulb
replacement, general maintenance, and grounds maintenance. Def.’s Facts ¶ 3.#Mr.
Goad’s initial assignment was at the Vel R. Phillips Juvenile Justice Center, labeled
by the County as Facilities West. Def.’s Facts ¶ 4.
The County used a seniority system for its facilities maintenance workers.
See Def.’s Facts ¶¶ 10–16. Workers were ranked based on the hours they had
accrued, excluding overtime. This ranking was used, in part, to determine the
workers’ schedules. Workers with the same number of seniority hours were ranked
based on the last four digits of their social security numbers: the worker with the
highest number received the highest seniority ranking and so on and so forth.
Mr. Goad was initially (and incorrectly) ranked second-to-last on his
maintenance crew, ahead of only Devin Richard. See Def.’s Facts ¶ 22. Although
both were hired and began work on the same day, Mr. Richard’s social security
number is higher than Mr. Goad’s, entitling Mr. Richard to higher seniority under
the applicable work rules. Def.’s Facts ¶ 23. But for the County’s mistake, Mr. Goad
would have been the lowest ranked facilities maintenance worker at the outset of
his employment. Def.’s Facts ¶ 24.
In May 2013, Mr. Goad broke his arm. Plaintiff’s Proposed Findings of Fact
(Pl.’s Facts) ¶ 4, ECF No. 33. He informed his supervisor, Jason McCarthy, of the
the motion and is not ordinarily permitted by this district’s local rules. See E.D.
Wis. Civil L. R. 7(i) & 56(b)(3). As such, it will not be referred to herein. See, e.g.,
J.M. v. City of Milwaukee, 249 F. Supp. 3d 920, 933 n.8 (E.D. Wis. 2017) (noting
that such replies are “neither contemplated nor permitted by this District’s Local
injury and indicated that he needed time off to allow his arm to heal. Pl.’s Facts ¶ 4.
Mr. Goad took a leave of absence under the FMLA. See Amended Complaint ¶ 10,
ECF No. 13. On August 9, 2013, Mr. Goad’s doctor told him that he could return to
work on September 3, 2013. Am. Compl. ¶ 11. When Mr. Goad called Mr. McCarthy
to inform him of his impending return to work, Mr. McCarthy told Mr. Goad that he
had “lost time” as a result of his unpaid leave. See Am. Compl. ¶ 12–14; Pl.’s Facts
¶ 5; Def.’s Facts ¶¶ 26, 28–33. Mr. Goad therefore would have the least amount of
seniority of the workers on his maintenance crew upon his return.
When Mr. Goad returned to work as planned in September 2013, he was
listed last on the schedule, immediately behind Mr. Richard and Derrick Watson, a
maintenance worker who started in late February 2012—two weeks after Mr. Goad
and Mr. Richard. See Def.’s Facts ¶¶ 25, 40. Facilities workers were scheduled for
multiple different shifts (i.e., first, second, or third) during the same two-week pay
period, which sometimes required them to return to work just eight hours after
finishing a shift. See Am. Compl. ¶ 15–17; Pl.’s Facts ¶ 7; Def.’s Facts ¶ 57–58. Mr.
Goad was informed during the interview process that the facilities maintenance
position involved working such “swing shifts.” Def.’s Facts ¶ 58.
Upon his return, Mr. Goad was required to work more swing shifts than he
had prior to taking FMLA leave. Pl.’s Facts ¶ 7. Before going out on leave, Mr. Goad
had worked twelve swing shifts; he worked fourteen such shifts upon his return.
Similarly, upon his return, Mr. Goad was required to work more swing shifts than
his closest peers in seniority. Prior to Mr. Goad’s leave, Mr. Richard had worked
fifteen swing shifts while Mr. Watson had worked twelve. After Mr. Goad returned,
Mr. Richard worked four and Mr. Watson worked five.2 See Pl.’s Facts ¶¶ 40–50;
Def.’s Facts ¶¶ 42–48, 61–71 (citing Exhibit 11 to Declaration of Kristofor L.
Hanson, ECF No. 28-11).
In Spring 2014, Mr. Goad learned that he should not have lost seniority for
taking unpaid leave. See Pl.’s Facts ¶¶ 8–11. He subsequently called Mr. McCarthy
to question why he was last on the schedule. See Am. Compl. ¶ 20; Pl.’s Facts
¶¶ 22–24, 26, 30–31; Def.’s Facts ¶¶ 94–99. Mr. McCarthy explained that Mr. Goad
and Mr. Richard had the least amount of time accrued, but Mr. Goad was listed last
as a result of the County’s tiebreaking system. By that time, Mr. McCarthy had
learned that unpaid leave time did not affect seniority. See Plaintiff’s Response to
Def.’s Facts ¶ 99, ECF No. 34 (citing Exhibit 9 to Declaration of Brenda Lewison,
ECF No. 35-9). On June 10, 2014, Mr. Goad received a written reprimand for the
conduct he exhibited during his phone conversation with Mr. McCarthy. Am.
Compl. ¶ 21; Pl.’s Facts ¶ 25; Def.’s Facts ¶ 93.
Mr. Goad claims that he developed “swing shift syndrome” (also known as
shift work disorder) as a result of having to work more swing shifts. See Am. Compl.
¶ 18. This condition “is characterized by depression, anxiety, irritability, and
sometimes, increased absenteeism and accidents due to sleep deprivation.” Id. Mr.
Goad testified, however, that he did not inform anyone at the County about his
medical conditions. Def.’s Facts ¶¶ 86–88 (citing Exhibit 3 to Supplemental
Mr. Watson was transferred from Facilities West on February 8, 2014. See Def.’s
Facts ¶¶ 43, 55, 67; Defendant’s Responses to Pl.’s Facts ¶ 48, ECF No. 37.
Declaration of Kristofor L. Hanson, ECF No. 39-3 at 13). But he did take advantage
of the County’s Employee Assistance Program—a program used to provide
employees with opportunities to address workplace issues, see Def.’s Facts ¶ 119—
and voluntarily sought mental health treatment for depression and anxiety, see Am.
Compl. ¶ 22; Pl.’s Facts ¶ 21.
Mr. Goad continuously had conflicts with co-workers while stationed at
Facilities West. Def.’s Facts ¶¶ 91–95. The conflicts became so disruptive that Gary
Waszak, the facilities maintenance manager, decided to consult the human
resources manager assigned to the facilities division, Sean Moore. Def.’s Facts
¶¶ 34, 79, 117. Given the concerns from Mr. Goad’s supervisors, in October 2014,
Mr. Moore determined that Mr. Goad should participate in the Employee Assistance
Program. See Def.’s Facts ¶¶ 115–18. He issued the mandatory referral during a
meeting he arranged with Mr. Goad and Mr. Waszak. Pl.’s Facts ¶ 33. During that
meeting, Mr. Goad indicated that he was already seeing someone from the
Employee Assistance Program and questioned why he had to see someone else. Pl.’s
Facts ¶ 34.
The mandatory referral letter, which was addressed to Mr. Goad, stated as
follows: “A review of your past/current performance has indicated a problem
with/history of not following directions of [your] supervisor, raising your voice and
being defensive and accusatory with your supervisor, having a poor attitude and not
being helpful with clients when responding to work orders.” See Exhibit 12 to
Hanson Decl., ECF No. 28-13 at 5–6. The letter also described Mr. Goad’s specific
behavioral problems, indicated that Mr. Goad would be referred to a licensed
clinician or treatment facility “to help address the workplace issues,” and
emphasized that Mr. Goad’s compliance with any recommended “treatment” was
mandatory. Id.; see also Pl.’s Facts ¶ 56.
Upon returning to work following the mandatory referral, Mr. Goad was
involuntarily transferred to the Milwaukee County Courthouse. Def.’s Facts ¶¶ 5,
91, 125. Mr. Goad was pleased with his new schedule at the Courthouse, but he
continued to have problems with co-workers. See Def.’s Facts ¶¶ 126–27. For
example, on March 17, 2015, Mr. Goad slapped a radio out of the hands of Anthony
Dailey. Def.’s Facts ¶¶ 128–30; see also Am. Compl. ¶¶ 30–32. The following day,
Mr. Goad and Mr. Dailey were involved in a verbal confrontation while working at
the Courthouse loading dock. Def.’s Facts ¶ 135; see also Am. Compl. ¶¶ 33–35.
The incidents between Mr. Goad and Mr. Dailey were investigated by Mary
Beth Buechel, the County’s human resources business partner. See Def.’s Facts
¶¶ 134–39 (citing Exhibit 13 to Hanson Decl., ECF No. 28-14). Mr. Dailey received a
written reprimand for his actions. Ms. Buechel determined, however, that Mr. Goad
escalated the March 17 incident and instigated the one on March 18. Based on those
findings, as well as Mr. Goad’s prior discipline, on April 21, 2015, Ms. Buechel
recommended that Mr. Goad be discharged. Ex. 13; see also Pl.’s Facts ¶ 61; Def.’s
Facts ¶ 137. Ms. Buechel listed Mr. Goad’s mandatory referral to the Employee
Assistance Program as “prior discipline.” See Ex. 13 at 3; see also Pl.’s Facts ¶ 59.
Ms. Buechel prepared the written charges, which were signed by Jeremy
Theis, the County’s director of facilities management, on May 21, 2015. See Exhibit
A to Declaration of Mary Beth Buechel, ECF No. 25-1; see also Def.’s Facts ¶ 147.
The charges stemmed from the March 18, 2015 verbal confrontation with Mr.
Dailey; the March 17, 2015 physical confrontation with Mr. Dailey; the June 2014
written reprimand; and the October 2014 mandatory referral. Ex. A. Mr. Goad was
suspended without pay pending the final decision of the County’s Personnel Review
Board. Ex. 12 at 1.
Following several hearings, on December 8, 2015, the Review Board upheld
the charges for discharge. See Exhibit B to Buechel Decl., ECF No. 25-2; Pl.’s Facts
¶ 63; Def.’s Facts ¶¶ 147–49. The Review Board determined that Mr. Goad had
violated the following civil service rules of the County: threatening, intimidating,
coercing, or harassing employees or supervision at any time; interference with
normal work flow or departmental procedures; indecent, criminal, or inappropriate
conduct on county premises during working hours; and offensive conduct or
language toward the public or toward county officers or employees. Ex. B at 2. The
Review Board’s decision also referenced the mandatory referral and questioned why
the investigation of the charges against Mr. Goad took so long. See Ex. B at 5–7.
Mr. Goad filed the present action on August 7, 2015, see Complaint, ECF No.
1, and he timely filed an amended complaint on April 1, 2016, see Scheduling Order,
ECF No. 12. The matter was reassigned to this Court in August 2016 after the
parties consented to magistrate judge jurisdiction. See Consent to Proceed Before a
Magistrate Judge, ECF Nos. 15, 16 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P.
In his Amended Complaint, Mr. Goad alleges that the County “interfered
with [his] rights as guaranteed under the Family and Medical Leave Act (FMLA),
the Americans with Disabilities Act, as amended (ADAAA), the Rehabilitation Act,
and the Age Discrimination in Employment Act and retaliated against him for his
use of those rights.” Am. Compl. ¶ 42. He seeks lost wages, damages, and equitable
relief. Am. Compl. ¶¶ 43–44.
On May 12, 2017, the County filed a motion for summary judgment on all of
Mr. Goad’s claims. Defendant’s Motion for Summary Judgment, ECF No. 24; see
also Defendant’s Brief in Support of Its Motion for Summary Judgment, ECF No.
29. In responding to the County’s motion, Mr. Goad expressly abandoned his age
discrimination claim but continued to press his FMLA claims and his disability
discrimination claim. See Plaintiff’s Brief in Response to Defendant’s Motion for
Summary Judgment 1, ECF No. 31. The County filed its reply brief on July 11,
2017. Defendant’s Reply Brief in Support of Its Motion for Summary Judgment,
ECF No. 38. Accordingly, the matter is now ready for disposition.
Summary Judgment Standard
“The court shall grant summary judgment 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). “Material facts” are those that, under the
applicable substantive law, “might affect the outcome of the suit.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is
“genuine” “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id.
A moving party “is entitled to a judgment as a matter of law” when “the
nonmoving party has failed to make a sufficient showing on an essential element of
[his] case with respect to which [he] has the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (first internal quotation marks omitted). Still,
a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
Id. (internal quotation marks omitted).
To determine whether a genuine issue of material fact exists, the court must
review the record, construing all facts in the light most favorable to the nonmoving
party and drawing all reasonable inferences in that party’s favor. See Heft v. Moore,
351 F.3d 278, 282 (7th Cir. 2003) (citing Liberty Lobby, 477 U.S. at 255). “However,
[the court’s] favor toward the nonmoving party does not extend to drawing
inferences that are supported by only speculation or conjecture.” Fitzgerald v.
Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting Harper v. C.R. Eng., Inc., 687
F.3d 297, 306 (7th Cir. 2012)). That is, “to survive summary judgment, the nonmoving party must establish some genuine issue for trial ‘such that a reasonable
jury could return a verdict’ in [his] favor.” Fitzgerald, 707 F.3d at 730 (quoting
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011)).
Mr. Goad claims that the County interfered with his FMLA rights and
retaliated against him for taking FMLA leave by demoting his seniority within the
facilities maintenance crew. He also claims that the County violated the ADAAA
when it terminated his employment. The County seeks summary judgment on all of
A. Whether Milwaukee County is entitled to summary judgment on
Mr. Goad’s FMLA interference claim
Mr. Goad maintains that the County interfered with his FMLA rights
because after he returned from leave he lost seniority and was required to work
disproportionally more swing shifts than Mr. Richard and Mr. Watson, his two
closest peers in seniority on the facilities maintenance crew. Pl.’s Br. 15–16.
“To prevail on an FMLA interference claim, an employee need only show that
his employer deprived him of an FMLA entitlement; no finding of ill intent is
required.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006) (citing Hoge v.
Honda Am. Mfg., Inc., 384 F.3d 238, 244 (7th Cir. 2004)). Specifically, the employee
must establish that: “(1) he was eligible for the FMLA’s protections, (2) his employer
was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he
provided sufficient notice of his intent to take leave, and (5) his employer denied
him FMLA benefits to which he was entitled.” Id. The County does not contest the
first four requirements. See Def.’s Br. 17. The only issue is whether the County
improperly denied benefits to which Mr. Goad was entitled.
The FMLA “provides eligible employees of a covered employer the right to
take unpaid leave for a period of up to twelve work weeks in any twelve[-]month
period for a serious health condition.” King v. Preferred Tech. Grp., 166 F.3d 887,
891 (7th Cir. 1999) (citing 29 U.S.C. § 2612(a)(1)). The Act “also requires that an
employee be reinstated to his former position or an equivalent one upon returning
from leave.” Breneisen v. Motorola, Inc., 512 F.3d 972, 977 (7th Cir. 2008) (citing 29
U.S.C. § 2614(a)(1)). It is “unlawful for an employer to interfere with these
entitlements.” Breneisen, 512 F.3d at 977 (citing 29 U.S.C. § 2615(a)(1)).
“The test for equivalence is strict.” Breneisen, 512 F.3d at 977. Jobs are
equivalent within the meaning of the FMLA only “if they entail ‘equivalent
employment benefits, pay, and other terms and conditions of employment.’”
Breneisen, 512 F.3d at 977 (quoting 29 U.S.C. § 2614(a)(1)(B)). The undisputed facts
demonstrate that Mr. Goad had the same benefits and pay upon his return from
FMLA leave. The parties dispute whether the terms and conditions of Mr. Goad’s
employment were equivalent given his placement on the bottom of the seniority list.
“An equivalent position must have substantially similar duties, conditions,
responsibilities, privileges and status as the employee’s original position.” 29 C.F.R.
§ 825.215(e). As such, an employee returning from leave “is ordinarily entitled to
return to the same shift or the same or an equivalent work schedule.” 29 U.S.C.
§ 825.215(e)(2). The equivalence requirement, however, “does not extend to de
minimis, intangible, or unmeasurable aspects of the job.” 29 C.F.R. § 825.215(f).
Upon returning from FMLA leave in September 2013, Mr. Goad was placed
at the bottom of the seniority list, immediately behind Mr. Richard and Mr. Watson.
As a result, Mr. Goad was required to work more swing shifts than he had prior to
taking leave. In the sixteen-month period prior to taking leave, Mr. Goad worked
twelve swing shifts. Mr. Goad acknowledged that his schedule improved after he
was transferred to the Milwaukee County Courthouse in October 2014. Accordingly,
the issues with his schedule persisted for fourteen months. During that period, Mr.
Goad worked fourteen swing shifts.
By comparison, before Mr. Goad went out on leave, Mr. Richard worked
fifteen swing shifts while Mr. Watson worked twelve. After Mr. Goad returned from
leave, Mr. Richard worked only four swing shifts; Mr. Watson worked five before he
was transferred from Facilities West in February 2014. The following charts depict
Table 1 - Number of swing shifts worked
Feb. 2012 – May 2013
Sept. 2013 – Oct. 2014
Through February 8, 2014.
Table 2 - Average number of swing shifts worked per month
Feb. 2012 – May 2013
Sept. 2013 – Oct. 2014
The above figures show that, prior to Mr. Goad’s leave, the swing shifts were
split relatively evenly between the three maintenance workers. Upon his return,
however, Mr. Goad was required to work more swing shifts than Mr. Richard or Mr.
Watson. A reasonable jury could therefore conclude that Mr. Goad’s position upon
returning from FMLA leave was not equivalent to his pre-leave position.
Accordingly, this case is distinguishable from Karaffa v. Montgomery Twp., CIVIL
ACTION No. 12-1184, 2013 U.S. Dist. LEXIS 39185 (E.D. Pa. Mar. 21, 2013), a case
relied upon by the County.
The County argues that, to the extent Mr. Goad worked more swing shifts
after returning from leave, “the difference is de minimis.” See Def.’s Br. 19–21;
Def.’s Reply 4–7. According to the County, Mr. Goad was incorrectly listed ahead of
Mr. Richard on the schedule prior to taking leave due to an error in how the County
applied its seniority tiebreaking system. Thus, after Mr. Watson was transferred
from Facilities West in February 2014, the schedule was correct: Mr. Goad was
properly listed last, directly below Mr. Richard. During the only period when Mr.
Goad was improperly listed lower on the schedule than he should have been
0.9524 = 5 swing shifts / 5.25 months.
(September 2013 through February 8, 2014), he worked “just three” more swing
shifts than Mr. Watson. Def.’s Reply 5. “These differences become even more de
minimis,” according to the County, “when the number of multiple shifts these
workers were scheduled to work during each two-week pay period is taken into
account.” Def.’s Reply 6.
The County’s arguments are unavailing for several reasons. First, whether
Mr. Goad’s placement on the schedule resulted from a mistake or an intentional act
is irrelevant to his FMLA interference claim. See Burnett, 472 F.3d at 477 (noting
that ill intent is not a required to prove an FMLA interference claim). Second, the
County did not realize its misapplication of the tiebreaking system until Spring
2014 when Mr. Goad started complaining about being placed last on the schedule—
that is, after the mistake was self-corrected upon Mr. Watson’s transfer. It is
unknown when (or if) the County would have discovered this mistake had Mr. Goad
not been improperly demoted. It is therefore reasonable to infer that Mr. Goad
would have been listed ahead of both Mr. Richard and Mr. Watson if the County
had (correctly) not held his taking FMLA leave against him, just as he was prior to
taking leave. The County’s suggestion that Mr. Goad “was not entitled to return to”
the schedule he had prior to taking leave is therefore based on an unreasonable
Third, the County’s argument rests on a misunderstanding of how the Court
views the evidence. At this stage in the proceedings, the Court must construe all
facts in the light most favorable to Mr. Goad, the non-moving party, and draw all
reasonable inferences in his favor. In defining the relevant periods of comparison,
the County essentially asks the Court to consider the evidence in its favor. That
would be improper. The evidence, when viewed in favor of Mr. Goad, shows that he
worked more swing shifts upon his return from leave and worked disproportionately
more swing shifts than either Mr. Richard or Mr. Watson.
Finally, even if the Court were to adopt the County’s periods of comparison, a
reasonable jury still could conclude that Mr. Goad was not reinstated to an
equivalent position upon his return for leave. The average number of swing shifts
Mr. Goad worked per month increased from 0.7500 to 1.0000 upon his return. From
September 2013 through February 8, 2014, Mr. Goad worked three more swing
shifts than Mr. Watson. Thus, Mr. Goad averaged 1.5238 swing shifts per month
over that period while Mr. Watson averaged 0.9524. During this same time period,
Mr. Richard worked only one swing shift, an average of 0.1905 per month. The
County has not provided any explanation for why the Court should ignore the stark
difference in schedules between Mr. Goad and Mr. Richard before and after Mr.
The Court cannot say that these differences are de minimis as a matter of
law. At best, the County’s interpretation of the evidence creates a factual dispute on
the equivalence issue. The County therefore is not entitled to summary judgment on
Mr. Goad’s FMLA interference claim.
B. Whether Milwaukee County is entitled to summary judgment on
Mr. Goad’s FMLA retaliation claim
Mr. Goad similarly maintains that the County placed him at the bottom of
seniority list in retaliation for his taking FMLA leave. Pl.’s Br. 16–17. The County
argues that Mr. Goad’s placement at the bottom of the seniority list does not
constitute a materially adverse employment action under the FMLA. Def.’s Br. 9–
12; Def.’s Reply 8–10. The County further argues that Mr. Goad’s loss of seniority
was an unintentional error, not payback for his taking leave. Def.’s Br. 13–16; Def.’s
It is unlawful for employers to discriminate against an employee who has
exercised his FMLA rights. See 29 U.S.C. § 2615(a)(2). “A retaliation claim requires
proof of discriminatory or retaliatory intent, which can be established directly or
indirectly.” Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012) (citing
Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005)). “To establish a
prima facie case using the direct method, [the employee must] ‘present evidence of
(1) a statutorily protected activity; (2) a materially adverse action taken by the
employer; and (3) a causal connection between the two.’” Langenbach v. Wal-Mart
Stores, Inc., 761 F.3d 792, 799 (7th Cir. 2014) (quoting Scruggs v. Carrier Corp., 688
F.3d 821, 826 (7th Cir. 2012)). Under the indirect method, the employee must
present evidence that (1) he was meeting the employer’s legitimate expectations;
(2) he suffered an adverse employment action; and (3) he was treated less favorably
than similarly situated employees who did not request FMLA leave. See
Langenbach, 761 F.3d at 800 (citing Caskey v. Colgate-Palmolive Co., 535 F.3d 585,
592 (7th Cir. 2008)).
The United States Court of Appeals for the Seventh Circuit has consistently
held that “the adverse action giving rise to an FMLA retaliation claim” must be
“materially adverse.” Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009). “Materially
adverse actions are not limited to employment-related activities but include any
actions that would dissuade a reasonable employee from exercising his rights under
the FMLA.” Breneisen, 512 F.3d at 979 (citing Burlington N. & Sante Fe Ry. v.
White, 548 U.S. 53, 57 (2006)); see also Thomas v. Potter, 202 F. App’x 118, 119 (7th
Cir. 2006) (applying Title VII’s analogous materiality requirement). According to
the Seventh Circuit, a reassignment that does not affect the employee’s pay or
promotion opportunities ordinarily does not constitute a material adverse
employment action. See Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th
A reassignment, however, may be material if the employee presents evidence
that his employer “sought to exploit a ‘known vulnerability’ by altering [his] work
schedule upon return from FMLA leave.” Langenbach, 761 F.3d at 799–800 (citing
Porter v. City of Chicago, 700 F.3d 944, 955 (7th Cir. 2012); Washington, 420 F.3d at
662); see also Thomas, 202 F. App’x at 119; Koty v. Zaruba, No. 15 C 2600, 2017
U.S. Dist. LEXIS 152207, at *33–34 (N.D. Ill. Sept. 19, 2017); Wink v. Miller
Compressing Co., Case No. 14-CV-367, 2015 U.S. Dist. LEXIS 70491, at *19–20
(E.D. Wis. June 1, 2015). For example, the Seventh Circuit determined that a
reasonable jury could conclude that the Illinois Department of Revenue set out to
exploit a known vulnerability of its former employee, Chrissie Washington, when it
altered her work schedule after she returned from unpaid leave. Washington, 420
F.3d at 662–63. Despite knowing that Ms. Washington needed a flexible schedule so
that she could care for her disabled son, the Department reassigned her to a
position with a standard 9-to-5 schedule. This scheduling change resulted in Ms.
Washington having to exhaust all of her vacation and sick leave before she found a
new supervisor who allowed her to work from 7:00 a.m. to 3:00 p.m..
Here, Mr. Goad has failed to demonstrate that his placement on the bottom of
the seniority list constituted a materially adverse employment action. The
undisputed facts show that this reassignment did not result in “a decrease in wage
or salary, a less distinguished title, a material loss of benefits, [or] significantly
diminished material responsibilities.” Porter, 700 F.3d at 954. Mr. Goad claims that
the increase in swing shifts caused him to be sleep deprived and to be sick so often
that he had to take unpaid leave. But he has not provided any evidence to suggest
that he was more vulnerable than the average person to lack of sleep, let alone that
the County was aware of such vulnerability and sought to exploit it. See Koty, 2017
U.S. Dist. LEXIS 152207, at *33–34 (denying ADA retaliation claim where
employee was reassigned to the midnight shift upon his return from leave because,
“[w]hile losing sleep is certainly an annoyance, the schedule change does not rise to
the level of an adverse action”). This case is therefore distinguishable from
Accordingly, any effects Mr. Goad suffered from being placed on the bottom of
the seniority list do not rise to the level of harm sufficiently serious to dissuade a
reasonable employee to forego exercising his rights under the FMLA. See
Burlington N., 548 U.S. at 68 (adopting materiality standard articulated by the
Seventh Circuit in Washington). The County is therefore entitled to summary
judgment on Mr. Goad’s FMLA retaliation claim.3
C. Whether Milwaukee County is entitled to summary judgment on
Mr. Goad’s ADAAA claim
Mr. Goad also claims that the County discharged him because he had, or was
perceived to have, a disability. Pl.’s Br. 18–19.
“The ADA makes it unlawful for an employer to discriminate against a
‘qualified individual on the basis of disability.’” Severson v. Heartland Woodcraft,
Inc., 872 F.3d 476, 480 (7th Cir. 2017) (quoting 42 U.S.C. § 12112(a)). “A plaintiff
claiming disparate treatment in violation of the ADA can rely on two different
methods of proof to survive a summary judgment motion.” Bunn v. Khoury Enters.,
753 F.3d 676, 683 (7th Cir. 2014). Mr. Goad has not identified any similarly
situated co-worker. Thus, it appears he is proceeding under the direct method of
To establish disparate treatment via the direct method, the employee must
show: (1) that he is disabled within the meaning of the Act; (2) that he is qualified to
perform the essential functions of the job with or without accommodation; and
Because Mr. Goad has failed to establish the second requirement of an FMLA
retaliation prima facie case, the Court does not need to address whether the County
acted with retaliatory intent when it reduced his seniority.
(3) that he has suffered an adverse employment action because of his disability.
Bunn, 753 F.3d at 683 (citing Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1127
(7th Cir. 2006)). An employee survives a motion for summary judgment only if he
presents “the court with evidence that, if believed by a trier of fact, would establish
all three elements of his claim.” James v. Hyatt Regency Chi., 707 F.3d 775, 782 (7th
Mr. Goad has failed to provide sufficient evidence from which a reasonable
jury could conclude that the County discriminated against him because he had, or
was regarded to have, a disability. For one, Mr. Goad has not produced any evidence
to satisfy the first two elements of an ADAAA claim. He vaguely claims to have
suffered from “swing shift syndrome” but has not provided any evidence to support
this allegation. Moreover, none of the circumstantial evidence Mr. Goad has
presented is sufficient to create a genuine issue of fact as to whether he was
terminated on account of a disability.
Mr. Goad claims in his declaration that he told Mr. Moore, the human
resources manager assigned to the facilities division, that he was sleep-deprived,
anxious, and frequently ill from having to work so many swing shifts. See
Declaration of Neal Goad ¶¶ 14–15, ECF No. 32. But this claim directly contradicts
Mr. Goad’s deposition testimony, in which he testified that he did not tell anyone at
the County about any of his medical conditions. See Ex. 3 at 13.
Mr. Goad also indicates that Mr. Moore and Mr. Waszak knew he was getting
help from the Employee Assistance Program prior to the mandatory referral. While
true, this fact does not establish that the County knew Mr. Goad had a medical
condition, let alone a disability within the meaning of the ADAAA. The County’s
Employee Assistance Program was used to address a wide range of workplace
issues. Mr. Goad has not provided any evidence that he told Mr. Moore or Mr.
Waszak that he was seeking mental health treatment through the program.
To further support his disparate treatment claim, Mr. Goad points out that
the mandatory referral to the Employee Assistance Program required him to seek
treatment and that this referral formed part of the basis for discharge. Although the
referral letter did use the term “treatment,” the referral was clearly designed to
address Mr. Goad’s behavioral issues and conflicts with others. See Ex. 12 at 5–6.
Treatment in this sense simply meant that Mr. Goad had to attend counseling
sessions and comply with the provider’s recommendations. The letter did not
reference any medical condition. Consequently, Ms. Buechel’s listing of the
mandatory referral under the category of “prior discipline,” see Ex. 13, does not
suggest that Mr. Goad was disciplined for having a disability. Rather, this reference
accurately captured Mr. Goad’s ongoing workplace issues with supervisors, coworkers, and clients.
Finally, Mr. Goad claims that the encounter with Mr. Dailey was a pretext
for a discriminatory discharge. Mr. Goad asserts that, during the investigation into
that incident, Mr. Waszak asked him what medications he was taking. See Goad
Decl. ¶ 37. He further asserts that the length of the investigation—approximately
seven weeks—creates suspicion that the County was using that time to devise a
non-discriminatory reason for his discharge.
Mr. Goad’s pretext argument is unavailing. The disciplinary proceedings
demonstrate one inescapable conclusion: Mr. Goad was discharged due to his
history of workplace violations. See Ex. B. The violent encounter with Mr. Dailey
was merely the final straw.
Because Mr. Goad has not produced evidence from which a reasonable jury
could conclude that he was discharged because of his disability, the County is
entitled to summary judgment on his ADAAA claim.
For all the foregoing reasons, the Court finds that the County is entitled to
summary judgment on Mr. Goad’s FMLA retaliation and ADAAA claims. The
County is not, however, entitled to summary judgment on Mr. Goad’s FMLA
interference claim. Its motion will therefore be granted in part and denied in part.
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s Motion
for Summary Judgment, ECF No. 24, is GRANTED in part and DENIED in part,
as stated herein.
Dated at Milwaukee, Wisconsin, this 21st day of March, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge
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