Buck Jr. v. Mercury Marine

Filing 38

ORDER signed by Judge Pamela Pepper on 12/22/2017 GRANTING 18 Defendant's Motion for Summary Judgment. (cc: all counsel) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH E. BUCK, JR.,
Plaintiff,
v.

Case No. 16-cv-1013-pp

MERCURY MARINE, A DIVISION OF
BRUNSWICK CORPORATION,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 18)
Plaintiff Joseph E. Buck, Jr. worked as a machinist at defendant
Mercury Marine’s Fond du Lac-based boat manufacturing facility from
September 2012 until August 2014. On August 25, 2014, the defendant
terminated the plaintiff. The plaintiff filed a complaint, alleging that the
defendant discriminated against him in violation of the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”), and that it interfered with
his rights under the Family & Medical Leave Act (“FMLA”). The defendant
moved for summary judgment on both claims, and during the briefing process,
the plaintiff conceded the ADAAA claim. The court will grant the defendant’s
motion for summary judgment as to both that claim and the FMLA claim, and
will dismiss the case.
I.

Jurisdiction

The plaintiff’s complaint alleged violations of two federal statutes, the
Americans with Disabilities Act Amendments Act of 2008 and the Family
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Medical Leave Act. Dkt. No. 1. Because the plaintiff sued under federal
statutes, this court has federal question jurisdiction under 28 U.S.C. §1331.
II.

Background
A.

Procedural History

On August 2, 2016, the plaintiff filed a complaint alleging two causes of
action. Dkt. No. 2. First, the plaintiff alleged that the defendant discriminated
against him based on his disability in the terms and conditions of his
employment, under the Americans with Disabilities Act Amendments Act of
2008, 42 U.S.C. §12101, et seq. Id. at 4. Second, the plaintiff alleged that the
defendant had unlawfully interfered with his rights under the Family Medical
Leave Act of 1993, 28 U.S.C. §825, et seq. Id. at 5. The defendant answered the
complaint on September 30, 2016. Dkt. No. 5.
The court held a scheduling conference on December 5, 2016, setting
discovery and dispositive motions deadlines. Dkt. No. 10. At that time, the
court also scheduled the final pretrial conference for December 20, 2017 and
the trial for January 8, 2018. Id.
The court had set a deadline of July 31, 2017 for filing summary
judgment motions, but on June 26, 2017, the defendant requested an
extension of that deadline. Dkt. No. 15. The court granted the motion, and gave
the parties a deadline of August 21, 2017 by which to file dispositive motions.
Dkt. No. 17. On August 21, 2017, the defendant timely filed a motion for
summary judgment, dkt. no. 18, along with proposed findings of fact, dkt. no.
20. The plaintiff filed his opposition brief on September 20, 2017, dkt. no. 22,
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but did not file responses to the defendant’s proposed findings of fact. The
defendant filed its reply brief, dkt. no. 25, and its response to the plaintiff’s
proposed findings of fact, dkt. no. 26, on October 4, 2017.
On that same day—October 4, 2017—the plaintiff filed an emergency
motion for leave to file his responses to the defendant’s proposed findings of
fact. Dkt. No. 28. Without opposition from the defendant, the court granted
that request. Dkt. No. 33. The court’s order allowed the defendant to file a reply
by the end of the day on December 11, 2017, but noted that, given the delay,
the court might not be able to rule on summary judgment before the January
8, 2018 trial date. Id. The defendant filed its reply in support of its proposed
factual findings on December 11, 2017. Dkt. No. 34.
On December 18, 2017, ahead of the December 20, 2017 final pretrial
conference, the parties filed a joint Civil Local Rule 7(h) expedited, nondispositive motion to convert the final pretrial conference to a status
conference. Dkt. No. 35. The court granted that motion, dkt. no. 36, and at the
status, orally informed the parties that it would be issuing this decision, dkt.
no. 37.
B.

Factual History

Joe Buck began working for defendant Mercury Marine as a
“Supplemental Tech” on September 24, 2012. Dkt. No. 26 ¶1. The defendant
transferred the plaintiff to first shift on November 12, 2012. Id. at ¶2. A little
over two months later, on January 21, 2013, the defendant transferred the
plaintiff to third shift (he’d not worked that shift before), and made him a
3

“regular Machinist Tech.” Id. at ¶3. Third shift lasted from 11:00 p.m. to 7:00
a.m. Id. The plaintiff remained on third shift as a Machinist Tech for nineteen
months, until he was terminated on August 25, 2014. Id. at ¶4. The defendant
admits that the plaintiff was a covered employee under the FMLA during his
employment, and that during the period at issue, the defendant employed at
least fifty employees within seventy-five miles of the plaintiff’s work site. Id. at
¶¶6-7.
From ninety days after his employment began until his termination, the
plaintiff was a member of the International Association of Machinists union. Id.
at ¶5. This meant that a contract governed some of the terms and conditions of
the plaintiff’s employment; the contract included provisions governing
employee attendance. Dkt. No. 27 at ¶¶8-9. The contract provided a list of
absences that would be excused with proper documentation, including
approved medical and FMLA leaves and absences for work-related injuries. Id.
at ¶9. The contract also stated that employees accruing six points in a calendar
year under the attendance provisions for unexcused absences would receive a
final written warning, and employees accruing eight points during the year
were subject to termination. Id. at ¶10.1
1.

May 28, 2014 Absence

On Monday, May 26, 2014, the plaintiff called his supervisor and asked
for a vacation day for his May 27, 2014 shift, because he was very upset about
having had to put his dog of thirteen and a half years to sleep that weekend.

1

The contract is docketed as an exhibit at Dkt. No. 18-2, pp. 1-3.
4

Dkt. No. 26 at ¶10. The plaintiff concedes that he did not tell his supervisor
how upset he was about losing his dog, or that he had not been able to sleep
since the dog had died. Id. The defendant granted the plaintiff the vacation day
for the May 27, 2014 absence, and did not assess any attendance points
against the plaintiff. Dkt. No. 27 at ¶36.
On May 27, 2014, the plaintiff called in before his May 28 shift began,
and left the following voicemail:
Hey Troy, Joe Buck here. Hey, if you get a chance, can you
please give me a call before the end of the night? I just – I’m
having a hard time with my dog, you know, putting her to
sleep. (Indiscernible) with me for 13 and a half years, and it’s
just – I’m having a really hard time. If you can call me, I
appreciate it. . . . All right, bye.
Dkt. No. 26 at ¶13. The plaintiff received a call back from the supervisor on
May 27, 2014—again, before the shift began; according to the plaintiff’s
September 17, 2017 proposed findings of fact, the plaintiff “told [the supervisor
during this call] that he had not slept for days and he could not work his May
28, 2014 shift.” Dkt. No. 23 at ¶15. According to his September 20, 2017
declaration, the plaintiff “explained [to the supervisor] that [he] was still unable
to sleep since the loss of [his] dog and [he] would not be able to work [his] May
28, 2014 shift.” Dkt. No. 24 at ¶17.
At his July 18, 2017 deposition, the plaintiff indicated that he had not
taped this call, dkt. no. 18-1 at p. 96 of the transcript, so there is no way to
know who said what to whom. The defendant argues that the plaintiff provided
no information about the identity of the supervisor to whom he spoke, and that

5

regardless, the plaintiff has not provided anything other than his own
testimony as to the contents of this call. Dkt. No. 26 at ¶14.
The plaintiff did not report to work for his May 28 shift and the
defendant assessed him an attendance point. Dkt. No. 27 at ¶39.
In his deposition, the plaintiff testified that he sought an appointment at
a clinic on May 28, 2014, because “[he] hadn’t slept in days.” Dkt. No. 18-1 at
p. 98 of the transcript. He explained:
[the clinic] tried to get me in there that afternoon (May 28)
before I was scheduled to work, but they didn’t have any
openings unless somebody canceled out. Otherwise, they
said, you know, go to the ER.
And I said, well, I’m not going to go [to] the ER for
something that has to with – it’s not an emergency thing. It’s
just something I haven’t been able to sleep in days and
couldn’t understand why.
Id. at pp. 98-99 of the transcript.
The plaintiff worked his May 29 shift (which began at 11:00 p.m. on May
28 and ended at 7:00 a.m. on May 29) and, after working, visited a clinic that
afternoon. Dkt. No. 27 at ¶42. At the clinic, the plaintiff saw Nurse Practitioner
Theresa J. Baseley, who gave the plaintiff some laxatives and a sleeping pill.
Dkt. No. 27, ¶43; Dkt. No. 24-9 at 1. The note from the nurse practitioner
asked the defendant to excuse his absence on May 28. Dkt. No. 26, ¶19. The
note read:
This is to certify that Joseph was seen in the clinic on
5/29/2014. Please excuse Joseph from missed work May
28th.

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REMARK: Please excuse missed work on May 28th. Joe
was in the clinic for evaluation of situational insomnia.
Treatment has been initiated.
Dkt. No. 24-9.
The plaintiff provided the defendant the note “that very same day, the
29th,” when he came in to work that night. Dkt. No. 18-1 at p. 116 of the
transcript. The plaintiff contends that his supervisor and an HR representative
initially told him that the note was acceptable and that the absence would be
excused, dkt. no. 23 at ¶21, but says that he learned the following week that
the note had not been accepted, and that he was supposed to go back to the
health care provider to have the note back-dated to May 28, 2017 (the date he
was absent), dkt. no. 23 at ¶22.
Around June 3, 2014, the plaintiff had a meeting with his supervisor.
Dkt. No. 26 at ¶39. At that meeting, he received a final written warning, dated
May 30, 2014 (the day after his visit to the clinic). Id. The warning advised the
plaintiff that between February 7, 2014 and May 28, 2014, he had been absent
on eight occasions, and had accrued 6.5 absence points. Dkt. No. 24-4. The
warning informed the plaintiff that if he reached 8 points, his employment
would be terminated. Id. The 6.5 absence points included 1 point for the May
28, 2014 absence. Id.
2.

August 20—25, 2014 absences

The plaintiff injured his back at work on July 15, 2014. Dkt. No. 26 at
¶44. He indicates that he told his supervisor about this injury, but when the
supervisor suggested that he go to occupational health, the plaintiff “declined,
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stating that he only had an hour and a half left on his shift and he just needed
to slow down.” Id.
That same day, after his shift ended, the plaintiff began to suffer severe
back spasms, and asked his girlfriend to take him to the doctor. Id. at ¶45. He
saw a doctor about 1:30 p.m. on the 15th, and she put him on bed rest. Id. at
¶46. The plaintiff says that he immediately provided the doctor’s note to the
defendant; the note explained the injury, and asked the defendant to excuse
the defendant from work July 15 through July 17. Id. The plaintiff alleges that
the defendant did accept the note, “but registered his absences as DMAs,
which used up his entire allotment for the year.” Id. The plaintiff explains that
“DMA” stands for “documented medical absence.” Id. at ¶63. In the complaint,
the plaintiff alleged that the defendant recorded this three-day absence as three
events, rather than one. Dkt. No. 1 at ¶15. In his proposed findings, the
plaintiff asserts that the defendant “should have counted those missed days as
otherwise excused medical leave of absence under Sec. 5.12(2) of the [collective
bargaining agreement] or as FMLA leave, and those absences should have been
removed from Plaintiff’s absence record before his termination because the
worker’s compensation claim had been activated, which encompassed those
absences.” Dkt. No. 23 at ¶63.
On August 20, 2014, the plaintiff re-injured his back at work. Dkt. No.
26 at ¶64. This time he went to the occupational health unit, but they were
unable to treat him because his back was swollen. Id. at ¶65. The occupational
health unit made an appointment for the plaintiff at Aurora Health Care at
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approximately 1:30 p.m. on August 20, 2014. Id. at ¶66. There, he saw a
physician’s assistant, Stephen Kennebeck, who diagnosed him with “a work
place injury of low back strain and ruled out a return to work for at least five
days and recommended bed rest.” Id. at ¶67.
The plaintiff testified at his deposition that after making the diagnosis,
the physician’s assistant told the plaintiff that he would send the confirmation
to the defendant, so that the plaintiff would not have to take it in to work. Dkt.
No. 18-1 at pp. 142-143 of the transcript. The plaintiff alleged, however, that
the defendant “called back” and said that the plaintiff had to drive to the
defendant and hand-deliver the confirmation to the person on first shift at
occupational health. Id. at p. 143 of the transcript. The plaintiff alleges that the
defendant questioned the plaintiff about needing five days off from work,
asking him how he would be able to go to the doctor or get medication; the
plaintiff responded that his girlfriend could help him. Dkt. No. 23 at ¶71.
The plaintiff asserts that for each of the five days following August 20,
2014, the defendant’s occupational health unit contacted the plaintiff’s health
care provider, asking if the plaintiff could return to work. Id. at ¶72. In turn,
the plaintiff’s health care provider asked the plaintiff if the plaintiff felt he could
return to work; the plaintiff said no each day until the fifth day (August 25,
2014), when the plaintiff said yes, but only with light duty restrictions. Dkt. No.
26 at ¶73.
When the plaintiff got back to work on August 25, 2014, he had a text
from his supervisor asking him to meet “in the place where [the supervisor]
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usually held meetings].” Id. at ¶74. When the supervisor met with the plaintiff,
the supervisor walked the plaintiff out of the building, telling the plaintiff that
he had been terminated for reaching eight unexcused absences as of August
18, 2014. Id.
3.

Other Assessed Absences

The plaintiff alleges that he was “wrongly assessed an absence point” on
March 8, 2012. Dkt. No. 23 at ¶9. The defendant speculates that perhaps the
2012 date is a typographical error, and that the plaintiff meant March 8, 2014.
Dkt. No. 26 at ¶9, n.1. Assuming that 2014 is the relevant year—the plaintiff
asserts that the defendant should not have assessed him this point under the
collective bargaining agreement because he was told not to show up by a
supervisor, given that an employee with more seniority had taken the shift.
When that employee failed to show, the plaintiff got an absence point. He filed
a grievance with the union over that particular point; the union did not win the
grievance. Dkt. No. 23 at ¶9.
The plaintiff indicates that, according to the defendant, the plaintiff
called in saying that he’d be late to work his June 30, 2014 shift, and that the
defendant assessed him half a point for showing up late. Id. at 40. The plaintiff
asserts that the defendant produced no proof that the plaintiff called in late, id.
at ¶¶41-42, but argues that even if he was late on that date, his “situational
insomnia” may have played a role in his being late, id. at ¶43.
The plaintiff alleges that he was “wrongly charged with a four-hour late
penalty” when his supervisor approved him to come to work at 3:00 a.m. on
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August 18, 2014 and “work four hours into the next first shift to cover for an
absent first shift employee, which would have still given him an 8 hour shift.”
Id. at ¶52.
In short, the plaintiff asserts that by August 18, 2014, the defendant had
wrongly assessed him 2 absence points for the calendar year 2014.
4.

Evidence Documenting Absences

The defendant says that it terminated the plaintiff “because he received
eight attendance points, thereby authorizing termination under the applicable
collective bargaining agreement.” Dkt. No. 19 at 2. The plaintiff responds that
“[o]nce the attendance points wrongly assessed against Plaintiff . . . are
removed from his attendance record, he should not have been terminated
under the terms of the collective bargaining agreement. Thus, Plaintiff has
established that Defendant unlawfully interfered with his FMLA rights.” Dkt.
No. 22 at 13.
The plaintiff attached a chart to his declaration in opposition to the
motion for summary judgment. Dkt. No. 24-3 at 5. There is no title or heading
on the chart. It contains numerous hand-written notes, in different
handwriting styles and different inks. It appears to show, among other things,
the plaintiff’s absences for 2014, with codes next to the absence dates (and, in
some instances, explanations), for the period from February 17, 2014 through
August 25, 2014. Id. The codes include “ILL,” “UA,” “LT(W),” “DMA,” “(W), LE,
(Z),” and “NAB.” Id. There is no key to explain what the codes mean. The court
cannot tell which of these absences the defendant “excused,” for which it
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assessed points under the collective bargaining agreement, or for which (if any)
the defendant granted the plaintiff FMLA leave. The parties have not provided
any documentation indicating how much FMLA leave the defendant granted
the plaintiff in 2014 (or if they did, the court can’t identify it).
On the chart, someone has hand-written, in red ink, numbers next to the
explanations. If one assumes—a bit of a leap—that the numbers represent
absence points assessed under the collective bargaining agreement, the
numbers do not add up to 8. The number 5.5 appears next to February 17,
2014; the number 6.5 appears next to February 19, 2014. If one adds those
numbers, it would appear that only two months into the 2014 calendar year,
the plaintiff had accrued 12 absence points—that can’t be right, because the
collective bargaining agreement provides for termination at 8 points. If the
court ignores those two notations, and starts on the next line—the March 8,
2014 absence, noted “No Call No Show—TDS,” the court sees the number 1.
The following line—an absence for March 28, 2014—is noted “Called going to
be late. AZ.” Next to that notation is the number 1.5. The court thinks—
although it can’t be sure—that this number represents the one point assessed
for the March 8 absence, plus a half point assessed for the March 27 absence.
If one tracks the remaining red numbers on the chart in that way—as a record
of the accretion of half or full points for each succeeding absence—one reaches
the total number of 8 on August 18, 2014. If the court is reading the chart
correctly, it appears that between March 8, 2014 and August 18, 2014, the

12

plaintiff accrued the 8 points mandating termination under the collective
bargaining agreement.
The parties appear to agree that, whether the defendant appropriately
assessed all 8 points or not, the defendant recorded the plaintiff as having
reached the 8-point mark on August 18, 2014. The termination letter is dated
August 25, 2014. Dkt. No. 18-2 at 12.
III.

Analysis

The plaintiff originally alleged two causes of action—discrimination under
the ADAAA, and interference with his rights under the FMLA. On the last page
of his brief in opposition to the motion for summary judgment—over a year
after the date on which he filed the complaint—the plaintiff stated the
following: “Plaintiff concedes his disability discrimination claim.” Dkt. No. 22 at
13.
While this statement is less clear and specific than the court might wish,
the court construes it to mean that the plaintiff does not oppose the court
granting summary judgment in the defendant’s favor on the plaintiff’s first
claim for relief, labeled “ADAAA Discrimination.” Dkt. No. 3 at 4. The court will
grant summary judgment in the defendant’s favor on that first claim, and
analyzes only the plaintiff’s FMLA claims.
A.

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure allows a court to grant
summary judgment where “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
13

law.” Fed. R. Civ. P. 56(a). Material facts are those “facts that might affect the
outcome of the suit[,]” and a dispute is “genuine” “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a motion for summary judgment, a court “construe[s]
all factual disputes and draw[s] all reasonable inferences in favor of the nonmoving party.” Golla v. Office of the Chief Judge of Cook Cty., Ill., 875 F.3d
404, 407 (7th Cir. 2017) (citing Cole v. Bd. of Trs. Of N. Ill. Univ., 838 F.3d
888, 895 (7th Cir. 2016). The court’s “‘favor toward the nonmoving party does
not extend to drawing inferences that are supported by only speculation or
conjecture.’” Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 503 (7th Cir. 2017)
(quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)).
“Summary judgment is not a time to be coy: conclusory statements not
grounded in specific facts are not enough to stave off summary judgment.”
King v. Ford Motor Company, 872 F.3d 833, 840 (7th Cir. 2017) (internal
quotations and citations omitted).
At this stage, the court’s task is not to “weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. While it is inappropriate for the court to
evaluate witness credibility, Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.
2008), a court appropriately grants summary judgment “if [plaintiff] cannot
present sufficient evidence to create a dispute of material fact regarding any
essential element of [his] legal claims on which [he] bears the burden of proof.”
14

Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 694 (7th Cir.
2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
B.

Standard for FMLA Claims

The FMLA “entitles eligible employees to take up to 12 work weeks of
unpaid leave per year[,]” including for “‘(D) the employee’s own serious health
condition when the condition interferes with the employee’s ability to perform
at work.’” Coleman v. Court of Appeals of Md., 566 U.S. 30, 34 (2012) (quoting
29 U.S.C. §2612(a)(1)). In bringing a claim under the FMLA, “[p]laintiffs bear
the burden of proving their eligibility for the FMLA’s protections[.]” King v. Ford
Motor Company, 872 F.3d 833, 840 (7th Cir. 2017) (citing Simpson v. Office of
Chief Judge of Circuit Court of Will Cty., 559 F.3d 706, 712 (7th Cir. 2009)).
The FMLA prohibits an employer from interfering with, restraining or
denying an employee’s exercise or attempt to exercise any right provided under
the FMLA. 29 U.S.C. §2615(a)(1); Arrigo v. Link, 836 F.3d 787, 794 (7th Cir.
2016).
To prevail on a claim of FMLA interference, the plaintiff must show that
(1) he was eligible for the FMLA protections; (2) his employer
was covered by FMLA; (3) he was entitled to take leave under
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.
Curtis v. Costco Wholesale Corp., 807 F.3d 215, 223 (7th Cir. 2015) (quoting
James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013)).
The defendant concedes that the plaintiff can demonstrate the first two
factors—that the plaintiff was an eligible employee and that the defendant was
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covered by the FMLA. Dkt. No. 19 at 7-8. The defendant disputes (a) that the
plaintiff was entitled to take FMLA leave; (b) that the plaintiff provided
sufficient notice of his intent to take FMLA leave; and (c) that the defendant
denied the plaintiff FMLA benefits to which he was entitled.
C.

Application of the Law to the Facts

Despite the plaintiff’s discussions of other absences which resulted in the
defendant assessing absence points against him under the collective
bargaining agreement, his brief opposing summary judgment discusses only
two incidents—the “May 28, 2014 Absence,” dkt. no. 22 at 2, and the “August
20, 2014 Back Injury,” dkt. no. 22 at 4. Below, the court analyzes whether the
plaintiff has provided sufficient evidence to raise disputes of material fact
regarding whether either of these two incidents constituted interference with
his rights under the FMLA.
1.

The May 28, 2014 Absence

The court begins by discussing what this part of the plaintiff’s claim is
not about. The plaintiff spends a lot of time discussing the absence points
system under the collective bargaining agreement between the union and the
defendant. As far as the court can tell, the plaintiff believes that the defendant
miscalculated (or deliberately wrongly assessed) absence points under the
collective bargaining agreement. He states that if the defendant had not
wrongly assessed/miscalculated certain points, he would not have accrued 8
points as of August 18, 2014—the 8 absence points that led the defendant to
terminate him under that agreement.
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If the plaintiff believed that the defendant terminated him in violation of
the collective bargaining agreement, or that the defendant violated that
agreement in calculating his absence points, the plaintiff had the ability to ask
the union to pursue a grievance against the defendant. He knew how to do
that—he did it for the March 8, 2014 absence point he argues was wrongfully
assessed. He indicates that he “attempted” to do it for the May 28, 2014
absence, “but his union told him it was not worth filing the grievance.” Dkt. No.
23 at ¶25. Whether following the grievance procedure was “worth it” or not, the
fact that the plaintiff was not successful in pursuing his grievances through
the union does not convert those grievances into an FMLA claim.
The plaintiff has chosen to sue the defendant under the FMLA. That is
the only claim before the court—whether the defendant interfered with the
plaintiff’s rights under the FMLA. Discussion of the points system under the
collective bargaining agreement is a red herring; to mix metaphors, it muddies
the waters of the May 28, 2014 absence claim. The court will not focus on the
assessment or calculation of points, but will focus solely on the elements of the
FMLA as they relate to the May 28, 2014 absence.
The plaintiff argues that the defendant should have treated the May 28,
2014 absence as a medical absence (rather than assessing an absence point),
because it was the result of “situational insomnia,” brought about by a
combination of working third shift, working a lot of overtime and suffering from
emotional distress over the passing of his dog. He asserts that the defendant

17

never gave him notice of, or educated him about, his rights under the FMLA.
Dkt. No. 22 at 10-11.
a.

The plaintiff has not produced sufficient
evidence to show that he was entitled to FMLA
leave for the May 28, 2014 absence as a matter
of law.

The FMLA allows an employee to take leave for a “serious health
condition” that renders the employee “unable to perform the functions” of his
job. 29 U.S.C. §2612(a)(1)(D). While the FMLA itself “provides little guidance on
the meaning of the phrase ‘serious health condition,’ the Department of Labor
issued regulations addressing the meaning of this phrase pursuant to an
express congressional delegation of authority to the Secretary of Labor to
promulgate regulations ‘necessary to carry out’ the FMLA.” Haefling v. United
Parcel Service, Inc., 169 F.3d 494, 498 (7th Cir. 1999) (quoting 29 U.S.C.
§2654). Under those regulations, a “serious health condition . . . means an
illness, injury, impairment or physical or mental condition that involves
inpatient care as defined in §825.114 or continuing treatment by a health care
provider as defined in §825.115.” 29 C.F.R. §825.113(a).
For the plaintiff to establish that he was entitled to leave under the FMLA
for the May 28, 2014 absence, the plaintiff needed to show that he suffered
from a “serious health condition” that involved “inpatient care” or “continuing
treatment by a health care provider as defined in §825.115.” 29 C.F.R.
§825.113(a). Section 825.115 defines “serious health condition.” There are
several ways in which a condition may qualify as “serious” for FMLA purposes.

18

The condition may necessitate a period of incapacity and subsequent
treatment:
§825.115(a) Incapacity and treatment. A period of
incapacity of more than three consecutive, full calendar
days, and any subsequent treatment or period of
incapacity relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days of the
first day of incapacity . . . by a health care provider . . . .
29 C.F.R. §825.115(a)(1). The term “incapacity” is also defined as the “inability
to work, attend school or perform other regular daily activities due to the
serious health condition, treatment therefore, or recovery therefrom.” 29 U.S.C.
§825.113(b).
The health condition may be “chronic”:
§825.115(c) Chronic condition. Any period of incapacity or
treatment for such incapacity due to a chronic serious
health condition. A chronic serious health condition is one
which:
(1) Requires periodic visits (defined as at least twice a
year) for treatment by a health care provider, or by a nurse
under direct supervision of a health care provider;
(2) Continues over an extended period of time (including
recurring episodes of a single underlying conditions); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
29 C.F.R. §825.115(c).
The health condition may be “permanent,” or “long-term,” if it is a
condition “for which treatment may not be effective.” 29 C.F.R. §825.115(d). For
such a condition, the employee “must be under the continuing supervision of,
19

but need not be receiving active treatment by, a health care provider;” the
regulation provides examples like Alzheimer’s and a severe stroke. Finally, the
condition may be one that requires “multiple treatments;” the regulation refers
to restoration after a surgery or injury, or conditions creating long-term
incapacity and multiple treatments, such as cancer or kidney disease. 29
C.F.R. §825.115(e).
If the plaintiff suffered from insomnia that caused him to be
incapacitated more than three full, consecutive calendar days, and caused him
to have two or more treatment sessions within the thirty days thereafter, his
condition arguably would have been a “serious health condition” under
§825.115(a). If he suffered from insomnia that required him to go to a doctor or
nurse at least twice a year, and that continued over an extended period of time,
his condition arguably would have been a “serious health condition” under
§825.115(c). But the question of “[w]hether an illness or injury constitutes a
‘serious health condition’ under the FMLA is a legal question that an employee
may not sidestep in the context of summary judgment merely by alleging his
condition to be so.” Haefling, 169 F.3d at 499. And therein lies the plaintiff’s
problem.
The plaintiff contends that he
has shown that he suffered from a chronic serious health
condition, situational insomnia, that was related to his
working third shift together with the 218 hours of
overtime he had worked through the mid-July 2014.
[PFOF ¶11] Plaintiff was treated for situational insomnia
after being incapacitated for both his May 27, 2014 (took
vacation time) and May 28, 2014 (called in sick) shifts as
well as the two prior weekend days when he was not
20

scheduled to work, and that treatment continued for at
least 45 days. [PFOF ¶¶15-17]
Dkt. No. 22 at 9.
The only proof in the record that the defendant had a “chronic” condition
“related to his working third shift together with the 218 hours of overtime he
had worked through” mid-July 2014, or that he obtained treatment that
“continued for at least 45 days,” is the plaintiff’s own word, in his deposition
testimony and in his declaration. See Dkt. No. 23 at ¶11 (citing dkt. no. 18-1 at
9; dkt. no. 24 at ¶22.); at ¶15 (citing dkt. no. 18-1 at 28; dkt. no. 24 at ¶17); at
¶16 (citing dkt. no. 18-1 at 32; dkt. no. 24 at ¶19-21). The plaintiff’s
declaration is what is known as a “self-serving affidavit.” Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004). A self-serving affidavit
can defeat a motion for summary judgment, if it is “supported by facts in the
record.” Id. (citing Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). This
plaintiff’s self-serving affidavit is not supported by any other facts in the record.
The record contains a letter dated May 29, 2014 from Theresa J. Baseley,
a nurse at the Aurora Health Center North in Fond du Lac. Dkt. No. 18-2 at 8.
Nurse Baseley reported that the plaintiff was “seen” in the clinic on that date,
“for evaluation of situational insomnia.” Id. She asked that he be excused from
work for that day, and indicated that “[t]reatment has been initiated.” Id.
(emphasis added). On April 10, 2017, the plaintiff filed his expert witness
disclosures—not in connection with the summary judgment pleadings, but as
required by the court’s December 5, 2016 scheduling order (dkt. no. 10). Dkt.
No. 14. The plaintiff listed Nurse Baseley as an expert witness, stating that she
21

“w[ould] testify as to a note she wrote asking that Plaintiff be excused from
work he missed on May 28, 2013. She will also testify as to Plaintiff’s progress
and prognosis.” Dkt. No. 14 at 3. The plaintiff has not provided any expert
witness report from Nurse Baseley, nor has he provided progress reports,
prognoses or any evidence that he ever saw Nurse Baseley again.
At his deposition, the plaintiff acknowledged that he did not go to the
emergency room for treatment of the insomnia that kept him from work on May
28, 2014, nor did he think such care was necessary. Dkt. No. 18-1 at 28 (“I’m
not going to go [to] the ER for something that has to with – it’s not an
emergency thing.”). The record contains no evidence that the plaintiff sought,
or obtained, medical attention for the insomnia, other than his one visit to
Nurse Baseley—no prescriptions, no treatment reports, nothing to support the
statements in his declaration.
Even viewing the evidence in the light most favorable to the plaintiff, the
court cannot conclude that the plaintiff has presented evidence sufficient to
raise a dispute as to an issue of material fact. The note from Nurse Baseley
indicates only that plaintiff should be excused from work on May 28, 2014—it
does not state that he was unable to perform the functions of his job. It
references only one day—May 28, 2014. Even if the court were to credit the
plaintiff’s assertion that he took off the preceding day, May 27, 2014, because
of the insomnia (despite asking for a vacation day that day, and not mentioning
his dog’s passing or the insomnia), the plaintiff missed, at most, two
consecutive days due to his insomnia. The nurse’s letter does not categorize the
22

insomnia as chronic, or say whether she expected it to continue. There is no
evidence to support the plaintiff’s statement that he had been suffering from
intermittent, shift-related insomnia for months.
The plaintiff has demonstrated only that he missed one—possibly two—
days of work because of “situational” insomnia; even accepting that he missed
two days, the evidence is not sufficient as a matter of law to raise a question of
fact about whether the plaintiff’s May 28, 2014 absence was the result of a
serious health condition that rendered him unable to perform daily functions.
b.

The plaintiff has not produced sufficient
evidence to show that he provided the defendant
with sufficient notice of the May 28, 2014
absence as a matter of law.

Because the court finds that the plaintiff has not presented sufficient
evidence with regard to the third element of an FMLA interference claim, it
need go no further in its analysis of the May 28, 2014 absence. The court
notes, however, that the plaintiff could not demonstrate the fourth element of
an FMLA interference claim—that he gave sufficient notice to his employer of
his intent to take FMLA leave.
The regulations promulgated in support of the FMLA explain what an
employer must do to let employees know about their rights under the FMLA. 29
C.F.R. §825.300(a)(1) requires employers to post on the premises—where
employees can see it—a notice explaining the provisions of the FMLA. Section
825.300(a)(3) also requires the employer to put the information in employee
handbooks or other written guidance, or by giving the employee a written
notice upon hiring (on paper, or electronically). When an employee asks for
23

leave under the FMLA, or “when the employer acquires knowledge that an
employee’s leave may be for an FMLA—qualifying reason,” the employer has to
notify the employee of his eligibility for FMLA leave within five business days.
29 C.F.R. §825.300(b)(1). The regulations specify that the notice must contain
certain information, and if the employee isn’t eligible for FMLA leave, the notice
has to explain why. 29 C.F.R. §825.300(b)(2).
The plaintiff alleged in the complaint that the defendant never “notified
Plaintiff that he could take FMLA leave for his own serious health condition
absences or offered him FMLA leave.” Dkt. No. 1 at ¶25. In his proposed
findings of fact, the plaintiff stated that “in May 2014,” he “heard from a
coworker . . . who had applied for FMLA leave for absences for eye surgery and
was going to get his absences excused and get paid for them.” Dkt. No. 23 at
¶29. He stated that he “then heard from this coworker that because he had
only missed two days due to his surgery, he was not going to get FMLA leave.”
Id. at ¶30. (In his deposition, the plaintiff indicated that the co-worker had told
the plaintiff that the co-worker was going to take three days off for the surgery,
but that because the co-worker “came back and worked the third day,” the
defendant had denied the co-worker the FMLA leave. Dkt. No. 18-1 at p. 26 of
the transcript.) The plaintiff asserts that this conversation was the first he’d
heard of the FMLA, dkt. no. 23 at ¶32; that the defendant did not ever give him
any information about the FMLA, id. at ¶33; that he was not “provided” with a
copy of the defendant’s FMLA policy, id. at ¶34; and that he “never read any of
the posters on bulletin boards in Defendant’s factory,” id. at ¶35.
24

The defendant admits for the purposes of summary judgment that it
didn’t provide the plaintiff directly with information about his FMLA rights, or
provide him with a copy of its FMLA policy (assuming it had a written policy).
Dkt. No. 26 at ¶¶33, 34. That admission does not mean that the defendant
committed a technical violation of the FMLA—it appears that the defendant did
have posters up on its premises, as required by §825.300(a)(1) (although the
plaintiff did not read them). And the regulations require the defendant to
provide the plaintiff with the required notices only “when the employer acquires
knowledge that an employee’s leave may be for an FMLA—qualifying reason.”
There is a factual question as to whether the defendant committed a technical
violation of the FMLA regulations.
But that factual question must be material in order to survive summary
judgment. Even if a plaintiff can demonstrate a technical violation of the FMLA,
the plaintiff still must prove that the violation prejudiced him in order to prove
an interference claim. Ridings v. Riverside Medical Center, 537 F.3d 755, 764
(7th Cir. 2008) (citation omitted). Again, it is not entirely clear, but it appears
that the plaintiff raises the defendant’s alleged technical failures to show why
he did not ask for FMLA leave. The regulations do not require a plaintiff to
request FMLA leave; the employer must provide the notifications “when the
employer acquires knowledge that an employee’s leave may be for an FMLA—
qualifying reason.” 29 C.F.R. §825.300(b)(1).
The plaintiff asserts that in May of 2014, he was suffering from insomnia
induced by having to work third shift (to which he was not accustomed) and
25

working a large number of overtime hours, and that this was exacerbated by
the emotional distress of losing his dog. Dkt. No. 23 at ¶¶11-12. The plaintiff
asserted that he called his supervisor on Monday night, May 26, 2014, and
asked for a vacation day. Id. at ¶10. He says that the reason he asked for the
vacation day was that he was upset about the loss of the dog, but he concedes
that he did not tell the supervisor how upset he was, or that he had not been
able to sleep since the dog had passed. Id. So as of May 26, 2014, all the
defendant knew was that the plaintiff had asked for a vacation day.
The plaintiff called his supervisor the next night—May 27, 2014. This call
was taped; in it, the plaintiff asked his supervisor to give him a call before the
end of the night if the supervisor got a chance, stating that he was having a
hard time with having had to put the dog to sleep. Id. at ¶13. The plaintiff
mentions more than once in the brief voice mail message that he was having a
hard time. He does not mention insomnia. Id. As discussed above, the plaintiff
avers—without any supporting evidence in the record—that when the
supervisor called him back, “Plaintiff told him that he had not slept for days
and that he could not work his May 28, 2014 shift.” Id. at ¶15.
Finally, on May 29, 2014, the plaintiff provided the defendant with the
note from Nurse Baseley, asking that his May 28, 2014 absence be excused
because he was being “evaluated for situational insomnia,” and saying that
treatment had been initiated. Id. at ¶¶18, 19.
The question, then, is whether the undisputed evidence shows that the
defendant had acquired knowledge that the plaintiff’s May 28, 2014 leave
26

might have been for an FMLA-qualifying reason—in other words, for a serious
health condition. The defendant had the following knowledge:
*

That the plaintiff had asked, on May 26, 2014, to take May 27,

2014 as a vacation day;
*

That on the night of May 27, 2014, the plaintiff left a voice mail

that he was having a hard time with the fact that he had to put his dog down;
*

That on May 29, 2014, the defendant received a medical note

indicating that the plaintiff had seen a nurse the day before to be evaluated for
“situational insomnia,” and that treatment had begun.
In addition, the plaintiff alleges that when his supervisor called him back
on May 27, 2014, he told the supervisor that he hadn’t slept for days.2
At most, the facts support a conclusion that the defendant knew that the
plaintiff was distraught over his dog, and that the plaintiff had indicated that
he had not “slept for days.” While it is possible that the plaintiff did have
intermittent situational insomnia that constituted a serious medical condition,
the information he provided the defendant did not indicate that. The plaintiff
did not notify his supervisor that he suffered from insomnia. He did not
The plaintiff stated in his opposition brief that he had put the defendant on
notice that “he had not been able to sleep in days, was incapacitated for two
work days (May 27 and May 28) and two weekend days, and sought treatment
on at least one occasion that resulted in continuing treatment over a period of
45 days.” Dkt. No. 22 at 9. The record does not support this assertion. There is
no evidence that the defendant knew the plaintiff had been “incapacitated” on
May 27, 2014; he asked for vacation leave that day, with no mention of the dog
or sleeplessness. There is no evidence, other than the plaintiff’s unsupported
declaration, that the defendant knew the plaintiff had been incapacitated for
two weekend days, or that the defendant knew that the plaintiff had had fortyfive days of treatment.
2

27

indicate that he had been diagnosed with insomnia. All he said was that he
hadn’t slept for days (without specifying how many), after which he provided a
note indicating that he’d been evaluated for “situational insomnia” and started
treatment.
The Seventh Circuit has held that when an employee gives an employer
notice that he is seeking FMLA leave, the notice “must succeed in alerting the
employer to the seriousness of the health condition.” de la Rama v. Ill. Dept. of
Human Serv’s, 541 F.3d 681, 687 (7th Cir. 2008) (citation omitted). Even a
doctor’s note is insufficient “if the note does not convey the seriousness of [the
plaintiff’s] medical condition.” Id. (citation omitted). The plaintiff asked for one
day of leave, because of his grief over his dog and the fact that he “hadn’t slept
for days,” and later provided a note saying that he’d been evaluated for a
situational event that had been treated. This evidence, even viewed in the light
most favorable to the plaintiff, was not sufficient to put the defendant on notice
that the plaintiff’s May 28, 2014 absence was occasioned by a “serious health
condition.”
For these reasons, the court will grant summary judgment in favor of the
defendant as to the May 28, 2014 absence.
2.

The August 20-25, 2014 Absences

The plaintiff missed five days of work from August 20 through 25, 2014,
after re-injuring his back. He spends less than one page in his brief in
opposition for summary judgment arguing that the defendant should have

28

granted him FMLA leave for that five-day absence. Dkt. No. 22 at 11-12. He
states that:
[f]or most of the same reasons that that [sic] Plaintiff has
satisfied the five elements of his FMLA interference claim
against Defendant on the May 28, 2014 absence, he also
satisfies those elements with respect to his August 20,
2014 absences. Plaintiff’s August 20, 2014 back injury
certainly qualified as a serious health condition under the
Act as he was incapacitated for more than three
consecutive days, had more than one appointment with
his health care provider and was on a continuation of
case. [PFOF ¶¶64-73]
Dkt. No. 22 at 11.
The defendant responded that it was “perplexed” by this position,
because “regardless whether the absences due to his back could have been
approved under the FMLA, plaintiff has agreed that he was never assessed
points under the plant’s attendance rules due to any missed time related to
such a condition, and that all such absences were excused.” Dkt. No. 34 at 5.
The defendant asserts that the plaintiff has acknowledged that “he reached
eight unexcused absence points prior to his August 20 back injury,” id.,
referring to the plaintiff’s proposed findings of fact. (The plaintiff did not exactly
acknowledge that he reached eight absences prior to August 20; he stated that
when he appeared for work on August 25, 2014, his supervisor “told him he
was terminated for reaching eight unexcused absences on August 18, 2014.”
Dkt. No. 23 at ¶74.)
The parties’ focus on the collective bargaining agreement’s absence
points system was not relevant to the analysis of whether the defendant
interfered with the plaintiff’s FMLA rights as to the May 28, 2014 absence. It is
29

relevant, however, to the question of whether the defendant interfered with the
plaintiff’s FMLA rights regarding the August 20-25, 2014 absences—
particularly to the question of whether any alleged interference with the
plaintiff’s FMLA rights prejudiced him.
As noted above, the parties agree that on August 18, 2014—two days
before the plaintiff re-injured his back—the defendant assessed him his eighth
absence point. This means that as of August 18, 2014, the defendant had
arguable grounds under the collective bargaining agreement to terminate the
plaintiff, and the defendant did exercise its authority and terminate him one
week later. Thus, the plaintiff was a “lame duck” from August 18 through
August 25, 2014. He no longer had a job, although the defendant had not yet
informed him of that fact.
Even if the plaintiff was entitled to take leave under FMLA for the five
days in August he was off due to his back injury, and even if his
communications with the defendant about the injury provided the defendant
with sufficient notice of his intent to take FMLA leave, and even if the
defendant denied him FMLA leave for those days, he cannot demonstrate that
he was prejudiced. See Ridings v. Riverside Medical Center, 537 F.3d 755, 764
(7th Cir. 2008).
The court perceives that this is why the plaintiff spends so much time
disputing point assessments under the collective bargaining agreement. The
plaintiff implies that if the defendant had not wrongly assessed him two
absence points for the March 8, June 30 and August 18 incidents, he would
30

have accrued only 6 absence points as of August 20 (the day he reinjured his
back). If that had been the case, it would have mattered to him whether the
defendant treated his five days off as FMLA leave, so that any other sources of
leave for future injuries or absences would not be depleted. The plaintiff seeks
to convince the court that it should assume, for the sake of his FMLA claim,
that he was not eligible for termination on August 18, 2014, and thus that he
was prejudiced by the defendant denying him FMLA leave (if it did—that is not
clear).
Even if the parties dispute whether the defendant correctly assessed the
absence points,3 the plaintiff did not plead that dispute, and the court has no
statutory or legal framework in which to resolve it. The parties do not dispute
that the defendant had assessed 8points as of August 18, 2014. They do not
dispute that the collective bargaining agreement provided for termination once
3

The court can’t tell whether the parties have an actual dispute over whether
the defendant accurately calculated the plaintiff’s absence points. The plaintiff
says the defendant wrongly assessed him a point for his March 8, 2014
absence, dkt. no. 23 at ¶9; the defendant gives a non-response response,
stating that the plaintiff has not “challenged the fact that his absence on March
8, 2014 was not for a serious health condition, and it therefore has no bearing
on his sole remaining claim for FMLA interference,” dkt. no. 26 at ¶9. The
plaintiff asserts that he has no recollection of calling in saying he was going to
be late for his June 30, 2014 shift (for which the defendant assessed him half a
point), dkt. no. 23 at ¶40; the defendant responds that failure to recall doesn’t
mean the event didn’t happen, dkt. no. 26 at ¶40. The plaintiff says that even if
he was late that day, it could have been related to the insomnia, dkt. no. 23 at
¶43; the defendant reiterates that the plaintiff has produced no evidence that
he was being treated for insomnia, and didn’t tell the defendant that that was
the reason he’d be late, dkt. no. 26 at ¶43. Finally, the plaintiff says that he
was wrongly assessed a half point on August 18, 2014, dkt. no. 23 at ¶52; the
defendant responds that the plaintiff has produced no evidence to show that he
had been approved to come in late on August 18, dkt. no. 26 at ¶52.
31

an employee had accrued 8 points. They do not dispute that the defendant
terminated the plaintiff for accruing too many absence points. Those are the
facts the court must accept as true, and given those facts, the plaintiff cannot
prove prejudice as a matter of law.
Even more perplexing, the plaintiff spent time discussing a back injury
that he suffered on July 15, 2014, which caused him to be off work from July
15-17, 2014. It is undisputed that the defendant did not assess any absence
points under the collective bargaining agreement for these three days. The
plaintiff asserts, however, that if the defendant had not assessed him a
“DMA”—a documented medical absence—for each of those days, it would have
freed up three “DMAs” for him to use on other occasions. See Dkt. No. 23 at
¶¶46, 62. He says that those three days “should also have potentially qualified
for FMLA leave, which would have left Plaintiff with three DMA’s to use for
other absences. Dkt. No. 23 at ¶62. He asserts, for various reasons having to
do with the collective bargaining agreement, that the defendant “should have
counted those missed days as otherwise excused medical leave of absence
under Sec. 5.12(2) of the CBA or as FMLA leave, and those absences should
have been removed from Plaintiff’s absence record before his termination
because the worker’s compensation claim had been activated, which
encompassed those absences.” Id. at ¶63.
The plaintiff presented no evidence to show that he was entitled to take
FMLA leave for these three days. He presented no evidence regarding what kind
of notice he gave the defendant that he intended to take that leave. He asserts
32

only that these three days were “potentially” entitled to FMLA leave. Even if the
defendant violated the FMLA by not granting the plaintiff FMLA for those three
days, he cannot demonstrate that he was prejudiced by that denial, given the
fact that he was fired a month later for excessive absence points (which did not
include points for these three days).
IV.

Conclusion

The plaintiff does not allege that he was fired for taking medical leave—
he does not dispute that he was terminated for accruing 8 absence points
under the collective bargaining agreement. He alleges that the defendant
should have granted him FMLA leave for an absence that resulted in one of
those points, but has not produced sufficient evidence to raise a genuine
dispute as to an issue of material fact regarding whether he suffered from a
serious medical condition on that date, or to show that the defendant had
reason to know that he suffered from a serious medical condition on that date.
He alleges that the defendant “potentially” could have treated three days in
July—which did not result in absence points under the collective bargaining
agreement—as FMLA leave, which would have freed up more company sick
leave time for him, but he presented no evidence regarding the elements of the
FMLA regarding this assertions. Finally, he argues that the defendant should
have granted him FMLA leave for five additional days in August, but cannot
show prejudice from that denial because by that time, he was subject to
termination.

33

The plaintiff has not presented sufficient evidence to raise a genuine
issue of material fact with regard to this FMLA claim. The defendant is entitled
to judgment as a matter of law.
IV.

Conclusion

The court GRANTS the defendant’s motion for summary judgment, as to
both counts of the complaint. Dkt. No. 18. The court ORDERS that this case is
DISMISSED. The court will enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 22nd day of December, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

34