Brooks v. Community Memorial Hospital of Menomonee Falls Inc et al
Filing
33
DECISION AND ORDER signed by Magistrate Judge William E Duffin on 6/11/2018 DENYING 16 Defendants' Motion for Summary Judgment. (cc: all counsel) (lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VERNARD BROOKS,
Plaintiff,
v.
Case No. 17-CV-659
COMMUNITY MEMORIAL HOSPITAL
OF MENOMONEE FALLS, INC., et al.,
Defendants.
DECISION AND ORDER
Introduction
On September 12, 2016, Vernard Brooks was terminated from his position as an
environmental services attendant with Froedtert Health, Inc., a regional health system
that includes Community Memorial Hospital of Menomonee Falls, Inc.. Brooks filed
this lawsuit on May 8, 2017, alleging interference with his rights under the Family and
Medical Leave Act (FMLA), discrimination in violation of the Americans with
Disabilities Act (ADA), and retaliation for the exercise of his rights under the FMLA and
ADA. (ECF No. 1.) All parties consented to the jurisdiction of a magistrate judge. (ECF
Nos. 4 and 8.)
Defendants have filed a motion for summary judgment on all counts. (ECF No.
16.) In support of their motion the defendants rely on a number of exhibits that are
offered as attachments to an unsworn “declaration” of one of their attorneys, Doris
Brosnan. However, the Brosnan declaration does not comply with 28 U.S.C. § 1746. The
declaration begins like an affidavit, stating “Doris E. Brosnan, being duly sworn on
oath, states as follows: …” But the statement is not actually submitted under oath; it is
not notarized and it lacks any sort of jurat or seal. (ECF No. 19 at 1.) And because it is
missing the statutorily required statement, “I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct. Executed on (date)[,]” 28 U.S.C.
§ 1746(2), it is not an unsworn declaration.
In opposing the motion Brooks relies on a number of exhibits that are offered as
attachments to what purports to be an affidavit of his lawyer, Adam Kent. But the Kent
affidavit contains no jurat or seal and is not notarized. (ECF No. 23.)
Ordinarily, the court would be compelled to disregard the Brosnan declaration
and the Kent affidavit and, consequently, all the exhibits each purports to authenticate.
However, the Brosnan declaration and the Kent affidavit each were submitted for the
limited purpose of submitting documents, the authenticity of which no one disputes. In
the absence of any objection to the authenticity of any of the attached exhibits, the court
will accept them as evidence for purposes of considering the summary judgment
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motion despite the parties’ noncompliance with the requirements for affidavits and
unsworn declarations.
However, the affidavits of Jacqueline Cox (ECF No. 26) and plaintiff Brooks (ECF
No. 24), submitted by Brooks in opposition to the defendants’ motion, are another
matter. Like the Kent affidavit, neither is notarized. The Brooks affidavit lacks any jurat
or seal. The Cox affidavit contains a form jurat, but aside from a “2” in the space for the
day, the jurat is blank, without a name or signature of a notary or details as to the
notary’s commission. Nor is there a seal. Unlike the Kent affidavit, both the Cox and the
Brooks affidavits set forth evidentiary facts that Brooks relies on, at least in part, in
opposing the defendants’ motion.
An affidavit must be “sworn to before someone who is authorized to administer
an oath.” Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). For purposes of summary
judgment, “unsworn documents purporting to be affidavits may be rejected.” Id. The
defects in the Cox and Brooks affidavits are not mere technicalities that the court may
overlook. There is no indication that the affidavits were sworn to before a notary, nor do
they comply with the requirements for an unsworn declaration under 28 U.S.C. § 1746.
Cf. Pfeil, 757 F.2d at 859 (concluding the court erred in rejecting affidavit because it
lacked notarial seal when jurat indicated it was nonetheless sworn to before notary and
otherwise complied with 28 U.S.C. § 1746). In short, there is no reason to believe that the
3
penalties of perjury would apply to any false statement contained in the two
documents. Therefore, the court finds it cannot consider these purported affidavits.
Facts
Defendant Froedtert Health, Inc. is a regional health system that includes
defendant Community Memorial Hospital of Menomonee Falls, Inc. (ECF No. 22, ¶ 1.)
Brooks was hired by Froedtert in December 2013 as an Environmental Services
Attendant (“EVS Attendant”). (ECF No. 1, ¶ 9.) EVS Attendants may be required to
clean patient rooms, clinics, offices, and floors, remove trash, answer calls for beds, and
clean up spills. (ECF No. 22, ¶ 27.)
Froedtert has a number of personnel policies. Among them are a Staff Attendance
Policy (ECF No. 19-1), a Corrective Action Policy (ECF No. 19-2), a Staff Appeal Policy
(ECF No. 19-3), a Leave of Absence and Return to Work Policy (ECF No. 19-4), a
Bereavement Policy (ECF No. 19-5), an EVS Attendance and Tardiness Policy (ECF No.
19-6), and an EVS Call-In Policy (ECF No. 19-7.) Brooks disputes that the policies are
applied equally at all times and to all employees. (ECF No. 22, ¶¶ 2-3.)
The Staff Attendance Policy states that Froedtert staff will “[a]rrive at work on
time” and “[w]ork their full shift as scheduled”. (ECF No. 19-1.) “[E]xcessive
absenteeism and tardiness will not be tolerated.” (Id.) “The corrective action process
will begin when a staff member incurs five (5) occurrences in a rolling twelve month
period.” (Id.) An “occurrence” is any unscheduled time off and is defined as any of the
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following: two instances of tardiness, missing more than 25 percent of a shift, missing
part of a shift because of leaving early, an unscheduled absence that results in missing
from one to five consecutive days of scheduled work, and missing work for more than
five consecutively-scheduled work days. (Id.)
According to the Corrective Action Policy, corrective action normally will consist
of written warnings for the first three occurrences, with a fourth occurrence resulting in
discharge. (ECF No. 19-2.) According to the so-called “EVS Call-In Policy,” EVS staff are
to call in if “Sick, Late, Etc.” by calling the shift supervisor. (ECF No. 19-7.) If the shift
supervisor is unavailable, the employee is to call in and speak with someone on the EVS
team to let them know that he is not coming in or that he is going to be late. (Id.) The
EVS Attendance and Tardiness Policy requires that, for unscheduled time off, EVS staff
“must call in a minimum of one hour prior to the start of their shift.” (ECF No. 19-6.)
Finally, Froedtert’s “Leave of Absence and Return to Work” Policy provides
“guidelines for absence away from the job when necessary due to serious medical
conditions and family leave under the federal Family and Medical Leave Act (federal
FMLA) and Wisconsin Family and Medical Leave Act (WFMLA), as an accommodation
for a disability, and to provide return to work guidelines for the staff member.” (ECF
No. 19-4.) Under that policy, for “unforeseeable leave” a staff member “must provide
notice of absence pursuant to the departmental notification procedure as soon as
practicable.” (Id.)
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When Brooks began working at Froedtert his general manager was Jacqueline
Cox. (ECF No. 22, ¶ 29.) In May 2014 Brooks requested that Cox assign him
permanently to the operating room. (ECF No. 22, ¶ 30.) Cox granted his request. (Id.)
Approximately a year later, Brooks applied for and was granted FMLA leave
from April 30, 2015, through May 25, 2015, due to a foot condition (post tibial
tendinitis/left posterior tibial tendon dysfunction stage II and Gastrocnemius/Achilles
contracture). (ECF No. 22, ¶¶ 39, 44.) Among other things, Brooks’s foot condition
limited his ability to stand and walk for long periods of time. (Id., ¶ 40.) When Brooks
returned from his leave of absence, his physician submitted a Certificate of Return to
Work requesting an accommodation of “limited walking – able to walk up to 4 hours in
an 8 hour shift …” as well as 2 to 3 days off per month due to pain flare up. (ECF No.
22, ¶ 45.)
Upon his return to work Brooks had a meeting with Cox in which they discussed
his accommodations. (ECF No. 22, ¶ 47.) Brooks discussed his desire to stay in the
operating room but was told he was going back to attendant duties because of staffing
issues. (Id.) Froedtert alleges that the operating room position required Brooks to stand
on his feet the entire shift, while Brooks contends that he could work in the operating
room even with the recommended accommodations. (ECF No. 22, ¶¶ 48, 50.) Brooks
and Cox signed a Temporary Accommodation Agreement that established a work
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assignment for Brooks in which he was to work “2 hours dietary, 2 hours laundry (sit),
2 hours dietary, 2 hours laundry.” (ECF No. 19-10.)
Brooks was additionally granted intermittent FMLA leave due to his foot
condition and was allowed to be off work 2-3 days per month. (ECF No. 22, ¶ 51.)
Froedtert also allowed Brooks to use FMLA leave to be tardy for his shifts. (Id., ¶ 52.)
Brooks’s FMLA leave was eventually extended to allow him to call in late 4 to 5 times a
week, and he began calling in late 4 to 5 days per week. (Id., ¶¶ 51, 53.) Brooks never
asked for any further accommodation for his foot condition. (Id., ¶ 62.) Brooks was
always given any time off that he needed for his foot condition. (Id., ¶ 63.)
Defendants state that, although Brooks was allowed to use his FMLA leave to be
tardy for his shifts, he was still required to follow the call-in procedure and notify his
supervisor or someone else in the EVS department at least one hour before his shift was
to start to let them know that he would be late. (ECF No. 22, ¶ 52.) Brooks states that he
complied with the policy set forth in the Leave of Absence and Return to Work Policy
that he call in “as soon as practicable.” (Id.)
On November 21, 2015, Michael Klinter emailed Brooks to inform him that he
had punched in late on November 17, 18, 19, and 20. (Id., ¶ 65.) Klinter sent similar
emails to other EVS employees who punched in late. (Id., ¶ 66.)
Cox left Froedtert in December 2015. (ECF No. 22, ¶ 31.) Brooks then began
reporting to Klinter. (Id., ¶ 32.) Brooks asked for and was granted reassignment to the
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operating room by Klinter. (Id., ¶¶ 56-57.) In March 2016 Megan Barke became Brooks’s
direct supervisor. (Id., ¶ 33.) Barke was unaware that Brooks needed any
accommodations for his foot condition other than his need for time off. (Id., ¶ 64.)
On or about April 20, 2016, Barke met with Brooks. The purpose of the meeting
“was because [Brooks] began showing up tardy more than his certification allowed and
warned that this could result in a corrective action under the attendance policy for too
many occurrences.” (ECF No. 29, ¶ 16.) During the meeting Brooks was asked whether
his medical condition prevented him from calling in at least one hour before the start of
a shift. (ECF No. 22, ¶ 75.) Brooks stated that he could not know within an hour of his
shift when he was going to have a “flare up” of his foot condition. (Id., ¶ 76.) Moreover,
Brooks had recently learned that his sister had been diagnosed with Stage 4 cancer. (Id.,
¶ 81.) He was feeling “depressed and hurt” (id., ¶ 83), stated that he was concerned with
his sister dying and having a “write up at the same time” (id., ¶ 84), and thus walked off
of the job (id., ¶¶ 80-84).
Froedtert subsequently reached out to Brooks’s physician regarding his
intermittent leave of absence for “flare-ups of his serious health condition,” describing
that Brooks is “currently calling in up to 7 days per week and states he is able to call in
late to work.” (ECF No. 19-15 at 2.) On May 11, 2016, Brooks’s physician certified that
Brooks could be tardy up to one and a half hours for five shifts a week. (Id. at 11-12.)
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On May 17, 2016, Brooks received a first written warning for calling in late on 27
occasions between April 11, 2016 and May 17, 1016, to notify his leader and department
that he would be either tardy or absent. (ECF No. 22, ¶ 69.) Brooks received a second
written warning at the same time for walking off the job on April 20, 2016. (ECF No. 22,
¶ 80.) Thereafter, Brooks began following the call-in procedure for his tardies and
absences. (Id., ¶ 79.)
After his sister died, Brooks took three days off of work for bereavement leave
during the week of June 6, 2016. (ECF No. 22, ¶ 89.) Froedtert’s Bereavement Policy
states that staff is granted a maximum of three scheduled work days to observe a period
of bereavement when having suffered the loss of a sister. (ECF No. 19-5 at 2.) The policy
further provides that under “special circumstances” a department manager may
approve additional days off. (Id.) On Monday, June 13, Brooks called in and stated that
he would not be at work that day or the next (ECF No. 22, ¶ 90) because “he needed to
take care of things for the funeral on Tuesday” (ECF No. 19-17 at 2). As a result, he
missed work those two additional days. (ECF No. 22, ¶ 90.) On July 19, 2016, Brooks
received a third written warning for two unexcused absences on June 13 and 14, 2016.
(ECF No. 19-17 at 2.)
On August 22, 2016, Brooks filed a charge of discrimination with the Wisconsin
Equal Rights Division, alleging that he had been “discriminated against on the basis of
disability when [he] was denied a reasonable accommodation and disciplined”—
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apparently in connection with the warning arising out of his bereavement time off. (ECF
No. 23-20.) That same month Karl Schultz, Director of Operations—Community
Hospital Division at Froedtert, communicated that Barke was to be “VERY tight with
[Brooks] on Call-ins.” (ECF No. 29, ¶ 62.)
On September 5, 2016, Labor Day, Brooks was a “no call/no show” for a shift he
was scheduled to work. (ECF No. 22, ¶ 97.) Brooks contends that he did not know he
had to work that day due to a prior discussion with Cox in which she told him that he
would never have to work holidays because no supervisor would be present to
potentially accommodate his disability. (ECF No. 22, ¶ 98.) However, Brooks was
scheduled to work Christmas 2015 and called in sick that day. (ECF No. 22, ¶ 103.)
Because Brooks had received three written warnings in the previous twelve months, his
employment was terminated on September 12, 2016. (ECF No. 19-19.)
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). “Factual disputes are ‘material’ only when they
‘might affect the outcome of the suit under the governing law’” and “‘genuine’ only ‘if
the evidence is such that a reasonable jury could return a verdict for the [nonmovant].’”
Oest v. Ill. Dep't of Corr., 240 F.3d 605, 610 (7th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “The burden on the moving party may be
10
discharged by demonstrating ‘that there is an absence of evidence to support the
nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
“The controlling question is whether a reasonable trier of fact could find in favor of the
non-moving party on the evidence submitted in support of and [in] opposition to the
motion for summary judgment.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016).
Analysis
The complaint contains four counts: a violation of the FMLA by interfering with
Brooks’s rights under the FMLA; a violation of the ADA for employment discrimination
based on disability; retaliation for engaging in activity protected under the ADA; and
retaliation for engaging in activity protected under the FMLA. The defendants seek
summary judgment on all four counts.
For purposes of the present motion, the court finds it helpful to note that
Brooks’s claims fall into two broad categories. First, there are Brooks’s claims that the
defendants unlawfully disciplined him for not calling in at least an hour before the start
of his shifts. According to Brooks, the defendants’ policy requiring that he call in at least
an hour before he was scheduled to work if he was going to be late interfered with his
rights under the FMLA. It also violated the ADA because the defendants did not
reasonably accommodate his disability.
Second, there are what might be characterized more broadly as substantive
discrimination claims. Brooks alleges that he suffered adverse employment actions
11
(discipline and termination) because of animus regarding his disability and his FMLA
leave. In the context of the FMLA, this sort of claim is characterized as one of
“retaliation.” Such a claim under the ADA is generally referred to as “disparate
treatment” (although Brooks refers to it in his complaint as one of retaliation).
Enforcement of the One-Hour Call-In Policy
FMLA Interference
In order to establish a claim under the FMLA Brooks must show that: (1) he was
eligible for the FMLA’s protections; (2) his employer was covered by the FMLA; (3) he
was entitled to take 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.
Goelzer v. Sheboygan County, Wis., 604 F.3d 987, 993 (7th Cir. 2010). Termination of
employment can constitute interference. See Kauffman v. Fed. Exp. Corp., 426 F.3d 880,
884 (7th Cir. 2005). “However, an employee may be fired for poor performance when
[]he would have been fired for such performance even absent h[is] leave.” Kohls v.
Beverly Enter. Wis., Inc., 259 F.3d 799, 805 (7th Cir. 2001).
Froedtert does not dispute that it is subject to the FMLA or that Brooks was
permitted to use FMLA leave to come in late when his medical condition necessitated it.
(ECF No. 17 at 8.) As a general matter, there is nothing improper about requiring an
employee entitled to FMLA leave to follow “usual and customary notice and procedural
requirements for requesting leave, absent unusual circumstances.” 29 C.F.R.
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§ 825.302(d); see also § 825.303(c) (addressing compliance with employer policy when
need for leave is not foreseeable). According to Froedtert, its one-hour-in-advance callin policy fits within this regulation. As such, it was permitted to discipline Brooks for
not complying with it.
However, “[w]hen the approximate timing of the need for leave is not
foreseeable, an employee must provide notice to the employer as soon as practicable
under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303(a).
Apparently believing that it supports their position, the defendants quote an opinion
letter from the Department of Labor’s Wage and Hour Division that discusses 29 C.F.R.
§ 825.303(a). The letter states, “where an employer’s usual and customary notice and
procedural requirements for requesting leave are consistent with what is practicable
given the particular circumstances of the employee’s need for leave, the employer's
notice requirements can be enforced.” Opinion Letter Family Medical Leave Act
(FMLA), FMLA2009-1-A (Jan. 6, 2009), 2009 WL 1286146, at *3. But the defendants brush
past the qualifying language—that usual notice procedures may be enforced only if
they “are consistent with what is practicable given the particular circumstances of the
employee’s need for leave.”
Thus, if the particular circumstances of the need for leave do not arise until after
the employer’s deadline for providing notice, it is not “practicable given the particular
circumstances of the employee’s need for leave” to require the employee to comply with
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the employer’s notice deadline. A one-hour-in-advance call-in policy that disciplines
employees who cannot, due the circumstances necessitating the leave request, provide
notice of their need for FMLA leave at least one hour before the start of their shift
violates the FMLA.
Brooks contends he provided notice as soon as he could. He did not know when
his foot condition would “flare up,” which sometimes happened less than an hour
before he was scheduled to start work. A reasonable finder of fact could conclude that,
by applying and disciplining Brooks for violating the general one-hour-in-advance callin policy, the defendants violated the FMLA and interfered with Brooks’s rights under
the act.
However, a dispute of material fact exists as to whether on each day he was late
Brooks called in “as soon as practicable.” The defendants make much of Brooks’s
supposed admission during his deposition that his foot did not prevent him from
calling in at least an hour in advance of his shift. (See ECF No. 19-23 at 123.) However,
his testimony can be understood as Brooks merely acknowledging that foot pain did not
prevent him from dialing a phone. Brooks did not concede that he always knew more
than an hour before his scheduled shift that his foot would flare up and prevent him
from arriving on time.
The fact that Brooks was able to comply with the call-in procedure after he
received a written warning is strong circumstantial evidence that Brooks had not been
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calling in as soon as practicable, as is the fact that, after Froedtert requested it, he failed
to provide a note from his physician that he was unable to timely call in. But these are
conflicts the court cannot resolve on summary judgment; there remains a dispute of
material fact for the jury. See Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir.
1997).
Failure to Accommodate Under the ADA
“‘Discrimination,’
[under
the
ADA]
includes
‘not
making
reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee’ unless the employer ‘can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business.’” Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682 (7th Cir.
2014) (quoting 42 U.S.C. § 12112(b)(5)(A)). Brooks argues that the one-hour-in-advance
call-in policy violated the ADA because the defendants applied it to him without
consideration of his disability. (ECF No. 21 at 16-19.)
“In order to establish a claim for failure to accommodate, a plaintiff must show
that: (1) he is a qualified individual with a disability; (2) the employer was aware of [his]
disability; and (3) the employer failed to reasonably accommodate the disability.” Bunn
v. Khoury Enterprises, Inc., 753 F.3d 676, 682 (7th Cir. 2014). For purposes of the present
motion, the dispute relates to the third element: whether the defendants failed to
reasonably accommodate Brooks’s disability. “In the general sense, ‘an accommodation
15
is any change in the work environment or in the way things are customarily done that
enables an individual with a disability to enjoy equal employment opportunities.’”
Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682 (7th Cir. 2014) (quoting 29 C.F.R. pt.
1630 app. § 1630.2(o)).
The defendants have failed to show they are entitled to summary judgment on
this claim. The fact that Brooks apparently never explicitly asked that he be excused
from the one-hour-in-advance call-in policy as an accommodation for his disability (see
ECF No. 17 at 25) does not entitle the defendants to summary judgment. “The employer
has at least some responsibility in determining the necessary accommodation.” Beck v.
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). “[I]f it appears that the
employee may need an accommodation but doesn’t know how to ask for it, the
employer should do what it can to help.” Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d
1281, 1285 (7th Cir. 1996). Brooks contends that when he “complained in his first
disciplinary meeting [on April 20, 2016] that he could not know within an hour of his
shift when he was going to have a ‘flare up’ that should have triggered an interactive
process to determine whether or not Defendant could accommodate his disability by
not requiring him to call in an hour before his shift.” (ECF No. 21 at 17 (internal citation
omitted).)
Evidence that the defendants knew his disability may prevent Brooks from
complying with the one-hour call-in procedure, but took no steps to determine whether
16
an accommodation might be reasonable, precludes summary judgment in the
defendants’ favor as to this claim. A reasonable finder of fact could conclude that the
defendants failed to reasonably accommodate Brooks’s disability by holding him to a
policy with which his disability allegedly prevented him from complying.
Discrimination
Preliminarily, the court notes that the parties discuss Brooks’s ADA disparate
treatment and FMLA retaliation claims using the jargon that was commonplace in
employment discrimination case law, referring to direct and indirect methods of proof
and a “convincing mosaic.” (ECF Nos. 17 at 20, 21, 22, 24, 26; 21 at 19, 22.) But these “are
just means to consider whether one fact (here, [disability and FMLA leave]) caused
another (here, [discipline and] discharge) and therefore are not ‘elements’’ of any
claim.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 763 (7th Cir. 2016). They are diversions
that have “complicated and sidetracked employment-discrimination litigation for many
years.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016). They detract
attention from the sole question that matters: whether Brooks would have kept his job
had he not been disabled or taken FMLA leave and everything else had been the same?
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016); see also Freelain v. Vill. of Oak
Park, No. 16-4074, 2018 U.S. App. LEXIS 10975, at *21 (7th Cir. Apr. 30, 2018) (applying
Ortiz to case involving claims under FMLA and ADA); Cloutier v. GoJet Airlines, LLC,
No. 16 C 1146, 2018 U.S. Dist. LEXIS 81366, at *28 (N.D. Ill. May 15, 2018) (same) (citing
17
Deacon v. Peninsula Chicago, LLC, No. 16-CV-1464, 2017 U.S. Dist. LEXIS 131252, 2017
WL 3531518, at *9 (N.D. Ill. Aug. 17, 2017)); Knapp v. Evgeros, Inc., 205 F. Supp. 3d 946,
956 (N.D. Ill. 2016) (applying Ortiz to ADA claim). “Evidence must be considered as a
whole, rather than asking whether any particular piece of evidence proves the case by
itself …. [N]o evidence should be treated differently from other evidence because it can
be labeled ‘direct’ or ‘indirect.’” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir.
2016). However, when applicable, the familiar McDonnell Douglas burden-shifting
framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), remains. Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir. 2016).
Also preliminarily, the defendants contend that Brooks must be able to show that
he would not have been fired but for his disability. (ECF No. 17 at 24 (citing Serwatka v.
Rockwell Auto., Inc., 591 F.3d 957, 962 (7th Cir. 2010)).) However, Serwatka was decided
under a prior version of the ADA. “Congress enacted significant amendments to the
ADA in 2008. As relevant here, the language prohibiting discrimination ”because of” a
disability was amended to prohibit discrimination ”on the basis of” a disability. Silk v.
Bd. of Trs., 795 F.3d 698, 705 (7th Cir. 2015) (quoting 42 U.S.C. § 12112(a)). It remains an
open question in this circuit whether this amendment opened the door to mixed motive
claims under the ADA. Nonetheless, because Brooks does not argue that anything other
than the “but-for” standard applies, the court will apply it here. See Silk v. Bd. of Trs., 795
18
F.3d 698, 706 (7th Cir. 2015) (continuing to apply the but-for standard in the absence of
adequate briefing on the question).
However, with respect to retaliation under the FMLA, Brooks need only establish
“that the protected conduct was a substantial or motivating factor in the employer’s
decision.” Lewis v. Sch. Dist. # 70, 523 F.3d 730, 741-42 (7th Cir. 2008) (quoting Culver v.
Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005)). He need not establish that his discipline
and termination would not have occurred but for his use of FMLA leave. Id.
In an effort to show that animus with respect to his disability and his use of
FMLA leave motivated the defendants in deciding to discipline, and eventually
terminate, him, Brooks points to how the defendants treated Barry 1 Debord, another
EVS employee who failed to call in or show up for work on Labor Day 2016. Debord
was not disciplined until months later, after the EEOC notified Froedtert that Brooks
had identified Debord as a similarly situated employee who was treated better than
Brooks. (ECF No. 21 at 21; see also ECF No. 29, ¶¶ 66, 67.)
The defendants contend that Debord is not similarly situated to Brooks because
he did not have a comparable disciplinary history. (ECF No. 27 at 13.) It contends, “Mr.
Debord on the other hand had only received a single Written Warning back in February,
2016. Mr. Debord’s disciplinary history was very different from Plaintiff’s meaning his
absence did not subject him to termination.” (ECF No. 27 at 14 (internal citation
1
Brooks frequently incorrectly refers to him as Gary.
19
omitted).) In support, the defendants point to the following statement from Simpson v.
Franciscan All., Inc., 827 F.3d 656, 662 (7th Cir. 2016): “An employee who does not have a
similar disciplinary history and performance record as the plaintiff is not similarly
situated.” (ECF No. 27 at 13 (quoting (without quotation marks) Simpson, 827 F.3d at
662).)
However, the court in Simpson did not mean that employees must have an
identical disciplinary history to be similarly situated. Significantly, Amrhein v. Health
Care Serv. Corp., 546 F.3d 854, 860 (7th Cir. 2008), the case cited in Simpson in support of
the point quoted above, says, “A similarly situated employee need not be ‘identical,’ but
the plaintiff must show that the other employee ‘dealt with the same supervisor, [was]
subject to the same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish [his] conduct or the
employer's treatment of [him].” Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 860 (7th
Cir. 2008) (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008); citing
Crawford v. Ind. Harbor Belt RR. Co., 461 F.3d 844, 846 (7th Cir. 2006) (holding that a
similarly situated employee is one who is “comparable to plaintiff in all material
respects”).
Brooks is not arguing that because Debord was not fired the court should infer
discriminatory animus. There appears to be no dispute that Brooks’s and Debord’s
discipline histories put them at different points with respect to Froedtert’s progressive
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discipline policy. Brooks is not arguing that Debord should have been fired for missing
work on Labor Day 2016 even if he had not incurred four occurrences. Rather, he is
arguing merely that Debord should have been disciplined for his identical failure to call
in or show up to work that day. The mere fact that Debord may have incurred fewer
occurrences than Brooks does not make them dissimilarly situated for purposes of being
disciplined under the leave policy. The fact that the defendants did not discipline
Debord until contacted by the EEOC suggests that their frustration with Brooks’s
disability and frequent leave motivated them to discipline him.
This evidence of disparate treatment, combined with other circumstantial
evidence, could lead a reasonable finder of fact to conclude that the defendants’
decision to discipline Brooks and subsequently terminate his employment was
motivated by his taking FMLA leave and would not have occurred but for his disability.
There is evidence suggesting that the defendants had grown frustrated with Brooks’s
tardiness. Although apparently content to look the other way for a while, it got to the
point that the defendants felt they had to crack down and ensure he complied with their
policies. Therefore, they started to scrutinize Brooks’s attendance.
But it soon became apparent that Brooks’s tardiness was not a result of personal
dereliction that could be corrected with discipline. Brooks would continue to be tardy
because of his disability (and his physician certified as much). Thus, Froedtert took a
hard line with him. It relied on a generally applicable one-hour-in-advance call-in
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policy to discipline him, apparently without regard to whether it interfered with
Brooks’s rights under the FMLA or whether some modification of the policy might have
been a reasonable accommodation under the ADA.
The defendants’ hard line scrutiny continued, and what might have been a
reasonable misunderstanding as to whether he was required to work on Labor Day was
offered as the final straw to terminate Brooks’s employment.
IT IS THEREFORE ORDERED that Froedtert’s motion for summary judgment
is denied.
Dated at Milwaukee, Wisconsin this 11th day of June, 2018.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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