Arriola v. Cardinal Stritch University
Filing
61
DECISION AND ORDER signed by Magistrate Judge William E Duffin on 2/28/2019 GRANTING 31 Defendant's Motion for Summary Judgment; DENYING 36 Plaintiff's Motion for Partial Summary Judgment; and DISMISSING AS MOOT 27 Defendant's Motion to Exclude Plaintiff's expert. Judgment to be entered. (cc: all counsel) (lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DR. KARL ARRIOLA,
Plaintiff,
v.
Case No. 18-CV-36
CARDINAL STRITCH UNIVERSITY, INC.,
Defendant.
DECISION AND ORDER
Plaintiff Dr. Karl Arriola brought this action against defendant Cardinal Stritch
University, Inc., alleging that the termination of his employment violated the Family
and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. Both parties consented to the
jurisdiction of a magistrate judge. Cardinal Stritch has moved for summary judgment,
and Arriola has moved for partial summary judgment. Both motions have been fully
briefed and are ready for resolution.
FACTS
Cardinal Stritch is a private university in Milwaukee, Wisconsin. (ECF No. 47,
¶ 2.) It hired Arriola as an Adjunct Professor in 2010. (Id., ¶ 3.) Beginning on March 1,
2017, Cardinal Stritch employed Arriola as an Assistant Professor and Chair of the
College of Business. (Id., ¶ 4.)
On or about September 14, 2017, Arriola met with Cardinal Stritch Human
Resources representative Jacqueline Sukowaty and reported two interactions that had
occurred with his co-workers. (ECF No. 47, ¶ 6.) In a written statement provided to
Sukowaty, Arriola described the two incidents. (ECF No. 34-1.) The first incident was
alleged to have occurred at the end of July during a meeting with three faculty members
of the College of Business and Management. During the meeting, the Dean of the
College of Business and Management allegedly said to Arriola, “Oh, I see your PTSD
coming out.” (Id. at 1.) Although Arriola admits that he had previously told other
faculty members, as well as the dean’s wife, that he had been diagnosed with PTSD, he
alleged that the remark was unprofessional because it implied that Arriola’s PTSD
clouded his judgment. The comment “caused Dr. Arriola to feel embarrassed and
belittled[.]” (Id.)
The second incident allegedly occurred on September 13, 2017—the day before
Arriola’s meeting with Sukowaty. Arriola alleged that at a faculty development meeting
a professor walked up behind a co-worker and twice said, “Say hi.” (ECF No. 34-1 at 1.)
Arriola claimed that the comment was made “in a very demeaning and bullying tone.”
(Id.) After the meeting was concluded, Arriola reported the incident to the Associate
Dean of the College of Business and Management. (Id. at 1-2.) Approximately an hour
2
later, while Arriola was engaged in a conversation with a co-worker, the professor who
said, “Say hi,” came up behind Arriola, poked him in the back with her finger, and said,
“Snitches get stitches.” (Id. at 2.) After work that day, Arriola went to the Fox Point
Police Department and filed an assault and battery complaint against the professor. (Id.
at 3.)
Arriola called in sick on September 14 and 15, stating that “he feels this is a very
Hostile Work Environment and he has been physically ill since yesterday with stress
from it.” (ECF No. 34-1 at 3.) He claimed that he was worried about retaliation from the
dean, assistant dean, and professor at issue and that “his job will be affected from this
and how much damage [the professor] will be able to do to sabotage or jeopardize his
career.” (Id.)
Having not returned to work since September 13, on September 19, 2017, Arriola
informed Cardinal Stritch, “I will be on leave until my physician determines I can
return back to work, as I am under professional treatment.” (ECF No. 34-2 at 1.) Arriola
provided a letter to Cardinal Stritch from his physician, Dr. Joseph Paukner. (ECF No.
47, ¶ 9.) Other than noting that Arriola had a follow-up appointment scheduled for
October 10, 2017, Dr. Paukner’s letter stated in its entirety: “This is to certify that Karl E
Arriola has been under Joseph L Paukner, MD’s care from 9/19/2017 and was off work
9/14/17 thru 10-10-17.” (ECF No. 34-2 at 2.)
3
Two days later, on September 21, 2017, Sukowaty notified Arriola that he was
eligible for leave under the State of Wisconsin Family and Medical Leave Act through
September 28, 2017. (ECF No. 34-3 at 2.) Sukowaty also told Arriola that he was not
eligible for leave under the federal FMLA, but that Cardinal Stritch would grant Arriola
leave under its unpaid personal leave policy. (ECF No. 47, ¶ 12; ECF No. 34-3 at 2.)
Sukowaty’s letter warned Arriola that “[f]ailure to return to work upon the expiration of
the leave of absence will be considered a voluntary resignation of employment.” (ECF
No. 34-3 at 2.) In a separate email that same day Sukowaty asked Arriola whether he
would like to use sick time beginning September 14, 2017. (ECF No. 34-3 at 1.) On
September 27, 2017, Arriola emailed Sukowaty that, “From the dates of 09/14 to 09/29
yes, I am in agreement and would like to use my Sick Time to become paid.” (ECF No.
34-5 at 1.)
On October 9, 2017, Arriola requested an extension of his leave until November 9,
2017. (ECF No. 47, ¶ 14.) He stated, “I wanted to follow-up with you prior to the
October 10th requirement that I have seen my doctor this afternoon, and I am being
extended for another 30 days until 11/09 when he wants to see me for another follow-up
appointment.” (ECF No. 34-6 at 1.) The request was supported by a note from Dr.
Paukner, which stated in its entirety: “This is to certify that Karl E Arriola has been
under Joseph L Paukner, MD’s care from 10/9/2017 and is excused from work on
10/09/2017 to 11/09/2017.” (ECF No. 34-6 at 2.) In a letter from Sukowaty to Arriola
4
dated October 13, 2017, Cardinal Stritch granted Arriola’s request that his leave be
extended. (ECF No. 47, ¶ 14; ECF No. 34-7 at 2.) Sukowaty’s letter again warned Arriola
that “[f]ailure to return to work upon the expiration of the leave of absence or refusing
an offer of reinstatement for which you are qualified will be considered a voluntary
resignation of employment.” (ECF No. 34-7 at 2.)
On November 9, 2017, Arriola requested another extension of his leave of
absence until December 21, 2017. (ECF No. 47, ¶ 15.) He stated, “I have just come home
from seeing my doctor and please find his letter of medical leave being extended to
12/21 as I have another appointment at that time.” (ECF No. 34-8 at 1.) It was supported
by a note from Dr. Paukner that stated: “This is to certify that Karl E Arriola has been
under Joseph L Paukner, MD’s care from 11/9/2017 and will be off work for 6 weeks. Pt
will f/u with Dr. Paukner in 6 weeks.” (Id.; ECF No. 34-8 at 3.) In a November 9, 2017
letter from Sukowaty, Cardinal Stritch advised Arriola that it was approving an
extension of his leave through December 21, 2017. (ECF No. 47, ¶ 16; ECF No. 34-9 at 2.)
Sukowaty’s letter to Arriola advised him that, “[a]s of today, all of your accrued but
unused sick time has been exhausted.” (ECF No. 34-9 at 2.)
On December 21, 2017, Arriola emailed Sukowaty, “As promised, please find the
letter of medical leave from my doctor's appointment which occurred today.” (ECF No.
34-10 at 1.) Attached was a note from Dr. Paukner which stated: “This is to certify that
5
Karl E Arriola has been under Joseph L Paukner, MD’s care from 12/21/2017 and is
unable to return to work until January 22, 2018.” (Id.; ECF No. 34-10 at 2.)
In a letter from Michael Hoffman, Director of Human Resources, to Arriola dated
January 2, 2018, Cardinal Stritch informed Arriola that his most recent request for an
extension of his personal leave was not approved and that it was terminating his
employment effective December 21, 2017. (ECF No. 34-11.)
Six days later, Arriola filed his complaint in this action. The complaint contains
two causes of action: FMLA interference, and FMLA retaliation. (ECF No. 1.)
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). The party seeking summary judgment “bears the
initial responsibility of informing the district court of the basis for its motion, and
identify” the evidence which “demonstrate[s] the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To establish a genuine issue of fact,
the nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial, not “simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec., Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). If the nonmoving party fails to establish the existence of an essential element on
6
which it bears the burden of proof at trial, summary judgment is proper. Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006) (citing Celotex, 477 U.S. at 322-23).
In ruling on a motion for summary judgment, the court must view all facts in the
light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). If a reasonable factfinder could find in favor of the nonmoving party,
summary judgment may not be granted. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.
2003).
ANALYSIS
Cardinal Stritch has moved for summary judgment on both of Arriola’s claims.
Arriola has moved for summary judgment on his FMLA interference claim.
The FMLA
The FMLA provides that an eligible employee may take up to 12 weeks of leave
during any 12-month period if he is unable to perform the functions of his position
because of a serious health condition. 29 U.S.C. § 2612(a)(1)(D). An employer is
prohibited from interfering with the exercise of or the attempt to exercise any right
under the FMLA. James v. Hyatt Regency Chi., 707 F.3d 775, 780 (7th Cir. 2013) (citing 20
U.S.C. § 2615(a)(1)). And it is unlawful for an employer to retaliate against an employee
who exercises or attempts to exercise FMLA rights. Id. at 781 (citing 29 U.S.C.
§ 2615(a)(2)).
7
In moving for summary judgment, Cardinal Stritch does not concede that Arriola
was entitled to FMLA leave, arguing that Arriola has no evidence he had a serious
health condition in 2017. (Id. at 9-13.) However, it contends that Arriola received
fourteen weeks of leave—two more than the 12 weeks required under the FMLA. As
such, even if it incorrectly concluded that Arriola was not eligible for and entitled to
leave under the FMLA, he was not prejudiced. (ECF No. 32 at 6-9.) Finally, it argues that
Arriola’s FMLA retaliation claim fails because he has presented no evidence that would
support an inference that Cardinal Stritch’s decision to terminate his employment was
motivated by retaliatory animus. (Id. at 14-15.)
In response, Arriola begins by arguing that he was eligible to receive FMLA
leave, claiming that Cardinal Stritch erred in calculating the number of hours of service
he put in with Cardinal Stritch during the 12-month period prior to requesting leave.
(ECF No. 53 at 5-6.) He then contends that he was entitled to FMLA leave because he
was suffering from several serious health conditions: anxiety and depression, suicidal
thoughts, and PTSD. (Id. at 7.) He argues that, had he received the FMLA leave to which
he was entitled, that would have taken him to the end of 2017, at which point he would
have been entitled to another 12 weeks of FMLA leave under Cardinal Stritch’s leave
policy. (ECF No. 53 at 25.) And he contends that a disputed issue of material fact exists
as to his retaliation claim. (Id. at 21.)
8
For the same reasons he disputes that Cardinal Stritch is entitled to summary
judgment on his FMLA interference claim, Arriola contends he is entitled to summary
judgment on that claim. (ECF No. 37.)
1. Arriola’s FMLA Interference claim
To prevail on an FMLA interference claim, a plaintiff must prove, among other
things, that “his employer denied him FMLA benefits to which he was entitled.” Burnett
v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). If Arriola was eligible for FMLA leave, he
would have been entitled to 12 weeks of leave. See Curtis v. Costco Wholesale Corp., 807
F.3d 215, 223 (7th Cir. 2015) (citing 29 U.S.C. § 2612(a)(1)). It is undisputed that Cardinal
Stritch did not terminate Arriola’s employment until 14 weeks after his last day of work.
Thus, according to Cardinal Stritch, even if Arriola could show that he was eligible for
FMLA leave and that Cardinal Stritch failed to properly designate his leave, he cannot
prove he was prejudiced by Cardinal Stritch’s alleged interference with his right to
leave; he received all the leave to which he was entitled. (ECF No. 32 at 7.) See Ragsdale
v. Wolverine World Wide, Ind., 535 U.S. 81, 89 (2002) (Ҥ 2617 provides no relief unless the
employee has been prejudiced by the violation”).
The FMLA entitles an eligible employee “to a total of 12 workweeks of leave
during any 12-month period.” 29 U.S.C. § 2612(a). However, in response to Cardinal
Stritch’s motion, Arriola argues that, as of January 1, 2018, he became eligible for an
additional 12 weeks of FMLA leave because Cardinal Stritch permits 12 weeks of leave
9
per calendar year. (See ECF No. 34-13 (“An eligible employee under the Federal FMLA
may in a calendar year take up to twelve (12) weeks of unpaid leave for any
combination of family, medical or qualifying exigency leave[.]”).)
In an effort to demonstrate that he was entitled to leave through 2017, Arriola
argues that, because he used accrued sick leave for the first two weeks he did not work,
his FMLA leave would not have started until September 29, 2017. Twelve weeks from
that date is December 22, 2017. Because Cardinal Stritch was closed from December 22,
2017, through January 2, 2017, that period should not be counted as leave. (ECF No. 37
at 11-12 (citing 29 C.F.R. § 825.200(h)); see also ECF Nos. 53 at 19; 54 at 2.) And beginning
in January 2018, 12 new weeks of FMLA leave kicked in.
Arriola fails to support the contention that Cardinal Stritch was closed from
December 22, 2017 through January 2, 2018, with any citation to the record. 1 Therefore,
the court is not presented with evidence from which a finder of fact could accept this
proposition as true. Moreover, even if classes were not in session during this period,
that does not necessarily mean that faculty members were not required to work--for
The court notes that, attached to a Declaration of Alan Olson, one of the plaintiff’s attorneys, is a
document Olson describes as “a 2017 calendar depicting Dr. Arriola’s sick leave, FMLA eligible leave,
and CSU’s holiday closure.” (ECF No. 39.) The exhibit is merely a calendar of 2017 with certain dates in
different colors intended to correspond to, for example, Arriola’s sick leave, Arriola’s FMLA leave, and
Cardinal Stritch’s holiday break. No information is provided as to the source of the exhibit; it appears it is
simply a calendar created by counsel outlining his view as to how relevant periods should be categorized.
It certainly is not evidence that Cardinal Stritch was closed the last ten days of 2017. Moreover, the court
notes that only December 22 and 23 are highlighted in the red color that the exhibit identifies as
corresponding to “CSU Holiday Break.” The remainder of 2017 is highlighted in orange, a color not
identified in the exhibit’s explanatory key.
1
10
example, grading exams or preparing for the upcoming term, cf. 29 C.F.R. § 825.110(c)(3)
(noting that educators “often work outside the classroom or at their homes”).
As for Arriola’s contention that his FMLA leave would not have begun until
September 29, 2017, i.e., after he exhausted his sick leave, Arriola again does not offer
any support. Instead, he offers arguments only as to how, in his view, Cardinal Stritch
allegedly violated Wisconsin’s Family and Medical Leave Act (WFMLA) by substituting
his sick leave allegedly without his consent. (ECF Nos. 37 at 10-12; 53 at 3, 18-19; 54 at
5.) But Arriola is not suing under the WFMLA. And under the federal FMLA, “an
employer may require the employee[] to substitute any of the accrued paid vacation
leave, personal leave, or medical or sick leave of the employee for leave provided
under” the FMLA. 29 U.S.C. § 2612(d)(2).
Cardinal Stritch’s termination of Arriola’s employment was effective December
21, 2017. As a result, Arriola received 14 weeks of leave. Arriola has failed to
demonstrate that he would have been entitled to FMLA leave beyond December 7,
2017—12 weeks from September 14, 2017, his first day of leave. Even if Arriola could
show that he was entitled to leave into 2018 and that Cardinal Stritch had a policy of
granting 12 weeks of leave per calendar year, he still would not be entitled to relief
under the FMLA. An employer may have leave policies that are more generous than the
minimums required under the FMLA. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
87 (2002) (quoting 29 U.S.C. § 2653)). But if the employer violates its own policies and
11
fails to provide an employee with that more generous leave, that does give the
employee a claim under the FMLA. See id.; see also Holmes v. E. Spire Communs., Inc., 135
F. Supp. 2d 657, 667 (D. Md. 2001).
Arriola offers a final argument in an attempt to show he was prejudiced by
Cardinal Stritch’s failure to designate his leave as FMLA leave. He argues that, if his
leave had been designated as FMLA leave, under Cardinal Stritch’s policies he would
have received notice that his leave was ending. (ECF No. 37 at 8-9.) He did not receive
any such notice. Rather, his employment was terminated when his fourth request for an
extension of leave was denied; he was deemed terminated as of the date of the
expiration of his authorized leave, December 21, 2017. Arriola argues he “would have
returned to work earlier had he known he would be discharged.” (ECF No. 53 at 4.)
As a preliminary matter, the court notes that Cardinal Stritch did inform Arriola
that “[f]ailure to return to work on the expiration of the leave of absence will be
considered a voluntary resignation of employment.” (ECF No. 34-3 at 2; see also ECF No.
34-7 at 2.) More importantly, Arriola’s contention that he could have returned to work
earlier is contradicted by the fact that on December 21, 2017, he represented to Cardinal
Stritch that he was unable to return to work as of that date. Specifically, Arriola
presented Cardinal Stritch with his physician’s certification that Arriola “is unable to
return to work until January 22, 2018.” (ECF No. 47, ¶ 19.) He had previously informed
Cardinal Stritch that he “will be on leave until my physician determines I can return
12
back to work.” (ECF No. 34-2 at 1.) No reasonable finder of fact could credit his present
self-serving assertion that he would have returned to work over his contemporaneous
claim that he was unable to work. 2
Cardinal Stritch granted Arriola at least 12 weeks of leave. It terminated his
employment only after learning that, having afforded him all the leave to which he was
entitled, he would not be able to return to work until at least January 22, 2018. The fact
that Cardinal Stritch initially failed to characterize his absence as FMLA leave made no
difference. Consequently, terminating Arriola did not interfere with his rights under the
FMLA. See Hunt v. DaVita, Inc., 680 F.3d 775, 779-80 (7th Cir. 2012).
Given this conclusion, the court finds it unnecessary to determine whether
genuine disputes of material fact exist as to whether Arriola was either eligible or
entitled to receive FMLA leave, including whether he has evidence that he suffered
from a serious health condition. Even if Arriola was both eligible and entitled to receive
FMLA leave, he would have received nothing more than he did. As such, Cardinal
Stritch is entitled to summary judgment on Arriola’s FMLA interference claim.
Moreover, if Arriola falsely claimed on December 21, 2017, that he was unable to work, it calls into
question the veracity of his prior claims. “An employee who fraudulently obtains FMLA leave from an
employer is not protected by FMLA's job restoration or maintenance of health benefits provisions.” 29
C.F.R. § 825.216(d).
2
13
2. Arriola’s FMLA Retaliation claim
In his second claim for relief, Arriola alleges that Cardinal Stritch terminated his
employment “on account of his activity protected by the FMLA.” (ECF No. 1, ¶ 26.)
“The FMLA provides that it is unlawful for an employer ‘to discharge or in any
manner discriminate against’ any employee for opposing any practice the FMLA
makes unlawful.” Goelzer v. Sheboygan Cty., 604 F.3d 987, 995 (7th Cir. 2010) (quoting 29
U.S.C. § 2615(a)(2)). “The difference between a retaliation and interference theory is that
the first requires proof of discriminatory or retaliatory intent while an interference
theory requires only proof that the employer denied the employee his or her
entitlements under the Act.” Goelzer v. Sheboygan Cty., 604 F.3d 987, 995 (7th Cir. 2010)
(brackets and quotation marks omitted).
In moving for summary judgment, Cardinal Stritch contends that Arriola’s
retaliation claim “is simply a rehashing of his FMLA interference claim, which fails for
the reasons stated above.” (ECF No. 32 at 14.) Moreover, it contends that Arriola’s
retaliation claim “fails as a matter of law because there is no evidence from which a
reasonable jury could find that Cardinal Stritch’s decision to terminate [Arriola’s]
employment (or any of Cardinal Stritch’s other actions with respect to [Arriola]) was in
any way causally related to any activity protected under the FMLA.” (Id.)
In response, Arriola argues that a causal connection exists between his leave and
his termination. That connection, he contends, is found in the temporal connection
14
between the December 21, 2017 date on which he informed Cardinal Stritch of his intent
to take leave until January 22, 2018, and the date on which he was terminated, January
2, 2018. (ECF No. 53 at 26.) He also argues that Cardinal Stritch’s “silence throughout
Dr. Arriola’s entire leave regarding the conclusion of his internal complaint further
evidences [Cardinal Stritch’s] retaliatory intent.” (Id.) He states that he “would have
returned to work had [Cardinal Stritch] made accommodations relating to Drs. Arriola
and [the other professor’s] interactions.” (Id.)
“To succeed on a retaliation claim, the plaintiff does not need to prove that
retaliation was the only reason for [his] termination; []he may establish an FMLA
retaliation claim by showing that the protected conduct was a substantial or motivating
factor in the employer’s decision.” Goelzer v. Sheboygan Cty., 604 F.3d 987, 995 (7th Cir.
2010) (quotation marks omitted). A plaintiff may rely on either the direct or indirect
methods of proof to prove he suffered retaliation as a result of exercising his rights
under the FMLA. Smith v. Hope Sch., 560 F.3d 694, 702 (7th Cir. 2009). The direct method
requires proof that the employer intended to punish him for requesting or taking FMLA
leave. Id. The indirect method requires the employee to prove he was performing his job
satisfactorily but yet was treated differently than similarly situated employees who did
not request or take FMLA leave. Id. Arriola attempts to proceed under the direct
method. (ECF No. 53 at 22.)
15
As to Arriola’s first argument, obviously there was a temporal connection
between Cardinal Stritch learning that Arriola continued to be unable to work (and thus
sought additional leave) and its decision to terminate his employment. But that is to be
expected whenever an employer finds it necessary to terminate an employee after that
employee has exhausted his available leave but is still unable to return to work. Indeed,
it would be odd for much time to elapse between the two events. This temporal
connection alone cannot create a triable issue of fact lest every employer is to face trial
whenever it fails to permanently hold a job for an employee following FMLA leave.
By December 21, 2017, Arriola had not worked since September 13, 2017. He had
submitted three notes from Dr. Paukner, each stating only that Arriola would be off
work for a period of time. Upon receiving each of those notes, Cardinal Stritch did not
terminate Arriola’s employment or in any other way retaliate against him. Only when
he submitted a fourth note from Dr. Paukner on December 21, stating that Arriola was
still unable to work for at least another 30 days, did Cardinal Stritch decide to terminate
Arriola’s employment. By that date, Arriola had received more leave than Cardinal
Stritch was required to give him under the FMLA. No reasonable jury could conclude
that the fact that the decision to terminate followed shortly after learning that the
employee continued to be unable to return to work evidenced retaliatory intent.
16
Arriola also contends that Cardinal Stritch’s
silence throughout Dr. Arriola’s entire leave regarding the conclusion his
internal complaint further evidences [Cardinal Stritch]’s retaliatory intent.
[Cardinal Stritch] management was aware that Dr. Arriola would have
returned to work had [Cardinal Stritch] made accommodations relating to
Drs. Arriola and [the other professor’s] interactions. Nonetheless, it strung
him along on an unpaid personal leave and kept him in the dark about the
investigation until it found a convenient time [to] terminate his
employment.
(ECF No. 53 at 26.) The statement that is crucial to his argument—that Cardinal Stritch
was aware Arriola would have returned to work had it made certain unspecified
accommodations—is unsupported by any citation to the record.
The proposed finding of fact that the court has identified as most closely
supporting this assertion is one in which Arriola asserts, and Cardinal Stritch
acknowledges, that as part of his initial report on September 14, 2017, “Arriola informed
Ms. Sukowaty that he could not return to the current work environment unless
measures were taken to ensure the behavior did not continue.” (ECF No. 51, ¶ 29.) But
this statement does not say that Cardinal Stritch knew that Arriola’s repeated requests
for additional leave were because, as Arriola now alleges, he was waiting to hear what
Cardinal Stritch might do about his complaints. Thus, the court looks to the evidentiary
basis for this proposed finding of fact—Arriola’s deposition, where he recounts his
interaction with Sukowaty. He testified:
Prior to the meeting ended, I told -- and I was very stern. I told Jackie,
“Jackie, I cannot work in this environment.” I cannot go back to work,
because, one, I whistle-blew. Two, I was retaliated against. I cannot
17
introduce myself in that environment and be potentially exposed with that
behavior, knowing it was addressed yesterday, and nothing has been done
today. So it's reasonably unfair for myself to allow me to be exposed to
that. …
So by understanding all of this, I was not prepared to go back into that
environment. I says, "I cannot do it unless something is done, and I have -I have rest assured and resolve that it was fairly completed appropriately,
that actions were going to be implemented in place to make sure that this
behavior does not continue.
Q: Okay. So you determined on September 14th that you were not going to
return to work until the investigation had been completed and actions
taken as a result of that investigation; is that right, sir?
A: I didn't term -- I didn't determine that. We collectively, with Jakowaty
[sic], with- the security guard, they--they agreed and assured me that I
wouldn't want to go to work as well. I says, “I can’t go to work, I need to
take time off.”
(ECF No. 49-2 at 6-7.)
In short, Arriola never told Sukowaty that he would be taking leave until
Cardinal Stritch informed him of the results of its investigation. In fact, when asked
whether he had decided on September 14 that he would not be able to return to work
until Cardinal Stritch had completed its investigation, he said he had not decided.
From Cardinal Stritch’s perspective, it was Arriola’s physician, not its alleged
inaction, that was dictating his return. Rather than stating that his return was
dependent upon Cardinal Stritch providing him with certain information, Arriola
explicitly informed Cardinal Stritch, “I will be on leave until my physician determines I
can return back to work ….” (ECF No. 34-3 at 1.) He made other statements
18
communicating to Cardinal Stritch that his return was dependent upon his physician’s
opinion regarding his health. (ECF No. 34-6 at 1 (“I have seen my doctor this afternoon,
and I am being extended for another 30 days…”); ECF No. 34-8 at 1 (“I have just come
home from seeing my doctor and please find his letter of medical leave being extended
to 12/21 …”)). In the absence of evidence that Cardinal Stritch knew that Arriola was
waiting for information as to how Cardinal Stritch planned to address the relationship
between Arriola and the other professor, no reasonable finder of fact could conclude
that Cardinal Stritch acted with discriminatory or retaliatory intent by not updating him
as to what, if anything, it had decided to do.
In sum, Arriola has failed to present evidence from which a reasonable finder of
fact could conclude that Cardinal Stritch terminated Arriola to punish him for using his
FMLA leave. Cardinal Stritch terminated Arriola’s employment not because he used his
FMLA leave but because he had used up that leave but still could not work. The former
is unlawful retaliation; the latter is not.
IT IS THEREFORE ORDERED that Karl Arriola’s motion for partial summary
judgment (ECF No. 36) is denied.
IT IS FURTHER ORDERED that Cardinal Stritch’s motion for summary
judgment (ECF No. 31) is granted. Arriola’s complaint and this action are dismissed.
The Clerk shall enter judgment accordingly.
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IT IS FURTHER ORDERED that Cardinal Stritch’s motion to exclude Arriola’s
expert (ECF No. 27) is dismissed as moot.
Dated at Milwaukee, Wisconsin this 28th day of February, 2019.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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