Jallow, Ebrima v. Kraft Foods Global, Inc.

Filing 38

OPINION and ORDER granting 11 Motion for Summary Judgment; granting 26 Motion to Amend/Correct Answer. The clerk of court is directed to enter judgment in favor of defendant and close this case. Signed by District Judge William M. Conley on 7/14/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
EBRIMA JALLOW,

v.

Plaintiff,

OPINION AND ORDER
15-cv-249-wmc

KRAFT FOODS GLOBAL, INC.,
Defendant.

Plaintiff Ebrima Jallow asserts claims for interference and retaliation under the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., against his former
employer defendant Kraft Foods Global, Inc.
Kraft’s motion for summary judgment.

Pending before the court is defendant

(Dkt. #11.)

Because the court finds that

plaintiff has failed to offer sufficient evidence from which a reasonable jury could find
that he was eligible for FMLA leave in late April 2013, the court will grant defendant’s
motion, enter judgment in its favor on both FMLA claims, and close this case.

UNDISPUTED FACTS 1
A. The Parties
Plaintiff Ebrima Jallow worked at defendant Kraft’s Oscar Meyer facility in
Madison, Wisconsin from May 14, 2001, until April 26, 2013. During his employment,
Jallow held various positions, but for the majority of his tenure, he worked in the
Sanitation Department.

As a member of that department, Jallow worked in other

departments, including the JCON1, KS1, Alkar and Saran Tube departments, as well as
1

Unless otherwise noted, the court finds the following facts undisputed and material for the
purpose of deciding the present motion.

in the “roustabout position,” which involves covering a variety of jobs within the
Sanitation Department as a replacement for other employees who are on vacation or out
sick.
Luke Wiedenfeld was the supervisor of the Sanitation Department during Jallow’s
employment. Laura Newman was the Assistant Human Resources Manager at Kraft’s
Madison facility in 2013. Her job responsibilities included reviewing FMLA requests and
supporting employee relations within the Sanitation Department.

B. Plaintiff’s FMLA Leave History at Kraft
Over the period of his employment with Kraft, Jallow requested and received
FMLA leave on numerous occasions, including for the birth of a child and for his own
health conditions, including hyperthyroidism. Based on past experience, Jallow testified
at his deposition that he understood Kraft’s FMLA policy allowed two days from an
employee’s return to work to request an FMLA absence, and then fourteen days to
submit completed FMLA paperwork to Laura Newman in human resources. Jallow could
recall only one occasion during his employment when he requested FMLA leave and the
request was denied because he failed to make his request within two days of returning to
work. 2

Plaintiff points out that his request for FMLA leave April 22-26, 2013, was also denied, but
given that this request occurred after his employment was terminated, defendant’s
characterization of Jallow’s experience above is fair. (See Def.’s Reply to Def.’s PFOFs (dkt. #28)
¶ 17.)
2

2

C. Jallow’s 2013 Absences
In the first four months of 2013, Jallow missed 35 days of work, with 30 of those
absences occurring in March and April.

Except for his March 4-6, 2013, absence,

plaintiff did not request FMLA leave for any absences. In March 2013, Kraft issued a
written warning to plaintiff regarding his poor attendance during that month, putting
him on notice that his attendance record was “unacceptable, and must be improved.”
(Def.’s PFOFs (dkt. #13) ¶ 39.) 3

D. Plaintiff’s Position and Start Time
Jallow’s shift start time varied at different points in his career, though it was his
duty to find out what his start time for the following day would be. (Jallow Depo. (dkt.
#16) 74.) The parties dispute what Jallow’s start time was on April 24 and 25, 2016.
While plaintiff contends that his start time was 10:00 p.m., Kraft contends that it was
7:00 p.m., largely relying on the fact that Jallow’s start time for every day he worked in
2013 was 7:00 p.m., except for three days when it was 9:00 p.m., and that on a March 46, 2013, FMLA certification form, Jallow indicated that his regular shift began at 7:00
p.m. (Def.’s PFOFs (dkt. #13) ¶¶ 9-12.) Plaintiff acknowledges that his start time for
much of 2013 was 7:00 p.m., because he was covering a temporary vacancy, but disputes
that this this was his start time in late April 2013.
In March 2013, Jallow requested a six-week leave of absence from Kraft. He told his supervisor
that he needed the leave to travel to Africa. The request was denied because Kraft did not have
sufficient staff to cover plaintiff’s position for that extended of a period of time. It is not clear
how this proposed fact is relevant to the issues to be decided by the court at summary judgment,
though this fact may be relevant if this case were to proceed to trial for purposes of assessing
Jallow’s credibility.

3

3

In its response to defendant’s motion for summary judgment, plaintiff posits that
he served in the roustabout position in 2013, and that position had a flexible starting
time between 3:00 p.m. and 11:00 p.m., depending on whether there was a temporary
vacancy within the Sanitation Department. Defendant, however, asserts in its reply that
he was no longer in a roustabout position in April 2013. Instead, on October 8, 2012,
Jallow signed up for and won the saran tube/classics position, which he began working on
December 18, 2012. 4 Still, defendant’s evidence stops short of establishing a set start
time for the saran tube/classics position of 7:00 p.m., and indeed, Jallow testified during
his deposition that he did not always start at 7:00 p.m. in the saran tube department.
(Jallow Depo. (dkt. #16) 24.)

E. Plaintiff’s Termination from Kraft
Plaintiff was absent from Kraft the entire workweek beginning Monday, April 22,
2013. Jallow testified at his deposition that he had a cold that week, and he was “[j]ust
generally tired and taking some meds which were . . . making me drowsy.” (Def.’s PFOFs
(dkt. #13) ¶ 42.) Jallow further explained that he was suffering from “[a] common cold
[that] was there usually; [y]eah, some of those symptoms,” claiming that he was unable
to perform his job at Kraft because he “could not do anything that physical.” (Id.)

Defendant represents that during the course of investigation for this case, it discovered evidence
that Jallow was no longer in the roustabout position in April 2013. Consistent with this evidence,
defendant also filed a motion for leave to file an amended answer, specifically amending its
answer of paragraph 6 of the complaint alleging that Jallow worked in a roustabout position in
April 2013 from “admits” to “denies.” (Dkt. #26.) Plaintiff did not file any opposition to
defendant’s motion. Accordingly, the court will grant defendant’s motion to file an amended
answer. The operative pleading is located at dkt. #26-1.
4

4

As described above, Kraft maintains that his shift began at 7:00 p.m. each day
that week, and there is no dispute that Jallow called the Absenteeism Reporting Service
(“ARS”) at 4:37 p.m. on April 22, to report that he was sick and would not be coming to
work. Jallow also visited an urgent care clinic at 6:30 p.m. that night for “Cough and/or
Chest Congestion” and was diagnosed with “Cough” and “Nasal congestion.” (Def.’s
PFOFs (dkt. #13) ¶ 45.) On April 23, Jallow also called the ARS at 4:51 p.m. to report
that he was too sick to come into work. On April 24, plaintiff waited until 8:10 p.m. to
call ARS and report that he was sick again and would not be coming into work. On April
25, plaintiff did not call until 9:11 p.m. to report that he was too sick to come into work
yet again. Also on April 25, Jallow returned to the urgent care clinic at 6:12 p.m. for the
same cold symptoms.
Having failed to call ARS on April 24 and 25 before 7:00 p.m. -- the start of his
shift, at least according to defendants -- Jallow accumulated two consecutive
AWOL/Unexcused absences under the Attendance Policy. While plaintiff concedes that
a failure to call before his shift on those two days would constitute two
AWOL/Unexcused absences, he contends that his shift did not begin until 10:00 p.m.,
and therefore that his calls to ARS were made before the start of his shift.
According to the Attendance Policy, two consecutive AWOL/Unexcused absences
are grounds for termination. As such, Kraft terminated plaintiff’s employment on April
26, 2013. That same day, Kraft sent a termination letter invoking its policy to both
Jallow and the Union, and Jallow learned of his termination the same day from the
Union.
5

On April 29, 2013, the Union filed a grievance on Jallow’s behalf.

Jallow

exhausted all levels of the grievance process. At the grievance hearings, Jallow stated that
he did not know what time his shift started on the days in question and that he may have
been asleep due to his medications. Jallow also mentioned knee surgery and being at the
doctor’s office as possible reasons for his failure to call in before the start of his shift.
Jallow’s grievance was denied at each step, and the Union declined to pursue arbitration.

F. Jallow’s Post-Termination Request for FMLA
The Friday following his termination, on May 3, 2013, Jallow submitted an FMLA
request and medical certification for his absences from April 22 to May 1, 2013, to
Kraft’s HR department. Plaintiff points out that this request was timely, since it was
submitted within 48 hours of May 1, the end date of his requested FMLA leave. The
medical certification, signed by a doctor at the urgent care clinic Jallow had visited the
week of April 22nd, indicated that Jallow was “unable to perform duties during the time
of illness 4/20/13 - 4/26/13,” and estimated his period of incapacity as “4/22/13-4/26/13.”
(Def.’s Exs., Ex. 10 (dkt. #14-10) pp.4-5.) 5

The form, however, did not state what

condition caused Jallow to be unable to work, nor did it list any essential elements of his
job that Jallow would not be able to perform.

The form notes that the response of “yes” to the question “[i]s the employee unable to perform
any of his /her job functions due to the condition?,” was corrected on May 6, 2013. Presumably,
the doctor completing the form originally checked “no.” (Def.’s Exs., Ex. 10 (dkt. #14-10) p.4.)
This ambiguity is not material to the court’s ruling.
5

6

G. Kraft’s Request of Plaintiff’s Medical Records
Jallow represents that Laura Newman requested that he provide medical
documentation to demonstrate his serious health condition to support his March 2013
FMLA request. Newman disputes that she ever made such a request. Indeed, Newman
testified that Kraft did not even have an authorization for release of medical records form
in 2013. 6

Regardless, four pages of medical records were found in Jallow’s Kraft

personnel file. The cover letter accompanying those pages is dated March 25, 2013, from
“iod Incorporated,” and sent to Ebrima Jallow at Kraft’s address in Madison, Wisconsin.
(Jallow Decl., Ex. A (dkt. #25-1).) In addition, there is an authorization for release of
medical information form for UW Health, signed by Jallow, dated March 12, 2013,
directing that the records be sent to Kraft. (Id. at p.2.)
The timing is potentially material because listed at the bottom of one of the pages
of the medical records as part of his medical history is plaintiff’s 2005 HIV diagnosis.
(Id. at p.6.) Plaintiff admits that he never told Newman, Wiedenfeld or anyone else at
Kraft of this diagnosis, including during the grievance process.

Plaintiff nevertheless

contends that a reasonable jury could infer Kraft learned of his status through his medical
records, which were received on March 25, 2013, approximately one month before his
termination. In contrast, Newman and Wiedenfeld represent that they did not learn of
plaintiff’s HIV status until he filed this lawsuit.

Moreover, Wiedenfeld averred that he did not review Jallow’s FMLA records at any time during
his employment with Kraft.

6

7

H. Jallow’s Employment at Wisconsin Department of Health Services
In March 2013, Jallow began a new job as a Psychiatric Care Technician at the
Wisconsin Department of Health Services (“WDHS”). 7

Plaintiff’s job at WDHS

required him to lift, move and restrain other adults and required him to be prepared for
physical activity at any time. While not disputing that this job required much physical
activity, plaintiff contends that during April 2013, he was in a “training position,” which
was “primarily classroom in nature.” (Pl.’s Resp. to Def.’s PFOFs (dkt. #22) ¶ 28.) Still,
at his deposition, Jallow testified that the classroom training included physical activity;
indeed, it was during this training on April 25, 2013, that he injured his knee. (Def.’s
Reply to Def.’s PFOFs (dkt. #28) ¶ 28; see also Def.’s PFOFs (dkt. #13) ¶ 29 (describing
training as involving learning how to help a patient out of a wheelchair and restraining a
patient during a crisis).)
Jallow worked at WDHS for a total of 15 days in March and 21 days in April
2013, including on each of the workdays that Jallow was absent from Kraft. On each of
the weekdays that Jallow was absent from Kraft from April 22-25, 2013, Jallow worked
full eight-hour shifts at WDHS from 8:00 a.m. to 4:30 p.m. At his deposition, Jallow
acknowledged his work with WDHS on April 24-25, but testified that he did not
consider himself physically capable of performing his work for Kraft on those days.

Plaintiff points out that he worked multiple full-time, and part-time jobs over the course of his
12-year employment with Kraft, something of which Kraft was apparently aware, even providing
references at time. Plaintiff, however, considered Kraft to be his primary employment, receiving
all of his benefits from Kraft.

7

8

OPINION
Plaintiff asserts clams for interference with his rights under the FMLA, 29 U.S.C.
§ 2615(a)(1), and retaliation based on his attempted exercise of his rights under the
FMLA, 29 U.S.C. § 2615(a)(2).

Defendant moves for summary judgment on both

claims, positing several bases. The court will take up each claim in turn.

I. FMLA Interference Claim
The FMLA provides that an eligible employee may take up to twelve weeks of
leave during any twelve-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). To prove an
FMLA interference claim, Jallow must demonstrate that: (1) he was eligible for the
FMLA’s protections; (2) Kraft 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) Kraft denied him FMLA benefits to which he was entitled. Pagel v. Tin, Inc., 695 F.3d
622, 627 (7th Cir. 2012) (internal citation and quotation marks omitted). Defendant
contends that it is entitled to summary judgment because the undisputed facts compel a
finding that Jallow was not entitled to take leave under the FMLA, as well as that he
failed to provide sufficient notice of his entitlement.
An eligible employee is entitled to FMLA leave if “(1) [h]e is afflicted with a
serious health condition and (2) that condition renders h[im] unable to perform the
functions of his job.” Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th Cir. 2011)
(quotations omitted).

As to the first eligibility prong, a “serious health condition
9

entitling an employee to FMLA leave 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).
In his opposition to defendant’s motion for summary judgment, plaintiff claims
entitlement to FMLA leave under the regulation’s provision for “continuing treatment of
a chronic condition.” That provision defines a chronic serious health condition as one
that:
(1) Requires periodic visits (defined as at least twice a year)
for treatment by a health care provider;
(2) Continues over an extended period of time (including
recurring episodes of a single underlying condition); 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). 8 Unfortunately for plaintiff, he did not offer any evidence of at
least biannual periodic doctor visits because of his HIV status, nor that he experienced
episodic incapacity because of his HIV status.
Indeed, the excerpts from the medical records submitted by defendant at summary
judgment only reveal two visits over an 18-month period of time (January 2012 to July
2013) for treatment, or what more accurately amounts to monitoring, of Jallow’s HIV.
(See Def.’s Reply Exs., Ex. 3 (dkt. #30-3) pp.8-12 (1/31/12 visit with UW Health
In support of his request for FMLA, plaintiff submitted a medical authorization form, in which
the physician stated that Jallow was “unable to perform duties during the time of illness 4/20/13 4/26/13,” and estimated his period of incapacity as “4/22/13-4/26/13.” (Ex. 10 (dkt. #14-10)
pp.4-5.) In opposing defendant’s motion, plaintiff does not, however, rely on his short term virus
or cold independent from his HIV status, and for good reason. Plaintiff’s work with WDHS on
those same days would likely undermine any finding of incapacity under 29 C.F.R. § 825.115(a),
which is not tied to a chronic condition.
8

10

infectious disease doctor); pp.19-20 (7/31/13 appointment with UW internal medicine
physician reviewing HIV and latent TB.) Moreover, in those same records, the doctors
noted that Jallow’s “HIV is under excellent control,” and indeed “is undetectable.” (Id. at
19-20.) Similarly, in a record from March 14, 2013, where Jallow’s HIV status was
simply noted as part of his medical history, the doctor described Jallow’s HIV as
“asymptomatic,” that his condition was “stable, [and that the patient] reports
undetectable viral load for several years now.” (Id. at p.15.)9
Instead of offering contrary medical evidence, plaintiff simply states in his brief,
without any medical or legal support that, “[w]hile a common cold by itself may not
qualify for FMLA coverage, a cold in conjunction with HIV is a compounded chronic
serious health condition.” (Pl.’s Opp’n (dkt. #24) 8 (emphasis in original); see also id. at
10 (“[A]ny person with a basic understanding of HIV knows that any viral illness -however small -- can become serious for Jallow.”).) Actually, the relationship between
testing positive for HIV and resistance to the common cold is far less clear, since “[a]
cold normally lasts a week and goes away on its own, even in people with HIV.”
HIV/AIDS and the Common Cold, WebMD.com, http://www.webmd.com/cold-andflu/cold-guide/hiv-aids-colds (last visited July 14, 2016).

Even if a cold might linger

longer (or lead to complications) for someone with a comprised immune system, plaintiff
While these medical records were submitted by defendant, plaintiff failed to submit any of his
own, other than the six pages located in his personnel file. Moreover, plaintiff failed to even
submit a declaration describing any treatment or medical monitoring of his HIV status during the
relevant period of this case. As the Seventh Circuit frequently notes, summary judgment is the
time when the party with the burden of proof at trial must “‘put up or shut up,’ when a party
must show what evidence it has that would convince a trier of fact to accept its version of events.”
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (quoting Schnacht v. Wis. Dep’t
of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
9

11

has not only failed to offer any evidence that he falls into this category (i.e., submit
evidence that he suffered a complication from the cold like pneumonia), the evidence of
record suggesting Jallow is asymptomatic is again to the contrary.
More importantly, “[w]hether an illness or injury constitutes a ‘serious health
condition’ under the FMLA is a legal question that the employee may not sidestep in the
context of summary judgment merely by alleging his condition to be so.” Haefling v.
United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999). The Seventh Circuit has
recently clarified that expert testimony is not required to prove a serious health
condition, but plaintiff is still required to put forth medical evidence to support a finding
that he was afflicted with a serious health condition at the time that he requested FMLA.
Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 838-39 (7th Cir. 2014) (holding
that “expert medical testimony is not required to prove the incapacity,” but noting that
the plaintiff had presented “medical documentation” to support a jury finding of FMLA
eligibility). This, Jallow has not done.
In concluding that Jallow failed to come forward with sufficient evidence to
support a reasonable jury finding that he suffers from a chronic serious health condition,
the court stresses that this holding in no way should be read broadly to apply to HIV
diagnoses more generally. In other words, nothing about this holding casts doubt on
whether HIV could constitute a chronic serious health condition.

Here, however,

plaintiff has failed to put forth medical documentation to support such a finding, and the
limited medical evidence in the record supports a finding that his HIV is well-controlled
and virtually undetectable. Perhaps, plaintiff’s case is representative of advancement in
12

treatment of HIV/AIDS.

Regardless of the reason, the undisputed record does not

support a finding of eligibility under the FMLA.
Relatedly, defendant also seeks summary judgment on the alternate basis that
even if plaintiff were to demonstrate that his HIV status is a serious health condition, he
cannot meet the second prong of the eligibility test -- that his HIV condition “renders
h[im] unable to perform the functions of his job,” Ames, 629 F.3d at 669.

First,

defendant’s attempt to analogize his situation to that of an employee with Type 1
diabetes attempting to rely on that condition to seek FMLA for a stubbed toe is
borderline absurd. (See Def.’s Reply (dkt. #27) 7.) Other than his counsel’s conclusory
statements in his opposition brief, plaintiff ultimately has failed to provide evidence that
the virus he experienced on the last week of April 2013 was due to or otherwise
exacerbated by his HIV status. Certainly, a jury would have to speculate to make any
such finding.
Having found that plaintiff failed to put forth sufficient evidence from which a
reasonable jury could find that Jallow was entitled to FMLA leave in late April 2013, the
court need not reach defendant’s other bases for summary judgment. Still, the court
notes that plaintiff appears to have raised a genuine issue of material fact with respect to
(1) whether defendant had notice of his HIV status given Kraft’s receipt of his March
2013 medical records and (2) the start time of Jallow’s shift on April 24 and 25, 2013,
for purposes of determining whether he failed to follow Kraft’s usual and customary
procedures.

13

II. FMLA Retaliation Claim
Here, plaintiff’s retaliation claim “stands or falls with his interference claim.”
Hansen, 763 F.3d at 835. As the Seventh Circuit recently explained, if a plaintiff was
entitled to take leave under the FMLA for the absences which resulted in his termination,
than the plaintiff can “establish a prima facie case of FMLA retaliation: It is undisputed
that he incurred attendance points for those absences and those points led to the
termination of his employment.” Id. at 835 n.1. In light of the court’s finding that
Jallow failed to put forth sufficient evidence from which a reasonable jury could find him
eligible for FMLA leave, plaintiff cannot rest a retaliation claim on his April 24-25, 2013,
absences.
To the extent plaintiff’s retaliation claim rests on the protected activity of some
other, earlier request for FMLA leave for which he was eligible, Jallow fails to put forth
any evidence from which a reasonable jury could find retaliatory intent. See Pagel v. Tin,
Inc., 695 F.3d 622, 626 (7th Cir. 2012) (“The difference between the two theories is that
a retaliation claim requires the employee to prove discriminatory or retaliatory intent
while an interference claim only requires the employee to prove that the employer denied
him entitlements provided by the Act.”).

Instead, in support of his claim under the

direct method, plaintiff simply cites to the timing of Kraft’s receipt of his medical records
revealing his HIV status in late March 2013 and his April 2013 termination, and
notably, fails to cite to any other FMLA requests during this period of time. (Pl.’s Opp’n
(dkt. #24) 18.) “Suspicious timing alone rarely is sufficient to create a triable issue” and
on a motion for summary judgment “mere temporal proximity is not enough to establish
14

a genuine issue of material fact.” Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009)
(quoting Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) (internal
quotation marks omitted). 10
Accordingly, the court also will grant summary judgment to defendant on
plaintiff’s FMLA retaliation claim.

CONCLUSION
The court’s holding today that plaintiff failed to put forth sufficient evidence from
which a reasonable jury could find Jallow eligible for FMLA is a very narrow one, specific
to the lack of evidence in this case. In particular, the court is not ruling that HIV cannot
satisfy the definition of a chronic serious health condition under the FMLA.

Here,

plaintiff simply failed to put forth evidence to support that conclusion. The court also
notes that the record here might support a claim of discrimination based on plaintiff’s
HIV-positive status as hinted at by plaintiff’s opposition on summary judgment, but
plaintiff did not allege a discrimination claim under the ADA or other law.

ORDER
IT IS ORDERED that:
1) Defendant’s motion for summary judgment (dkt. #11) is GRANTED.
Plaintiff also points to the defendant (purportedly) ignoring the fact that Jallow called in late
for one shift in March as evidence that Kraft terminated Jallow because of his attempt to exercise
his rights under the FMLA. (Pl.’s Opp’n (dkt. #24) 18-19.) The court is hard-pressed to see any
connection between his retaliation claim and this fact, especially given that it was two consecutive
unexcused absences which resulted in Kraft’s termination decision. Regardless, Kraft’s prior
treatment of one late call, coupled with the timing of the March 2015 receipt of medical records,
still does not form a sufficient basis from which a jury could infer retaliatory intent.
10

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2) Defendant Kraft Foods Global, Inc.’s unopposed motion to amend/correct
answer (dkt. #26) is GRANTED.
3) The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered this 14th day of July, 2016.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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