McKenzie, Afton v. Seneca Foods Corporation

Filing 27

OPINION & ORDER granting in part and denying in part 8 Motion for Summary Judgment. Signed by District Judge James D. Peterson on 3/27/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

AFTON MCKENZIE,
Plaintiff,
v.
SENECA FOODS CORPORATION,

OPINION & ORDER
16-cv-49-jdp

Defendant.
Plaintiff Afton McKenzie, having been diagnosed with Lyme disease, asked her
employer, defendant Seneca Foods Corporation, to approve her medical leave under the
Family and Medical Leave Act (FMLA), 28 U.S.C. § 2601 et seq. Although Seneca approved
the vast majority of McKenzie’s requested medical leave, it determined that McKenzie did
not follow the proper procedures for requesting approval on two days. Because those two
unexcused absences put McKenzie over the limit set by Seneca’s attendance policy, Seneca
fired McKenzie. McKenzie now brings suit against Seneca, alleging that it interfered with her
FMLA rights, retaliated against her for requesting FMLA leave, and violated the Americans
with Disability Act (ADA), 42 U.S.C. § 12101 et seq., by failing to accommodate McKenzie’s
disability.
Seneca moves for summary judgment on all claims. Dkt. 8. The court will grant
summary judgment to Seneca on the FMLA interference and ADA claims. But because
McKenzie adduces evidence from which a reasonable juror could infer that Seneca fired her
in retaliation for her use of FMLA leave, the court will deny Seneca’s motion on this claim,
and that claim will have to be resolved at trial.

UNDISPUTED FACTS
The following facts are undisputed, except where noted.
McKenzie began working at Seneca’s can-manufacturing facility in Baraboo,
Wisconsin, in 2009. Seneca and its employees are covered by the FMLA, under which eligible
employees are entitled to up to 12 workweeks of leave during a 12-month period if the
employee has a serious health condition that renders her unable to perform the functions of
her position or if the employee must care for her spouse, child, or parent with a serious health
condition. 29 U.S.C. § 2612(a)(1).
Seneca had policies governing employee attendance and the taking of FMLA leave.
The attendance policy is basically a point system that leads to progressive discipline.
Employees are assessed a point for each unapproved absence. When an employee accrues 5
points within the previous 12 “worked months,” a human resource representative will speak
with the employee and place a memo documenting the conversation in the employee’s file.
Dkt. 21-1, at 1. Upon accruing 7 points within the previous 12 worked months, the
employee will receive a verbal disciplinary notice. Upon accruing 8 points, the employee will
receive a written disciplinary notice. Upon accruing 9 points, the employee will be
terminated. Id. The policy provides one exception:
Extenuating circumstances, such as but not limited to,
continuing physical illness requirement weekly/monthly
treatments, will be reviewed on an individual basis and may be
exempt from the attendance policy with prior approval from the
Plant Manager.
Id.
Seneca’s FMLA leave policy requires that Seneca employees provide notice both to
Seneca and its third-party FMLA administrator, Unum. Under the policy, an employee must

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provide notice at least 30 days in advance “[w]hen the need for the leave is foreseeable.”
Dkt. 5-1, at 11. If an employee discovers the need for FMLA leave less than 30 days in
advance, he or she “must provide notice of the need for the leave either the same day or the
next business day.” Id. If “the need for FMLA leave is not foreseeable, the employee must
comply with [Seneca’s] usual and customary notice and procedural requirements for
requesting leave and being absent for unusual circumstances.” Id. Seneca’s written policy does
not describe its “usual and customary notice and procedural requirements for requesting
leave,” but the parties agree that Seneca usually required employees to notify Seneca and
Unum of their request for FMLA leave the same day that they take leave or the next business
day. The parties also agree that “Unum makes the ultimate determination whether an
employee is certified for purposes of taking FMLA leave.” Dkt. 19, ¶ 60.
While working at Seneca, McKenzie requested, and Seneca generally approved,
excused time off under the FMLA so that she could care for her mother, who had a serious
medical condition. In February 2013, McKenzie was diagnosed with Lyme disease. Her
symptoms included fatigue, headaches, muscle and joint pain, numbness, dizziness, tremors,
weakness, depression, and anxiety. On March 15, 2013, McKenzie gave Seneca a note from
her doctor explaining that she had been diagnosed with Lyme disease and that it would
sometimes prevent her from working. Seneca accepted that McKenzie’s Lyme disease was a
serious medical condition, and it regularly approved her requests for intermittent FMLA leave
several times per month.
But McKenzie did not always comply with Seneca’s notice requirements. She
sometimes notified Unum of her request for FMLA leave days, weeks, or months after her
absence. Although this practice did not comply with Seneca’s FMLA procedural

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requirements, Unum retroactively approved McKenzie’s requests for FMLA leave, and at
least at first Seneca did not assess points for McKenzie’s retroactively approved FMLA leave.
For example, although Seneca initially assessed McKenzie a point for her absence on August
6, 2013, it reclassified that absence to approved FMLA leave after McKenzie notified Unum
of that date in October.
But beginning in late summer, 2013, McKenzie had a spate of absences, and Seneca
more stringently applied its FMLA leave policy to McKenzie. On August 25, McKenzie called
Seneca and explained that she was taking FMLA leave, but she did not notify Unum. Seneca
assessed McKenzie a point. On September 3, McKenzie left early—without approval—and
was assessed half a point. On September 7, McKenzie received a written disciplinary notice
because she had accumulated 8 points within the past 12 months of work. 1 On September
25, McKenzie again called Seneca and explained that she was taking FMLA leave but did not
notify Unum. Seneca assessed McKenzie another point. On October 18, Seneca assessed
McKenzie half a point for leaving early. On October 28, McKenzie called Seneca and
explained that she would be absent on personal business; Seneca assessed McKenzie another
point. On December 13, McKenzie once again called Seneca and explained that she was
taking FMLA leave but did not notify Unum. Seneca assessed McKenzie another point.
Then things quieted down, and McKenzie was not absent, for any reason, for more
than a month. On January 21, 2014, McKenzie took approved FMLA leave. Three days later,
Seneca told McKenzie that her absences on September 25 and December 13 had not been
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Most of those points were for unexcused absences for which McKenzie never tried to seek
approval for FMLA leave. McKenzie contends that Seneca miscalculated the number of
points she had accrued by September 7, even after accounting for the later reclassification.
But the court need not resolve this factual dispute because the September 7 warning is not at
issue in this case, and the number of points accrued by September 7 is immaterial.

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approved for FMLA leave because she failed to notify Unum. McKenzie told Seneca that she
would seek retroactive approval from Unum for those absences. The next day, January 25,
2014, McKenzie took approved FMLA leave. Three days later, on January 28, Seneca
managers met with McKenzie, explained that she had accumulated 9.5 points, and suspended
her pending further investigation of her absences. After this meeting, McKenzie contacted
Unum to seek retroactive approval of FMLA leave for her August 25, September 25, October
28, and December 13 absences.
On January 29, Unum notified Seneca that it approved FMLA leave for McKenzie’s
August 25 and September 25 absences. Despite Unum’s approval, Seneca did not reclassify
McKenzie’s absences on these dates. This was highly unusual: Seneca’s human resources
administrator could not remember another time in the past six years when Seneca denied
FMLA leave to an employee after Unum approved it.
Seneca fired McKenzie on January 31 because she had accumulated 9.5 points in a
12-month period.

ANALYSIS
Seneca moves for summary judgment on the grounds that it lawfully terminated
McKenzie according to its attendance and FMLA policies.
Summary judgment is appropriate if the moving party “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). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To avoid summary judgment, the opposing

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party “must set forth specific facts showing that there is a genuine issue for trial.” Id. (quoting
Fed. R. Civ. P. 56(e)). A party may not simply rely on the allegations in its pleadings to
create such a dispute, but must “demonstrate that the record, taken as a whole, could permit
a rational finder of fact to rule in [its] favor.” Johnson v. City of Fort Wayne, 91 F.3d 922, 931
(7th Cir. 1996).
A. FMLA interference claim
The FMLA provides that employers may not “interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under [the Act].” 29 U.S.C.
§ 2615(a)(1). McKenzie claims that Seneca interfered with her FMLA rights by firing her for
taking time off as authorized under the FMLA.
To prove an FMLA interference claim, an employee must show that: (1) she was
eligible for the FMLA’s protections; (2) the employer was covered by the FMLA; (3) she was
entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take
leave; and (5) the employer denied her FMLA benefits to which she was entitled. Brown v.
Auto. Components Holdings, LLC, 622 F.3d 685, 689 (7th Cir. 2010). The parties agree that
Seneca is an employer, that McKenzie was an eligible employee, and that Lyme disease is a
serious health condition under the FMLA, such that McKenzie was entitled to take FMLA
leave. They also agree that Seneca fired McKenzie because of her absences. Thus, McKenzie’s
interference claim turns on whether she provided sufficient notice of her intent to take leave.
What constitutes sufficient notice is substantially left to the employer. “FMLA
regulations specifically provide that an employer may require employees ‘to comply with the
employer’s usual and customary notice and procedural requirements for requesting leave,
absent unusual circumstance.’” Id. at 690 (quoting 29 C.F.R. § 825.302(d)). An employee’s

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failure to comply with an employer’s leave policies and procedures is a sufficient ground for
denying FMLA leave requests. See § 825.302(d); Righi v. SMC Corp., 632 F.3d 404, 411 (7th
Cir. 2011).
McKenzie does not dispute that Seneca usually required employees to notify both
Seneca and Unum of their request for FMLA leave the same day or the next business day (if
the need for leave was not foreseeable). Nor does she dispute that she did not follow that
procedure on August 25 and September 25, 2013; she admits that she did not notify Unum
of her request for FMLA leave on those dates until January 29, 2014. Although Unum
eventually approved McKenzie’s request for FMLA leave, Seneca assessed McKenzie a point
for each absence because she failed to follow its procedural requirements for FMLA leave. As
a result, Seneca fired McKenzie for violating its attendance policy, under which she
accumulated enough points to support termination.
McKenzie contends that an employer cannot deny FMLA leave due to the employee’s
failure to follow internal policies “so long as the employee has given at least verbal notice of
the leave in a timely manner.” Dkt. 13, at 25. But McKenzie’s argument is foreclosed by a
long line of Seventh Circuit decisions holding that employers do not interfere with their
employees’ FMLA rights when they require compliance with their internal policies even if
their policies impose stricter notice requirements than the FMLA itself. See Brown, 622 F.3d
at 687 (finding no interference when employer required employee to report to work, return a
specific form, or obtain a “call-in code number” over the phone within five days of her initial
return-to-work date); Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002)
(finding no interference when employer required employee to notify employer of her inability
to work each day of her FMLA leave); Gilliam v. United Parcel Serv., Inc., 233 F.3d 969,

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971-72 (7th Cir. 2000) (finding no interference when employer required employee to provide
his supervisor with a return-to-work date by the third working day of FMLA leave); see also
Martinez v. Harley-Davidson, Inc., No. 10-cv-1081, 2012 WL 3881615, at *18 (E.D. Wis.
Sept. 6, 2012), (“The controlling case law in this circuit allows an employer to rely upon its
internal procedures to report FMLA absences in accordance with their general notice policies
as long as compliance is possible.”). Likewise, Seneca’s policy requiring employees to notify
two individuals—someone at Seneca and someone at Unum—of their FMLA leave request is
a reasonable requirement that does not interfere with employees’ FMLA rights.
Against this line of Seventh Circuit cases, McKenzie relies on two authorities. First,
she cites 29 C.F.R. § 825.302(d), a regulation concerning notice requirements for foreseeable
FMLA leave. But § 825.302(d) specifically states that an employer can deny FMLA leave
when the employee fails to follow internal policies, at least in most circumstances:
An employer may require an employee to comply with the
employer’s usual and customary notice and procedural
requirements for requesting leave, absent unusual circumstances.
. . . Where an employee does not comply with the employer’s
usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected
leave may be delayed or denied. However, FMLA-protected
leave may not be delayed or denied where the employer’s policy
requires notice to be given sooner than set forth in paragraph (a)
of this section and the employee provides timely notice as set
forth in paragraph (a) of this section.
Paragraph (a) of the section requires that notice be given “as soon as practicable.” So
§ 825.302(d) allows employers to deny FMLA leave when the employee does not follow the
employer’s usual and customary notice and procedural requirements unless (1) there are
unusual circumstances or (2) the employer requires notice sooner than is practicable and the
employee did provide notice as soon as practicable. This provision puts some limits on the

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employer’s own notice policies: it would not allow an employer to deny FMLA leave if its
policies ignored unusual circumstances or required notice sooner than was practicable. But this
does not help McKenzie, because she does not allege that she faced any unusual
circumstances or that it was not practicable to notify Unum of her request for FMLA leave at
the same time that she notified Seneca. Rather than support her argument, § 825.302(d)
confirms that Seneca did not interfere with McKenzie’s rights when it denied her request for
FMLA leave because of her failure to comply with its procedural requirements.
Second, McKenzie cites a 1999 opinion letter from the U.S. Department of Labor
Wage and Hour Division, which concerns employers’ ability to impose internal policies and
procedural requirements for requesting FMLA leave:
[The] FMLA’s notification procedures . . . provide that an
employer may not impose stricter notification requirements than
those required under the Act (§ 825.302(g)) and that FMLA
leave cannot be denied or delayed if the employee provides
timely notice (under FMLA), but did not follow the company’s
internal procedures for requesting leave.
. . . . We would construe an employer’s attendance control
policies that require more stringent notification requirements
than those already established in the FMLA regulations and
which would assign points to FMLA leave takers who failed to
follow the company’s more stringent notice policies to be an
attempt to interfere with or to discourage an employee’s attempt
to exercise rights under the FMLA to take leave for a qualifying
reason. We would view these policies to be in direct violation of
the Act and regulations.
U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter, 2 (Jan. 15, 1999),2 superseded on
other grounds by U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (Jan. 6, 2009). In
other words, an employer cannot deny leave to an employee who provides timely notice

2

Available at https://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-101.pdf.

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under the FMLA but does not provide timely notice under the employer’s more stringent
requirements. But this letter runs counter to both Seventh Circuit precedent and the current
version of § 825.302(d) as discussed above. The letter is therefore unpersuasive and not
entitled to any deference. See Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(Opinion letters “are ‘entitled to respect’ . . . but only to the extent that [those]
interpretations have the ‘power to persuade.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944))). The court must follow Seventh Circuit precedent holding that an employer can
deny FMLA leave to an employee who did not follow the employer’s internal procedural
requirements for requesting FMLA leave.
McKenzie offers one last argument: that “Seneca interfered with her use of protected
leave when it miscalculated the number of absences she accrued.” Dkt. 13, at 25-26. But as
the Seventh Circuit has made clear, “the details of a company’s internal leave procedures is a
‘subject for a labor arbitrator, not a court,’” at least when it comes to the analysis of an
FMLA interference claim. Brown, 622 F.3d at 690, n.5 (quoting Gilliam, 233 F.3d at 971)).
The question here is whether Seneca’s denial of McKenzie’s request for FMLA leave was
allowed under the FMLA; the court has determined that it was. Whether Seneca properly
assessed and tabulated points for McKenzie’s unexcused attendance problems is not an
FMLA issue.
The court will grant summary judgment in favor of Seneca on McKenzie’s FMLA
interference claim.
B. FMLA retaliation claim
McKenzie also claims that Seneca retaliated against her for exercising her rights under
the FMLA, in violation of 29 U.S.C. § 2615(a) and (b). The FMLA affords protection to

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employees who suffer adverse employment actions because they have exercised rights
protected by the Act. Lewis v. Sch. Dist. # 70, 523 F.3d 730, 741 (7th Cir. 2008). To survive
summary judgment on a retaliation theory, McKenzie must present evidence that would
allow a reasonable juror to infer intentional discrimination based on her exercise of her
FMLA rights. Scruggs v. Carrier Corp., 688 F.3d 821, 827 (7th Cir. 2012).
McKenzie proceeds under the direct method of proof, which requires that she
“provide evidence that (1) she engaged in activity protected by the FMLA, (2) her employer
took an adverse employment action against her, and (3) the two were causally connected.”
Malin v. Hospira, Inc., 762 F.3d 552, 562 (7th Cir. 2014). Taking FMLA leave is indisputably
a statutorily protected activity. The parties agree that firing McKenzie is a materially adverse
employment action. Accordingly, the central question at summary judgment is whether
McKenzie has presented evidence that would permit a reasonable juror to conclude that
Seneca would not have terminated her but for her FMLA leave.3 Evidence of “suspicious
timing and ambiguous statements,” among other things, is sufficient to withstand summary
judgment. Malin, 762 F.3d at 564 (quoting Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir.
2012)).
Here, McKenzie adduces evidence of a number of suspiciously timed events that
would allow a reasonable juror to infer retaliatory intent. McKenzie accrued 9.5 points on
December 13, 2013, which according to Seneca’s attendance policy “will result in the
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It is unclear whether to prove causation a plaintiff must show merely that the FMLAprotected activity “was a substantial or motivating factor in the employer’s decision,” Goelzer
v. Sheboygan County, 604 F.3d 987, 995 (7th Cir. 2010) (quoting Lewis, 523 F.3d at 741-42),
or that the FMLA-protected activity was the but-for cause of the employer’s decision. Malin,
762 F.3d at 562 n.3. But, just as in Malin, the court need not resolve the question of whether
but-for causation applies to FMLA retaliation claims, because summary judgment would be
inappropriate even under the higher but-for causation standard.

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employee’s employment with Seneca Foods being terminated for excessive absenteeism.”
Dkt. 21-1, at 1. But Seneca did not immediately terminate McKenzie. McKenzie continued
to work at Seneca, without any warning regarding attendance, for more than a month. It was
not until January 24, 2014 (shortly after McKenzie took an approved FMLA leave day on
January 21) that Seneca notified McKenzie that her September 25 and December 13
absences were not approved as FMLA leave. McKenzie took another approved day of FMLA
leave on January 25. On January 28, Seneca told McKenzie that she had accumulated 9.5
points and suspended her pending further investigation of her absences. McKenzie could
have avoided termination if her absences on August 25 and September 25 had been classified
as FMLA leave, but Seneca refused to reclassify those absences even though Unum
retroactively approved them for FMLA leave. Two days later, Seneca fired McKenzie.
Seneca’s refusal to reclassify McKenzie’s August 25 and September 25 absences becomes
even more suspect when one considers that Seneca previously reclassified McKenzie’s August
6 absence to FMLA leave after McKenzie notified Unum in October, and that Seneca’s
human resources manager could not remember another time in the past six years when
Seneca denied FMLA leave to an employee after Unum approved it. Viewing all of these facts
in the light most favorable to McKenzie, a reasonable juror could find that Seneca would not
have fired McKenzie but for her taking FMLA leave. The court will deny Seneca’s motion for
summary judgment on the FMLA retaliation claim.
C. ADA claim
McKenzie also claims that Seneca failed to accommodate her disability, in violation of
the ADA.

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The ADA requires employers to make “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 of [the employer].” 42
U.S.C. § 12112(b)(5)(A). “[T]o establish a prima facie case of failure to accommodate under
the ADA, ‘a plaintiff must show that: (1) she is a qualified individual with a disability; (2) the
employer was aware of her disability; and (3) the employer failed to reasonably accommodate
the disability.’” Cloe v. City of Indianapolis, 712 F.3d 1171, 1176 (7th Cir. 2013) (quoting
Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011)), overruled on other grounds by
Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). For purposes of summary
judgment, Seneca does not dispute the first two elements, although it is far from clear that
Lyme disease is a disability under the ADA. See Worster v. Carlson Wagon Lit Travel, Inc., 353
F. Supp. 2d 257, 267, 269 (D. Conn. 2005) (noting that it “is questionable” whether Lyme
disease qualifies as a disability under the Connecticut Fair Employment Practices Act, which
“has a far broader definition of ‘disabled’ than the ADA”). So the central question on
summary judgment is whether Seneca failed to reasonably accommodate McKenzie’s
disability.
To prove that Seneca failed to reasonably accommodate McKenzie’s disability,
McKenzie must first show “that a reasonable accommodation existed.” Mays v. Principi, 301
F.3d 866, 870 (7th Cir. 2002), abrogated on other grounds by EEOC v. United Airlines, Inc., 693
F.3d 760 (7th Cir. 2012). Reasonable accommodations are “[m]odifications or adjustments
that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges

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of employment as are enjoyed by its other similarly situated employees without disabilities.”
29 C.F.R. § 1630.2(o)(iii).
McKenzie identifies two accommodations that she contends would have been
reasonable. First, she argues that allowing her to use “intermittent leave for her medicalrelated absences, absences which had been approved by Unum weeks after she had notified
Seneca of her intent to use medical leave” would have been a reasonable accommodation.
Dkt. 13, at 20. Second, she argues that allowing her an exemption from Seneca’s attendance
policy would have been a reasonable accommodation. In other words, she suggests that
(1) Seneca should have modified its procedural FMLA reporting requirements to allow
McKenzie to take FMLA leave without notifying Unum, or at least without notifying Unum
right away; or (2) Seneca should have waived its procedural FMLA reporting requirements
entirely.
McKenzie fails to adduce evidence that either accommodation would have been
reasonable, because she makes no showing that Seneca’s existing policies imposed any
impediment to her enjoyment of the same benefits and privileges of employment as her coworkers. McKenzie could take intermittent FMLA leave simply by following Seneca’s
procedures. She does not allege that she was unable to follow those procedures because of her
disability. To the contrary, she did follow those procedures many times and received approved
FMLA leave as a result. Nor does she show that she could not comply with Seneca’s policies
concerning the number of unexcused absences. The ADA is a poor fit for McKenzie’s
situation because Seneca’s FMLA policy offered all the accommodation that McKenzie
needed; she failed to take advantage of it. The court will grant summary judgment in favor of
Seneca on McKenzie’s ADA claim.

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One final point. Seneca argues that McKenzie is not entitled to an award of punitive
damages on any of her discrimination claims. McKenzie offers no argument that she is
entitled to punitive damages, so the court will grant summary judgment in Seneca’s favor on
this issue.

ORDER
IT IS ORDERED that defendant Seneca Foods Corporation’s motion for summary
judgment, Dkt. 8, is GRANTED as to plaintiff Afton McKenzie’s failure to accommodate and
interference claims and request for punitive damages and DENIED as to plaintiff’s retaliation
claim.
Entered March 27, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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