Dulgar, Amber v. Blackhawk Technical College

Brief in Opposition

W.D. Wis.November 4, 2016

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN Amber A. Dulgar, Plaintiff, v. Blackhawk Technical College, Defendant. Case No. 15-cv-706-bbc Blackhawk Technical College’s Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment Josh Johanningmeier GODFREY & KAHN, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Phone: 608-257-3911 Fax: 608-257-0609 jjohanningmeier@gklaw.com Rufino Gaytán III GODFREY & KAHN, S.C. 833 East Michigan Street, Suite 1800 Milwaukee, WI 53202-5615 Phone: 414-273-3500 Fax: 414-273-5198 rgaytan@gklaw.com Attorneys for Defendant Blackhawk Technical College Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 1 of 17 i Table of Contents Table of Authorities ........................................................................................................................ ii Introduction ......................................................................................................................................1 Factual Background .........................................................................................................................3 Argument .........................................................................................................................................4 I. Plaintiff Has Failed to Establish that She Was Not Allowed to Take At Least 12 Weeks of Leave for Medical Reasons. ................................................................................5 A. The College’s FMLA Calculation Method is Supported by the Law. .....................5 B. The College Provided Plaintiff With All The Information Required Under the FMLA.................................................................................................................7 C. Even Using Plaintiff’s Incorrect Calculation Method, She Was Unable to Return to Work Prior to Exhausting Her FMLA Leave Entitlement. ......................9 II. Plaintiff Was Not Subjected To Retaliation. ......................................................................11 III. Plaintiff Has Not Offered Any Evidence of Pretext. .........................................................13 Conclusion .....................................................................................................................................14 Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 2 of 17 ii Table of Authorities Page Cases Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006) ................................................................................................ 5, 6 Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195 (Colo. App. 2003) ................................................................................................. 9 Mellen v. Trs. of Boston Univ., 504 F.3d 21 (1st Cir. 2007) ....................................................................................................... 6 Norman v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321 (M.D. Ala. 2002) ................................................................................... 9 Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016) .................................................................................................. 11 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) .......................................................................................................... 8, 9, 10 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) ................................................................................................................ 14 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ................................................................................................................ 13 Other Authorities U.S. Dep’t of Labor, Wage and Hour Div., Fact Sheet #28I: Calculation of Leave Under the Family and Medical Leave Act (Feb. 2013) .......................... 6 Regulations 29 C.F.R. § 825.200(a).................................................................................................................... 6 29 C.F.R. § 825.200(h) ............................................................................................................... 5, 6 Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 3 of 17 1 Introduction Plaintiff’s motion for summary judgment fails on two levels: (1) the evidence presented is inadequate to meet her burden of proof on her claims; and (2) the law and facts offered by Plaintiff are incomplete and misleading. Ultimately, as demonstrated in Blackhawk Technical College’s motion for summary judgment, Plaintiff cannot establish that she was denied a minimum of 12 weeks of leave under the Family Medical Leave Act (“FMLA”), or that her termination was based on anything other than her inability to return to work after exhausting her FMLA leave entitlement (and several days of additional, discretionary leave granted by the College). Plaintiff’s mistreatment of the evidence is particularly obvious in two aspects of her argument. First, Plaintiff tries to distract the Court by claiming that the College changed its FMLA leave calculation method. Although the evidence does not support this claim, even if it did, Plaintiff has failed to show how the alleged change resulted in any prejudice to her use of FMLA leave from October 28, 2014 through January 13, 2015 or from March 26, 2015 through March 31, 2015, when she exhausted her FMLA leave entitlement. Plaintiff has not shown any prejudice because it does not exist. Even if the College incorrectly communicated to Plaintiff that it calculated FMLA leave usage based on the number of scheduled workdays missed by Plaintiff, the College corrected this alleged mistake on January 6, 2015, when Jennifer Moore informed Plaintiff that the College counted all compensated time (whether actually paid or not). At that time, Plaintiff had yet to exhaust her FMLA leave entitlement. Plaintiff presumably only used FMLA leave for legitimate reasons; thus, a different calculation method would not have changed her behavior in terms of taking time off. By the time Plaintiff needed additional FMLA leave beginning in March 2015, she was well aware that, by the College’s calculation, she only Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 4 of 17 2 had four days of FMLA leave remaining due to her usage of FMLA leave from October 28, 2014 through January 13, 2015. Second, Plaintiff continues to claim that she would have been able to bear through her pain as early as April 13, 2015 if she had known it would have saved her job. In making this claim now, Plaintiff ignores two key facts: (1) at that time, Plaintiff’s treating physician determined that Plaintiff could not return to work prior to April 15, 2015; and (2) as of April 2, 2015, Plaintiff knew, based on a letter from Ms. Moore, that her job was in jeopardy if she did not report to work as directed on April 7. Despite this warning, Plaintiff did not return to work on April 7, 2015, which was actually prior to the surgery from which she needed to recover through April 14. Plaintiff never acknowledges, much less explains, her manipulation of Dr. Francis Kaveggia, who altered the date she was supposedly available to return to work months after the fact and without even knowing she was no longer employed by the College. (Resp. to PPFOF ¶ 100.) With regard to Plaintiff’s retaliation claim, Plaintiff has likewise failed to satisfy her burden of presenting evidence sufficient to establish that the College’s legitimate, non- discriminatory reason for not granting her a second Extended Leave of Absence was pretext for unlawful retaliation. Plaintiff selectively points to Tom Eckert’s recollection of his discussion with Brian Gohlke and Renea Ranguette regarding whether to grant Plaintiff’s second request. However, the basis for Mr. Gohlke’s and Ms. Ranguette’s recommendation to Dr. Eckert was the determination by Plaintiff’s supervisors that Plaintiff was not meeting expectations, despite her limited workload. Plaintiff has not presented any evidence that calls into question the judgment of those supervisors or the veracity of their performance assessment. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 5 of 17 3 In a last ditch effort, Plaintiff pretends that the College’s no-call/no-show policy entitled her to an additional three days of leave. The purpose of that policy is to classify the termination as a resignation (mainly for unemployment insurance purposes). If Plaintiff is claiming that this policy applies to this case, it would mean that she voluntarily resigned her employment, in which case she has no cause of action under the FMLA. Otherwise, that policy is simply irrelevant to these proceedings. Plaintiff’s arguments boil down to her wanting this Court to disregard (1) the FMLA’s bright line rule that only 12 weeks of leave are protected, along with the College’s correct interpretation and leave calculation method under the FMLA, (2) her supervisors’ legitimate expectations which motivated the College to deny her a second extended leave, and (3) her burden of persuasion when it comes to proving pretext as the basis for her discharge. Plaintiff’s summary judgment motion must be denied. Factual Background The College has submitted extensive factual background through the parties’ respective proposed findings of fact and the responses thereto. This factual background information is included to respond to certain facts as presented by Plaintiff in her brief in support of her motion for summary judgment. Contrary to Plaintiff’s claim that Ms. Moore did not review any documentation on the FMLA when she began working at the College (PPFOF ¶ 11), Ms. Moore reviewed the College’s employee handbook, which addresses the College’s FMLA leave policy (Resp. to PPFOF ¶ 11). And while it is certainly Ms. Moore’s responsibility to track a College employee’s use of FMLA leave, the College’s policy is not to track such usage on a per-day basis. Both Mr. Gohlke and Ms. Moore testified that the College tracks FMLA leave usage on a per-week basis pursuant to the FMLA regulations regarding holidays and closures. (Resp. to PPFOF ¶ 12.) Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 6 of 17 4 Plaintiff’s argument places great importance on a September 29, 2014 meeting with Mr. Gohlke and Ms. Moore to discuss her upcoming FMLA leave. (PPFOF ¶¶ 17-18.) Plaintiff claims, based solely on her allegations, that she was told that the College would calculate her FMLA leave entitlement by counting actual workdays that the College was open for business against her FMLA leave entitlement. (PPFOF ¶ 18.) Plaintiff does not specify whether it was Mr. Gohlke or Ms. Moore who made the alleged statement. (Id.) Ms. Moore does not recall getting that specific during this meeting, and Mr. Gohlke testified that he characterized Plaintiff’s leave entitlement as 12 weeks, not 60 days. (Resp. to PPFOF ¶ 18.) Argument Plaintiff mischaracterizes the available evidence and misapplies legal precedent (where offered) to try to salvage her claims. Simply stated, Plaintiff has failed to satisfy the requirements of a prima facie case of interference and retaliation under the FMLA. For these reasons alone, Plaintiff’s motion must be denied. Plaintiff cannot establish a prima facie case of interference with her rights under the FMLA because the evidence proves that the College granted her at least 12 weeks of protected medical leave. Even if Plaintiff could establish a prima facie case of retaliation under the FMLA, she has mischaracterized the only “direct” evidence cited in support of her retaliation claim. Plaintiff has also not presented any evidence to refute the College’s legitimate, non- discriminatory reason for not granting her a second Extended Leave of Absence, which went beyond the 12-week FMLA leave entitlement. For these reasons, as further elaborated below, the College requests that the Court deny Plaintiff’s motion. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 7 of 17 5 I. Plaintiff Has Failed to Establish that She Was Not Allowed to Take At Least 12 Weeks of Leave for Medical Reasons. Even if the Court accepted all of Plaintiff’s proposed findings of fact (which it should not do for the reasons stated in Defendants’ Response to Plaintiff’s Proposed Findings of Fact), Plaintiff does not dispute that she received at least 12 weeks of leave for her own medical conditions.1 Despite Plaintiff’s false assurance that there is no dispute as to whether she was denied FMLA benefits to which she was entitled (Pl.’s Br. in Supp. of Mtn. for Sum. J. at 5), the crux of Plaintiff’s interference claim depends entirely on this issue. The undisputed facts establish that Plaintiff received at least 12 weeks of medical leave, which defeats her interference claim. A. The College’s FMLA Calculation Method is Supported by the Law. The applicable FMLA regulations and the DOL’s guidance both support the College’s method for calculating Plaintiff’s FMLA leave usage. Plaintiff correctly identifies the relevant regulation: 29 C.F.R. § 825.200(h) (2016). Plaintiff even quotes part of it: [I]f for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement. (PPFOF ¶ 38.) Plaintiff ignores the first half of the regulation, which states: [T]he fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count 1 In citing the applicable standard for FMLA interference claims, Plaintiff relies on Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir. 2006). In the same page that Plaintiff cites to support her interference claim, the Seventh Circuit Court of Appeals states: “The FMLA entitles any eligible employee . . . to twelve workweeks of leave . . . .” Id. (emphasis added). Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 8 of 17 6 against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. 29 C.F.R. § 825.200(h) (2016); Resp. to PPFOF ¶ 38. As the regulation plainly states, the portion of the rule upon which Plaintiff relies applies only to full-week closures. The DOL’s Fact Sheet #28I2 also supports this interpretation because it too refers specifically to closures based on weeks, not days. See, e.g., Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir. 2006) (emphasis added) (“The FMLA entitles any eligible employee . . . to twelve workweeks of leave . . . .”). In particular, Fact Sheet #28I states that “[w]hen a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave.” (Emphasis in original); see also 29 C.F.R. § 825.200(h); Mellen v. Trs. of Boston Univ., 504 F.3d 21, 24-26 (1st Cir. 2007) (affirming summary judgment in favor of employer who counted employer-observed holidays against FMLA leave entitlement during weeks in which employee took whole weeks as FMLA leave). The College’s winter holiday ran from Wednesday, December 24, 2014, through Thursday, January 1, 2015. Although the holiday straddled two calendar weeks, the holiday did not result in the closing of the College for any single full workweek. During this holiday, Plaintiff was taking FMLA leave in full-week increments. As such, § 825.200(h) supports the College’s calculation method because the College’s closure did not result in a shutdown of one or more weeks. Section 825.200(a) also supports the College’s calculation method. That regulation states that “an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave . . . .” The workweek in which the College’s Christmas holiday occurred 2 U.S. Dep’t of Labor, Wage and Hour Div., Fact Sheet #28I: Calculation of Leave Under the Family and Medical Leave Act (Feb. 2013), https://www.dol.gov/whd/regs/compliance/whdfs28i.pdf. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 9 of 17 7 was only two workdays long (Monday-Tuesday, December 22-23, 2014), and the workweek in which the College’s New Year holiday occurred was only one workday long (January 2, 2015). Although these were short workweeks, they were workweeks nonetheless. Accepting Plaintiff’s interpretation of § 825.200(h) would render the first half of the regulation (the portion that Plaintiff conveniently ignores) superfluous and runs counter to the basic measurement period for FMLA leave—the workweek. The example provided in the regulation and in DOL’s Fact Sheet #28I also supports this conclusion. That example states that a school which closes two weeks for Christmas/New Year should not count those weeks against an employee’s FMLA leave entitlement. The use of “weeks,” as opposed to days that add up to a week or more, confirms that only full-week shutdowns are not counted under this rule. Plaintiff does not challenge the College’s application of § 825.200(h) to the College’s Thanksgiving holiday workweek, during which Plaintiff was also on FMLA leave. Equally as important, Plaintiff does not offer any rationale for why the College should treat the workweek of the Christmas holiday and the workweek of the New Year holiday in a manner different than the Thanksgiving holiday workweek. Neither § 825.200(a) nor § 825.200(h) support the distinction that Plaintiff wants the Court to make. B. The College Provided Plaintiff With All The Information Required Under the FMLA. Plaintiff also argues that the College’s alleged failure to properly designate her use of FMLA leave constitutes interference with her FMLA rights. In making this claim, Plaintiff relies on the fact that the College did not provide her with a revised Designation Notice in the form published by the United States Department of Labor to make corrections or changes to how the College was treating her absences. However, it is undisputed that Ms. Moore provided Plaintiff Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 10 of 17 8 with written explanations, on January 6, 2015 and again on April 2, 2015 for her second FMLA leave, detailing how her FMLA leave was being calculated and designated. (PPFOF ¶¶ 50, 69; Resp. to PPFOF ¶¶ 50, 69.) These communications, although not in the form of the DOL’s Designation Notice, satisfied the requirement to notify Plaintiff that her leave was being designated as FMLA-qualifying under 29 C.F.R. § 825.108. The Designation Form itself states, “[w]hile use of this form is optional,” using the form correctly essentially guarantees compliance with the regulations. Resp. to PPFOF ¶ 70. Plaintiff has made no allegation and has provided no evidence disputing that the January 6, 2015 e-mail from Ms. Moore to Plaintiff also satisfied the requirements under 29 C.F.R. § 825.300(d)(5). This e-mail notified Plaintiff of the changes made to her designation, which were caused in part due to Plaintiff’s deviation from her initial leave request that would have ended in December 2014. (Resp. to PPFOF ¶ 22.) Moreover, whether the College correctly designated Plaintiff’s leave or not is irrelevant because the College allowed Plaintiff to take enough time off from work to satisfy the FMLA’s requirements. At worst, the College’s alleged failure to designate Plaintiff’s first and second FMLA leave requests appropriately rise only to technical violations of the FMLA for which there is no liability. In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90 (2002), the United States Supreme Court stated that remedies under the FMLA must be “tailored to the harm suffered” by the employee. In that case, the employee was unable to return to work prior to exhausting the 12 weeks of FMLA leave, and her employer actually granted her 30 weeks of leave during the relevant FMLA period. Id. at 84. When the employee could not return to work at the conclusion of this generous leave, she was terminated. Id. The employee argued that the employer violated the FMLA because it failed to properly designate her leave as FMLA, and she believed this Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 11 of 17 9 entitled her to an additional 12 weeks of leave that were properly designated. Id. The Supreme Court disagreed, ruling instead that employees claiming a violation of the FMLA have “the burden of proving . . . real impairment of their rights . . . resulting [in] prejudice.” Id. at 90. Because the employee actually received at least 12 weeks of leave for her medical condition, the employee failed to prove a real impairment of her rights that resulted in prejudice. Other courts have also followed this approach where the employee claiming violations of the FMLA have actually received at least 12 weeks of leave that would satisfy the FMLA’s requirements. See, e.g., Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 199-200 (Colo. App. 2003) (citing Ragsdale); see also Norman v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321 (M.D. Ala. 2002) (holding that employer who provided at least 12 weeks of medical leave in the relevant FMLA period to an employee complied with the FMLA, even if the leave was not properly designated under the FMLA). Based on the undisputed facts, Plaintiff received at least 12 weeks of leave under the FMLA, as well as additional time off beyond her FMLA leave entitlement. Plaintiff could not return to work as of April 14, 2015. Since she exhausted her FMLA leave entitlement as of March 31, 2015, Plaintiff did not suffer any impairment of her rights resulting in prejudice. Summary judgment on her interference claim is therefore appropriate. C. Even Using Plaintiff’s Incorrect Calculation Method, She Was Unable to Return to Work Prior to Exhausting Her FMLA Leave Entitlement. Even if the College should not have counted the seven business days of its winter holiday from December 24, 2014 through January 1, 2015, Plaintiff would have exhausted her leave under this calculation by April 9, 2015. Based on her own admissions and the determination of Dr. Kaveggia at that time, Plaintiff could not have returned to work on the next business day, Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 12 of 17 10 Monday, April 13, 2015.3 Under this scenario, therefore, Plaintiff has also failed to establish any prejudice as required by Ragsdale. Although Plaintiff disagrees with the College’s calculation of her FMLA leave entitlement, Plaintiff knew, as of January 6, 2015 when she received an e-mail from Ms. Moore, that she only had four days of FMLA leave entitlement remaining after the end of her first leave of absence from October 28, 2014 through January 13, 2015. Thus, this calculation did not cause any prejudice for Plaintiff when she needed additional leave in March and April 2015, particularly in light of the fact that the College granted her leave beyond March 31, 2015, the date on which she exhausted her 12-week FMLA leave entitlement. It is undisputed that Plaintiff enjoyed a minimum of 12 weeks of medical leave from the College. Plaintiff also bases her interference claim on the argument that, if her FMLA leave ended on April 9, 2015, she would have been able to return to work by April 15, 2015 since the College granted her first Extended Leave of Absence request. As with Plaintiff’s other arguments, she ignores the law and the evidence. Even under this scenario, Plaintiff essentially admits that she was unable to return to work after exhausting her FMLA leave entitlement, in which case she has no cause of action under the FMLA. See, e.g., Ragsdale, 535 U.S. at 84. In any event, Plaintiff’s argument is not supported by the evidence. Aside from the fact that Plaintiff’s argument relies on assumptions of what the College would have done, Mr. Gohlke’s testimony does not support her claim. As Mr. Gohlke testified, the College granted Plaintiff’s initial 3 Despite her own admissions and the determination of her doctor at that time, Plaintiff claims that she could have returned to work as of April 13, 2015. Plaintiff even requested a retroactive letter from her doctor, after her termination, stating as much. However, the opinions and facts that matter for purposes of Plaintiff’s claims are those that existed and were presented to the College as of April 8, 2015, when the College made its decision to end Plaintiff’s employment. See, e.g., Stoops v. One Call Commc’ns, Inc., 141 F.3d 309, 313 (7th Cir. 1998). “The time for [Plaintiff] to have acted was when [the College] notified [her] that it was relying on” the documentation he provided. Id. at 314. The court added that “medical evidence should come from the employee in time to save his job, not during a subsequent law suit.” Id. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 13 of 17 11 Extended Leave Request because it was a hybrid claim with her need for additional FMLA leave. (Resp. to PPFOF ¶ 101.) By April 9, however, there is no question that Plaintiff had exhausted her leave entitlement, even by her incorrect calculation. As such, it is unlikely that the College would have approved her need for even a few days of additional, non-FMLA leave, particularly in light of her subpar work performance and her continued refusal to correct those performance issues. For these reasons, Plaintiff has failed to establish unlawful interference under the FMLA, and the College thus requests that the Court deny her motion for summary judgment. II. Plaintiff Was Not Subjected To Retaliation. Plaintiff has failed to establish retaliation under the FMLA, making denial of Plaintiff’s motion for summary judgment the only appropriate outcome. Plaintiff argues that she has presented a “convincing mosaic” of circumstantial evidence that would allow a jury to infer an unlawful motive for not granting her additional non-FMLA leave. However, the Seventh Circuit has eliminated the “convincing mosaic” analysis in employment discrimination cases. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016) (stating that “time has come to jettison these diversions and refocus analysis on the substantive legal issue.”). The applicable standard of proof is “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s [protected activity], or other proscribed factor caused the discharge or other adverse employment action.” Id. at 765. Plaintiff’s retaliation claim fails under this standard. Plaintiff’s reliance on the mischaracterized testimony of Dr. Eckert and Mr. Gohlke is not sufficient to support summary judgment in Plaintiff’s favor, particularly in light of the testimony of Ms. Ranguette and Gerri Downing. There is no dispute that Plaintiff had documented performance issues and interpersonal skills deficiencies as early as March 2014, well before she first requested FMLA leave in September 2014. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 14 of 17 12 Plaintiff ignores Dr. Eckert’s testimony that he was acting on the recommendation of Mr. Gohlke and Ms. Ranguette when he agreed to deny Plaintiff’s second Extended Leave of Absence. In particular, Plaintiff ignores Dr. Eckert’s and Mr. Gohlke’s statements that Plaintiff was simply not meeting expectations when she was at work, despite the fact that many of her job duties were being performed by her co-workers as part of an effort by Ms. Ranguette and Ms. Downing to help Plaintiff meet their expectations. Plaintiff’s reliance on Mr. Gohlke’s statements regarding the College’s decision to not reinstate Plaintiff after the DOL investigation—months after her termination—is also misplaced. Mr. Gohlke’s statement that Plaintiff was not reinstated due to her exhaustion of FMLA leave does not relate to the decision to deny Plaintiff additional non-FMLA leave, leading to her termination for failure to report to work. It is that decision—not what the College did post- termination—that matters for purposes of this litigation. As of April 7, 2015, Plaintiff could not return to work after exhausting her FMLA leave, and her failure to meet the expectations of two different supervisors at that time did not give the College any reason to grant her such a benefit. It is irrelevant that, months later, in response to a request from the DOL (which declined to take any action based on Plaintiff’s complaint), the College elected not to reinstate the Plaintiff’s employment. Plaintiff’s reliance on the College’s attendance policy simply misses the mark. (PPFOF ¶¶ 83-84; Resp. to PPFOF ¶ 84.) This policy only addresses how the College characterizes the termination of an employee who misses three consecutive workdays without notifying a manager. The policy does not provide additional leave, as Plaintiff seems to argue. (Pl.’s Brief in Supp. of Mtn. for Sum. J. at 15.) The College did not designate Plaintiff’s termination as a resignation for not reporting to work, nor does Plaintiff argue that she resigned. If Plaintiff is in Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 15 of 17 13 fact arguing that the policy should have applied to her, she is admitting that she resigned her employment, in which case she has no cause of action under the FMLA because she voluntarily left her employment with the College. This policy is wholly irrelevant to these proceedings. Plaintiff’s retaliation claim boils down to her desire for the Court to ignore her subpar performance, which entirely justified the College’s denial of second non-FMLA leave of absence for Plaintiff. The mischaracterized testimony upon which Plaintiff relies is not sufficient to “permit a reasonable factfinder” that her use of FMLA leave caused her discharge. Denial of Plaintiff’s motion for summary judgment is therefore appropriate. III. Plaintiff Has Not Offered Any Evidence of Pretext. In making her retaliation claim, Plaintiff relies solely on the mischaracterized testimony of Dr. Eckert’s recollection of his meeting with Mr. Gohlke and Ms. Ranguette to discuss Plaintiff’s second Extended Leave of Absence request. Plaintiff wholly ignores the underlying rationale for the denial of this second extended leave—her failure to meet expectations, despite a limited workload, from the perspective to Ms. Ranguette and Ms. Downing. As such, the College need not argue that Plaintiff has failed to establish pretext. To the extent that the Court desires such an argument, the College hereby incorporates the argument made in its Motion for Summary Judgment, and the documents in support of that motion. In short, Plaintiff has failed to satisfy her burden of persuading the Court that the College’s legitimate, non-discriminatory reason for denying her second extended leave is pretext (i.e., that the College did not honestly believe the reason) for unlawful retaliation under the FMLA. See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) (ruling that, to defeat a prima facie case of unlawful conduct, an employer need only establish a lawful reason for taking the adverse employment action); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 16 of 17 14 (2000) (an employer’s burden “is one of production, not persuasion; it ‘can involve no credibility assessment.’” Conclusion Plaintiff has failed to satisfy her burden of proving unlawful interference with her rights, or retaliation, under the FMLA. Plaintiff’s motion should be denied. Dated: November 4, 2016 Respectfully submitted, s/ Josh Johanningmeier Josh Johanningmeier (#1041135) GODFREY & KAHN, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Phone: 608-257-3911 Fax: 608-257-0609 jjohanningmeier@gklaw.com Rufino Gaytán III (#1065235) GODFREY & KAHN, S.C. 833 East Michigan Street, Suite 1800 Milwaukee, WI 53202-5615 Phone: 414-273-3500 Fax: 414-273-5198 rgaytan@gklaw.com Attorneys for Defendant Blackhawk Technical College 16342149. Case: 3:15-cv-00706-bbc Document #: 53 Filed: 11/04/16 Page 17 of 17