Milkey, Michael v. Erco Worldwide (Usa), Inc.Brief in OppositionW.D. Wis.February 21, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ MICHAEL MILKEY, Plaintiff, Case No.: 16-cv-102 v. ERCO WORLDWIDE (USA), INC., Defendant. ______________________________________________________________________________ PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ NOW COMES Plaintiff, Michael Milkey, through his attorneys, Hawks Quindel, S.C., by Nicholas E. Fairweather, Danielle M. Schroder, and Amanda M. Kuklinski, and submits the following Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment. INTRODUCTION Plaintiff, Michael Milkey (“Milkey”), was a decade-long employee with ERCO Worldwide (USA), Inc. (“ERCO”) when he determined that he needed to seek help for his alcoholism. (Plaintiff’s Proposed Finding of Fact (“PPFOF”) 4). He voluntarily checked himself into inpatient detoxification, and followed up with an intensive outpatient program (“IOP”) to maximize his chances of long-term sobriety. (PPFOF 18, 36, 37). Because of his job’s demanding schedule of rotating twelve (12) hour shifts, his treatment providers determined that he was unable to both attend work and treat in his prescribed intensive outpatient program. (PPFOF 39, 32). He promptly requested continuous FMLA leave from ERCO, and supported this request with a certification from his treatment provider who indicated that he was “unable to work” for the duration of his treatment program from January 19, 2015 to February 23, 2015. (PPFOF 42, 63). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 1 of 45 2 Thereafter, ERCO continued to count Milkey’s absences from January 19, 2015 to February 23, 2015 as “no call/no shows despite knowing that Milkey was in an intensive outpatient program and had submitted a certification for continuous leave. (PPFOF 104, 63). After repeatedly contacting Milkey’s treatment provider to persuade her to return Milkey to work prior to his previously-certified return date of February 23, 2015, ERCO was able to obtain FMLA certification on February 6, 2015 which listed only Milkey’s treatment schedule rather than his total period of incapacity. (PPFOF 57, 76). ERCO then apparently used this certification, obtained by ERCO’s strong-arming, to justify counting nearly all of Milkey’s absences from January 19, 2015 on as unexcused. It did so retroactively, without informing Milkey it was doing so, without informing Milkey that he was expected to be at work in between therapy sessions, and without informing Milkey that it had even received a new certification from his treatment provider. (PPFOF 83, 90). Having successfully performed this bait and switch, ERCO terminated Milkey for alleged “excessive absenteeism” immediately after he returned to work on February 10, 2015 against the explicit advice of his treatment provider and under pressure from ERCO. (PPFOF 104). ERCO seeks now to justify its decision to interfere with Milkey’s FMLA leave and terminate him for his FMLA-protected absences based on a series of post-hoc justifications, none of which were provided at the time of Milkey’s termination and many of which are directly contradicted by the contemporaneous evidence. ERCO contends that Milkey’s FMLA certification did not purport to restrict Milkey from work continuously, but ERCO acknowledged upon receiving Milkey’s FMLA certification that it stated he was “unable to work.” ERCO claims that it did not need to grant Milkey FMLA leave because he did not submit a complete certification, but ERCO never informed him of any of the alleged deficiencies that it now claims. ERCO argues that it actually did not terminate Milkey for excessive absenteeism but for misusing his FMLA Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 2 of 45 3 leave, despite no evidence that he misused his leave and the fact that the only justification ever provided to Milkey for his termination was “excessive absenteeism.” None of these post-hoc justifications support a finding of summary judgment for ERCO on Milkey’s claims of FMLA interference and retaliation. Additionally, Milkey has presented a triable issue of fact regarding his claim of disability discrimination under the Americans with Disabilities Act. In summarily denying his request for medical leave and terminating him for absences related to his disability of alcoholism, ERCO failed to reasonably accommodate Milkey’s disability. Furthermore, a reasonable jury could infer intentional discrimination on the basis of Milkey’s disability based on ERCO’s shifting justifications for Milkey’s termination as well as its disingenuous characterization of his absences as “no call/no shows when it knew that Milkey was absent from work due to his understanding that he was on approved medical leave. The Court should therefore deny ERCO’s motion for summary judgment on all issues. BRIEF SUMMARY OF FACTS Milkey worked as a Production Operator for ERCO beginning in 2006. (PPFOF 4). He worked a demanding schedule of rotating twelve (12) hour shifts which varied between day shifts (6:00 a.m. to 6:00 p.m.) and night shifts (6:00 p.m. to 6:00 a.m.). (PPFOF 12). On January 9, 2015, Milkey voluntarily checked himself into an inpatient detoxification program for alcoholism. (PPFOF 14). Upon his discharge on January 11, 2015, he was referred to additional outpatient treatment with an Alcohol and Other Drug Abuse (“AODA”) counselor. (PPFOF 25, 29). Milkey immediately submitted FMLA paperwork to ERCO for this period of absence and informed ERCO that he would be continuing to treatment with an AODA counselor. (PPFOF 24, 33). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 3 of 45 4 Milkey continued his treatment with Julie Hintzman (“Hintzman”), Advanced Practice Social Worker and Substance Abuse Counselor. (PPFOF 33, 34). Hintzman determined that Milkey required an intensive outpatient program to treat his alcoholism. (PPFOF 36). This four (4) to five (5) week program consisted of group therapy three (3) days per week for three (3) hours as well as one (1) individual session per week. (PPFOF 36, 37). From his first appointment with Hintzman, she made it clear to Milkey that she wanted him to concentrate on his therapy and recovery, that he could not be part of the group unless he was able to take off work. (PPFOF 39). Typically, due to the intensive nature of IOP, employees are completely off work for the duration of the program. (PPFOF 31). In Milkey’s case, his varying work schedule of morning and night shifts and the resulting sleep disturbance made it impossible for him to both complete his intensive outpatient program and attend work. (PPFOF 32, 39). Therefore, Hintzman recommended that Milkey take continuous FMLA for the duration of his IOP, from January 19, 2015 to February 23, 2015. (PPFOF 40). On January 14, 2015, Milkey submitted a request for continuous FMLA leave from January 19, 2015 to February 23, 2015. (PPFOF 42). On January 22, 2015, Hintzman submitted to ERCO the first page of a two (2) page FMLA certification form indicating that Milkey required medical leave from January 19, 2015 to February 23, 2015. (PPFOF 48). Along with it, she submitted a Short-Term Disability Claim form which certified that Milkey was disabled from work and unable to return until February 23, 2015 “due to alcohol use and treatment.” (PPFOF 47). After receiving this form, ERCO Human Resources Manager, Steven Bielefeldt (“Bielefeldt”), called Hintzman to ask her if Milkey could return to work. (PPFOF 53). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 4 of 45 5 On January 28, 2015, Bielefeldt called Milkey to inform him that his FMLA certification was missing the second page, and requested that Milkey return the rest of the form. (PPFOF 59). Milkey reiterated Hintzman’s instruction that he remain off work completely. (PPFOF 62). On January 30, 2015, Hintzman faxed the second page of the FMLA certification, indicating that “at this time Michael is unable to work. He is in intensive treatment for alcoholism.” (PPFOF 63). At this point, ERCO had a complete, unambiguous FMLA certification providing for continuous leave from January 19, 2015 to February 23, 2015. (PPFOF 64, 66). It never represented to Milkey that his leave was unapproved or approved on an intermittent rather than continuous basis. (PPFOF 78). Nevertheless, ERCO continued to deem Milkey’s absences during this time as “no call/no shows. (PPFOF 104). During this period, Bielefeldt repeatedly called Hintzman asking if Milkey was able to return to work. (PPFOF 55). On February 6, 2015, at Bielefeldt’s request, Hintzman submitted a new FMLA certification which stated Milkey’s treatment schedule but included no other information. (PPFOF 76). Bielefeldt did not immediately inform Milkey that Hintzman submitted this certification and did not inform Milkey that ERCO was now considering his leave to be intermittent rather than continuous. (PPFOF 78, 90, 91). On February 9, 2015, Bielefeldt informed Milkey that ERCO expected him to be at work when it did not directly conflict with a treatment session. (PPFOF 87, 89). Until this phone call, Milkey understood that he was approved for FMLA leave continuously from January 19, 2015 to February 2, 2015. (PPFOF 91). Milkey presented to work for his next scheduled shift on February 10, 2015. (PPFOF 95). Because of his return to work, he was forced to drop out of IOP following his February 13, 2015 group session. (PPFOF 98). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 5 of 45 6 Milkey was regularly scheduled to be off work from February 11, 2015 through February 15, 2015. (PPFOF 99). When he returned to work on February 16, 2015, he was suspended pending the results of an investigation into his attendance. (PPFOF 103). On February 25, 2015, Milkey was terminated. (PPFOF 104). Below is a calendar summary of the relevant events leading up to Milkey’s termination, as cited above. January 2015 S M T W Th F S 4 5 6 7 8 9 AM shift inpatient 10 AM shift inpatient 11 AM shift inpatient 12 PM shift Milkey submits Dr. Harter paperwork & FML request (1/9 to 1/14) 13 PM shift 14 off day 1st session with Hintzman 15 off day Milkey submits FML request (1/19 to 2/23) 16 off day 17 off day 18 off day 19 AM shift ERCO deems “no call/no show” 20 AM shift ERCO deems “no call/no show” 21 AM shift ERCO deems “no call/no show” 22 off day individual session 1st page of FMLA & STD form faxed to ERCO (disabled thru 2/23) 23 PM shift IOP 9-12 ERCO deems “no call/no show” 24 PM shift ERCO deems “no call/no show” Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 6 of 45 7 25 PM shift ERCO deems “no call/no show” 26 off day IOP 9-12 27 off day 28 PM shift IOP 9-12 Bielefeldt tells Milkey that missing 2nd page of FMLA form ERCO deems “no call/no show” 29 PM shift ERCO deems “no call/no show” 30 off day IOP 9-12 2nd page of FMLA form faxed to ERCO – “Michael is unable to work.” 31 off day February 2015 S M T W Th F S 1 off day 2 off day IOP 9-12 Bielefeldt sends letter indicating Milkey is eligible for FMLA 3 off day 4 off day IOP 9-12 Hintzman faxes revised page 1 of FMLA form, per Bielefeldt’s request 5 AM shift ERCO deems “no call/no show” 6 AM shift IOP 9-12 Hintzman faxes revised page 2 of FMLA form with Milkey’s treatment schedule, per Bielefeldt’s request ERCO deems “no call/no show” 7 AM shift ERCO deems “no call/no show” Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 7 of 45 8 8 AM shift ERCO deems “no call/no show” 9 PM shift IOP 9-12 Bielefeldt tells Milkey to return to work ERCO deems “no call/no show” 10 PM shift Milkey returns to work 11 off day IOP 9-12 Milkey misses session 12 off day 13 off day IOP 9-12 Milkey drops out of IOP after this session due to work 14 off day 15 off day 16 AM shift Hintzman releases Milkey to work Milkey is suspended 17 18 19 20 21 22 23 24 25 Milkey is terminated 26 27 28 ARGUMENT I. SUMMARY JUDGMENT STANDARD Summary judgment should be granted only if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) quoting Fed R. Civ. P. 56(c). In deciding a motion for summary judgment, the court should not resolve factual disputes or weigh Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 8 of 45 9 conflicting evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000). Instead, “the evidence of the non-movant is to be believed” by the court and “all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Thus, “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence favoring the non- movant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” Reeves, 530 U.S. at 150 (internal citations omitted). II. MILKEY HAS SET FORTH SUFFICIENT EVIDENCE TO CREATE A TRIABLE ISSUE REGARDING ERCO’S INTERFERENCE WITH HIS FMLA RIGHTS. To present a claim of FMLA interference, a plaintiff must show that “(1) he was eligible for the FMLA's protections; (2) his employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he provided sufficient notice of his intent to take leave; and (5) his employer denied him FMLA benefits to which he was entitled.” Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir.2006). No finding of discriminatory intent is required to prove an interference claim. Pagel v. TIN Inc., 695 F.3d 622, 626 (7th Cir. 2012). ERCO is not challenging that Milkey was eligible for the FMLA’s protections (element 1), that the Company is covered by the FMLA (element 2), or that Milkey provided sufficient notice of his intent to take leave (element 4). ERCO submits that Milkey was not entitled to leave under the FMLA and that ERCO did not interfere with his FMLA rights. As described more fully below, the evidence supports that Milkey was entitled to leave under the FMLA for his treatment-related absences from January 19, 2015 through February 23, 2015. After Milkey submitted an FMLA certification for continuous leave, ERCO continuously Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 9 of 45 10 represented to Milkey that he was entitled to FMLA leave and that his absences were excused. However, after receiving Milkey’s certification for continuous leave, ERCO interfered with Milkey’s FMLA rights by contacting his treatment provider directly and strong-arming her to change Milkey’s FMLA certification and to return Milkey to work in direct contradiction to her prior clear and unambiguous FMLA certification providing for continuous leave. ERCO further interfered with Milkey’s restoration rights under the FMLA by discharging him on account of absences that were protected by the FMLA. A. Milkey was Entitled to Continuous FMLA Leave from January 19, 2015 to February 23, 2015. There is no dispute that Milkey had a serious health condition, alcoholism, for which he was eligible for FMLA leave. (Defendant’s Proposed Finding of Fact (“DPFOF”) 95). There also can be no dispute that Milkey notified ERCO of his need for leave and that ERCO represented that he was eligible and entitled to the leave he requested. (PPFOF 42, 45, 71). ERCO now seeks to challenge Milkey’s claims on the basis that he was not entitled to FMLA as previously certified by his healthcare provider and as approved by ERCO prior to February 6, 2015. (PPFOF 45). In support of this, it advances a series of post hoc justifications that are inconsistent with the previous actions and representations of the company and contrary to the medical advice of his treatment providers. The record supports that Milkey provided medical certifications showing he was entitled to continuous leave from January 19, 2015 to February 23, 2015. (PPFOF 64). If ERCO deemed Hintzman’s certification incomplete or insufficient, it was required by the FMLA to inform Milkey of such inadequacies and provide Milkey with the opportunity to cure it. ERCO did not do so. Moreover, ERCO never denied Milkey’s FMLA leave request but instead represented to him that he was entitled to leave while secretly counting all of his absences as unexcused without informing Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 10 of 45 11 him. Therefore, ERCO is estopped from asserting now that Milkey was ineligible. Finally, as a legal matter, Milkey’s absences for participation in an intensive outpatient treatment program constituted “treatment” as defined by the FMLA. i. Milkey Provided an Adequate FMLA Certification Restricting Him From Performing Work Continuously from January 19, 2015 until February 23, 2015. ERCO first seeks to muddy the waters by claiming that Milkey was not entitled to FMLA leave because it never received a complete FMLA certification from Milkey. However, it is undisputed that on January 30, 2015, ERCO received FMLA paperwork indicating that Milkey was “unable to work” from January 19, 2015 to February 23, 2015. (PPFOF 63, 66). ERCO offers no argument in support of its conclusory statement that this FMLA certification did not restrict Milkey from work. (See Def. Br. at 9-10). The timeline of events are critical to understanding the medical documentation ERCO had in hand, which supported Milkey’s complete leave of absence from work. Milkey took FMLA leave beginning January 9, 2015 for inpatient treatment of his serious health condition of alcoholism. (PPFOF 15, 20). After his release from the initial inpatient detoxification on January 11, 2015, Milkey’s inpatient psychologist, Dr. Harter, referred him to an AODA counselor for continued outpatient treatment and individualized counseling. (PPFOF 26, 27, 28). On January 12, 2015, Milkey presented Dr. Harter’s FMLA paperwork to Steven Bielefeldt, which stated that Milkey’s need for additional leave would be further assessed by his AODA counselor. (PPFOF 24, 27).1 When Milkey saw Hintzman on January 14, 2015, she made it clear that Milkey should 1 Dr. Harter’s certification applied only to Milkey’s hospitalization. It did not preclude Milkey from taking additional leave as ERCO now claims; in fact, it explicitly contemplated future absences. (PPFOF 27). Dr. Harter was deferring to an AODA counselor to make further restriction determinations. (PPFOF 28). Additionally, the plain meaning of the phrase “unable to work” is ambiguous, and the legal meaning under the FMLA is not limited to just physical incapacitation. See Part II.A.iv.infra. Dr. Harter’s certification that Milkey was physically able to work does not mean that he was ineligible for further FMLA leave. This interpretation of the FMLA Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 11 of 45 12 remain off work for the duration of his four (4) to five (5) week intensive outpatient treatment program.2 (PPFOF 36). Milkey immediately informed ERCO on January 14, 2015 that he would require continuous FMLA leave until February 23, 2015. (PPFOF 42). As of January 14, 2015, Bielefeldt considered Milkey to be on FMLA and short-term disability leave through February 23, 2015. (PPFOF 45). On January 22, 2015, Hintzman faxed the first page of Milkey’s FMLA certification indicating Milkey was incapacitated from January 19, 2015 to February 23, 2015. (PPFOF 47, 49). The form stated that Milkey would require treatments three (3) times per week, three (3) hours per day. (PPFOF 50). Along with the FMLA certification, Hintzman faxed a short term disability insurance (“STDI”) claim form to ERCO indicating Milkey was diagnosed with 303.90 (alcoholism) and that he was totally disabled from January 9, 2015 to February 23, 2015 “due to alcohol use and treatment.” (PPFOF 47). Bielefeldt did not inform Milkey that the second page of the FMLA certification was missing until January 28, 2015.3 (PPFOF 59). Milkey then promptly followed up with Hintzman regarding the missing page, and on January 30, 2015, Hintzman faxed the second page of the FMLA certification. (PPFOF 63). Consistent with the first page of the FMLA certification and the short-term disability claim form which Hintzman had previously submitted, the second page stated unequivocally that “at this time Michael is unable to work. He is in intensive treatment for alcoholism.” (emphasis added). (PPFOF 63). would lead to absurd results, preventing employees from ever receiving additional FMLA if any treatment provider indicated that they were, at some point, “able to work.” 2 Hintzman testified that contrary to ERCO’s assumption, Milkey did not pressure her to complete the paperwork for continuous leave, but that it was her independent recommendation. (PPFOF 41). 3 Further, Bielefeldt stated nothing to Milkey regarding the first page being incomplete. (PPFOF 60). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 12 of 45 13 Thus, as of January 30, 2015, ERCO had a complete and unambiguous FMLA form supporting Milkey’s claim for continuous leave. (PPFOF 64). Bielefeldt acknowledged receipt of this certification on January 30, 2015, and further acknowledged that the certification “stat[es] that Mike could not work.” (PPFOF 66). Bielefeldt admitted that this certification was not unclear to him. 4 (PPFOF 65). After Bielefeldt received the second page of Milkey’s FMLA certification stating unambiguously that Milkey was “unable to work,” ERCO never notified Milkey in writing that his leave was not approved or was only approved on an intermittent basis. (PPFOF 78). In fact, Milkey never spoke with anyone at ERCO regarding the expectation that he return to work or received notice that his absences were unexcused until February 9, 2015, after ERCO had already counted twelve (12) unexcused absences against him. (PPFOF 91, 104). Because ERCO had a complete FMLA certification on January 30, 2015 indicating that Milkey was completely unable to work, it had no legal basis to justify counting Milkey’s absences on January 19, January 20, January 21, January 23, January 24, January 25, January 28, January 29, February 5, February 6, February 7, and February 8 as unexcused or to terminate him on account of these absences.5 (PPFOF 104). Thus, ERCO interfered with Milkey’s FMLA rights by disciplining him for absences that his treating provider certified were necessary for treatment for his serious health condition. 4 Bielefeldt has provided inconsistent statements about what clarifications he needed after receiving the complete FMLA certification. At Milkey’s unemployment hearing, Bielefeldt testified that after receiving these two (2) pages of the certification, he asked Hintzman to clarify page one (1), i.e. Milkey’s treatment schedule. (PPFOF 69). However, page one (1) of the certification already indicated that Milkey had treatment three (3) times per week, three (3) hours per day. (PPFOF 50). At his deposition, Bielefeldt testified that the handwriting on page one (1) was different than page (2) two, so he had requested page one (1) again. (PPFOF 68). Despite speaking with Hintzman on numerous occasions, Bielefeldt never asked Hintzman to confirm that the original page one (1) was written by her in her handwriting, and he never requested that Hintzman sign page one (1). 5 Bielefeldt testified, and the documentary evidence supports, that ERCO counted all work dates between January 19th and February 7th as no call/no shows for which Milkey was ultimately terminated. (PPFOF 104). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 13 of 45 14 ii. Even if Hintzman’s Certification Were Incomplete or Insufficient, ERCO Could Not Deny Milkey FMLA Leave on this Basis Because It Did Not Provide Milkey an Opportunity to Cure the Alleged Deficiencies. Even if ERCO deemed Hintzman’s certification incomplete or insufficient, ERCO cannot now dispute Milkey’s entitlement to leave on the basis that his medical certification was incomplete because ERCO did not give him an opportunity to cure such alleged deficiencies as required by the FMLA. An employer cannot deny an employee FMLA leave simply because a medical certification is incomplete or insufficient. If an employee’s certification is deficient, the employer must inform the employee and “shall state in writing what additional information is necessary to make the certification complete and sufficient.” 29 C.F.R. § 825.305(c)(italics added). Once the employer has informed the employee of the deficiency, “[t]he employer must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency.”6 Id. (italics added). The regulations “do not authorize the employer to deny FMLA leave where the employee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.” Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 837 (7th Cir. 2014)(bolding added). ERCO failed to give Milkey notice that Hintzman’s medical certification was inadequate, much less give him the opportunity to cure such deficiencies before it summarily terminated him. As described in Part II.A.i. supra, ERCO originally informed Milkey that he was missing page two (2) of Hintzman’s certification; Hintzman then provided the second page, curing the 6 ERCO’s contention that an employee must cure deficiencies in the certification within seven calendar days, Def. Br. at 11, is an incomplete and inaccurate statement of the law. ERCO fails to include the triggering event - the employer’s written notification of deficiency. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 14 of 45 15 deficiency on January 30, 2015.7 (PPFOF 63). Thereafter, ERCO never informed Milkey, in writing or otherwise, of additional deficiencies in Hintzman’s certification. (PPFOF 60). ERCO never told Milkey that it deemed his certification insufficient because it did not receive both pages at the same time, as Defendant now argues was required. (Def. Br. at 11). ERCO never informed Milkey that it had not received “a response to Item 3 on page one of the form,” regarding “the ‘medical facts that support your certification and a brief statement of how the medical facts’ met the criteria of a serious health condition.” (Def. Br. at 11). Indeed, ERCO knew from Dr. Harter’s certification form, Hintzman’s short-term disability insurance form, and Milkey’s own statements that his leave was for treatment of alcoholism. (PPFOF 25, 63, 16). ERCO had all the information it needed regarding Milkey’s serious health condition and never represented otherwise to Milkey. If Hintzman’s certifications had been deficient, ERCO was required to inform Milkey of the deficiencies and give him an opportunity to cure them. Aside from missing one (1) page – a deficiency which Milkey cured – ERCO never notified Milkey of any deficiencies in Hintzman’s certification and never requested additional information from Milkey. ERCO cannot now claim in litigation that Milkey was not entitled to FMLA leave on the basis of alleged deficiencies of which it never informed Milkey and never allowed him to cure. iii. Because ERCO Represented to Milkey that His Continuous FMLA Was Approved, ERCO is Estopped from Asserting the Defense That Milkey Was Not Entitled to Leave. Because ERCO did not inform Milkey that his request for continuous leave was not approved until February 9, 2015, it must be estopped from arguing now that Milkey was not entitled to FMLA protection. The Seventh Circuit recognizes that “an employer who by his silence misled an employee concerning the employee's entitlement to family leave might, if the employee 7 Notably, even this notification of deficiency did not comply with the requirements of the FMLA because it was not in writing. 29 C.F.R. § 825.305(c). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 15 of 45 16 reasonably relied and was harmed as a result, be estopped to plead the defense of ineligibility to the employee's claim of entitlement to family leave.” Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000)(citations omitted); see also Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352, 359 (5th Cir.2006)(“an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an ‘eligible employee’ and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment”). Because ERCO repeatedly represented to Milkey that he was eligible for FMLA leave, it should be equitably estopped from asserting a defense that Milkey was ineligible.8 After Hintzman submitted the second page of Milkey’s FMLA certification on January 30, 2015, indicating that Milkey was unable to work, ERCO gave Milkey no indication that his continuous leave was denied. (PPFOF 78). In fact, ERCO had determined that Milkey’s FMLA leave was approved until February 23rd. (PPFOF 45). Bielefeldt testified on multiple occasions that Milkey’s FMLA was approved through February 23, 2015, and that he represented the same to Milkey: Q: And then you sent him a letter in February stating that his FMLA was approved; -- A: Correct. Q: right? A: Correct. (PPFOF 74). 8 For the same reason, ERCO should be estopped from asserting a defense that Hintzman was not a “health care provider” as defined by the FMLA. Even if the Court holds that Hintzman was not a health care provider, ERCO never raised this as an issue when Milkey submitted his FMLA paperwork nor did it ask him to cure it. However, ERCO does not develop this argument in its moving brief, see Def. Br. at 16, n. 2, so Milkey responds only briefly. Additionally, the cases cited by ERCO in support of its argument are inapplicable here. In both White v. Ag Supply Comp. of Wenatchee, 2016 WL 737925 (E.D. Wash. 2016) and Tsun v. WDI Intern. Inc., 585 Fed. Appx. 489 (9th Cir. 2014) the courts held that the employees were not eligible for FMLA protection because they did not treat with any healthcare provider prior to requesting leave; they did not hold the employee ineligible on the basis of the FMLA certification. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 16 of 45 17 . . . Q): Okay. Gee wiz, any reason for not getting some kind of documentary verification – A: Well, -- Q: -- that he was on intermittent FMLA rather than the FMLA? You had already granted him FMLA leave running from January (inaudible) to February 23rd. A: Correct. (PPFOF 79)(bolding added). . . . Q): Okay. At some point, you did approve Mr. Milkey until February 23rd; correct? MR. JOHNSON: Objection. Asked and answered. A: It was approved through the 23rd, according to his attendance record. (PPFOF 75). Milkey reasonably understood from the documentation he received – including a February 2, 2015 letter advising him he was eligible for leave and a total lack of contact from ERCO informing him that his absences were considered unexcused – that his FMLA was approved. (PPFOF 71, 90). Therefore, he did not report to work, and he did not call ERCO to report he was sick. (PPFOF 84). However, despite never informing Milkey that it had denied his leave, ERCO counted his absences on February 5, 6, 7 and 8 as unexcused in addition to those from January 19, 20, 21, 23, 24, 25, 28, and 29. (PPFOF 91, 104). It was not until February 9, 2015 that Bielefeldt spoke with Milkey to inform him that ERCO expected him to attend work. (PPFOF 89). Milkey reported to work thereafter. Milkey relied on ERCO’s representation that it permitted him to be off of work on FMLA; thus, it is estopped from asserting now that he was not entitled to leave. See Picarazzi v. John Crane, Inc., 2011 WL 486211, at *8–9 (S.D. Tex. Feb. 7, 2011) (citing Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352, 359 (5th Cir.2006)). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 17 of 45 18 iv. Milkey’s Absences for Participation in an Intensive Outpatient Program Were for “Treatment” as Defined by the FMLA. The Family and Medical Leave Act is a remedial statute and must be interpreted to effectuate the purpose of the Act. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998)(citations omitted). The purpose of the FMLA is “to entitle employees to take reasonable leave for medical reasons,” 29 U.S.C. § 2601(b)(2) and “to help working men and women balance the conflicting demands of work and personal life.” Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). When faced with competing possible interpretations of a provision, courts should employ broad rather than narrowly construed constructions of the statute and regulations. See Hodgens v. General Dynamics Corp.,144 F.3d 151, 164 (1st Cir. 1998); Price v. City of Fort Wayne, 117 F.3d 1022, 1025 (7th Cir. 1997)(holding that the cumulative effect of multiple illnesses may rise to the level of a “serious health condition” even though no single illness meets the definition). Under the FMLA, employees are entitled to protected leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a). The phrase “unable to perform the functions of the position” is interpreted broadly. FMLA leave is not limited to periods in which the employee is physically incapacitated or “too sick to work,” Hodgens v. General Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998), but also includes all periods of time off work “because of” a serious health condition, including “examinations to determine if a serious health condition exists and evaluations of the condition,” 29 C.F.R. § 825.113, and time during which the employee is unable to work because he is receiving treatment for a serious health condition. 29 C.F.R. § 825.123. Incapacity from treatment also includes recovery from treatment. 29 C.F.R. § 825.115(e). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 18 of 45 19 ERCO employs a very narrow interpretation of the phrase “unable to work” as “physically incapable of working” to limit Milkey’s FMLA protection to the hours during which he was attending a treatment session. This interpretation is counter to the remedial purpose of the FMLA and the case law interpreting when absences are protected by the FMLA. The legislative history of the FMLA supports a broad definition of the term “unable to perform the functions of the position.” Congress cited a “general test [for FMLA eligibility] that either the underlying health condition or the treatment for it requires that the employee be absent from work on a recurring basis or for more than a few days for treatment or recovery.” S. REP. 103-3, 29, 1993 U.S.C.C.A.N. 3, 31. Nothing in the legislative history suggests that “treatment that requires the employee be absent” may only include time during which the employee is actively in treatment. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998)(acknowledging that, as a remedial statute, the FMLA should be broadly interpreted “to protect absences from work for whatever time the employee needs in order to be diagnosed and treated for a serious medical condition.” (emphasis added)); Woodman v. Meisel Sysco Food Serv. Co., 657 N.W.2d 122, 135 (Mich. Ct. App. 2002)(finding that an employee was “unable to work” as defined by the FMLA when he was instructed to remain off work until a stress test was conducted); Picarazzi v. John Crane, Inc., 2011 WL 486211, at *9 (S.D. Tex. 2011). The Seventh Circuit recognized this broad definition of incapacity due to treatment in Jones v. C&D Techs., Inc., 684 F.3d 673 (7th Cir. 2012). In Jones, the Court notes that 29 C.F.R. § 825.123(a), which indicates that an employee is unable to perform his duties when he “must be absent from work to receive medical treatment for a serious health condition” (emphasis in Jones), “impl[ies] that the employee’s absence is necessary for that employee’s treatment. Jones v. C & D Techs., Inc., 684 F.3d 673, 677–78 (7th Cir. 2012). Therefore, if an employee must be absent from Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 19 of 45 20 work to treat for his serious health condition, he is entitled to any leave that is necessary for such treatment, regardless of whether he is actively in treatment during each absence. ERCO’s argument that Milkey was not entitled to continuous leave as instructed by his treatment provider cites case law which is entirely inapposite to this case. First, ERCO cites 29 C.F.R. § 825.119, which states that leave for treatment of substance abuse is protected under the FMLA if it otherwise meets the requirements of the FMLA. (Def. Br. at 6). However, “absence because of the employee’s use of the substance, rather than for treatment” is explicitly excluded from FMLA coverage. 29 C.F.R. § 825.119(a)(emphasis added). Simply put, an employee may not claim the protection of the FMLA for days on which he was too drunk to work.9 This regulation is clearly not intended to affect the definition of treatment or “unable to work” beyond this narrow exception, and there is no evidence that any of Milkey’s absences from January 19, 2015 to the date of his termination were due to his use of alcohol. However, ERCO cites this regulation and misinterprets the case law in support of its expansive argument to limit the definition of “treatment” to those hours Milkey was actively in treatment. None of the case law cited by ERCO supports such a conclusion. In Darst v. Interstate Brands Corp., 512 F.3d 903 (7th Cir. 2008), the employee was terminated for three (3) absences which occurred before the employee ever sought treatment for his alcoholism. The court in Darst rejected the Plaintiff’s argument that treatment began when the employee simply made phone calls to initiate treatment.10 Because treatment under the FMLA 9 ERCO also cites 29 C.F.R. § 825.119(b), which states that employers may terminate employees for substance abuse if it has an established, non-discriminatory policy that employees may be terminated for substance abuse. It is unclear how ERCO believes this applies to Milkey. ERCO does not point to any such policy and does not claim to have terminated Milkey because of his substance abuse. 10 ERCO uses this case in support of its proposition that whether an employee is “unable to work” cannot be based on the “subjective belief” of the doctor. (Def. Br. at 8). This is not what Darst says. Instead, Darst says that a doctor’s opinion that treatment for alcoholism begins when the alcoholic takes the first step towards seeking treatment cannot override 29 C.F.R. § 825.113(c), which says that “treatment” begins with a visit to a healthcare provider. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 20 of 45 21 does not include “activities that can be initiated without a visit to a health care provider,” 29 C.F.R. § 825.113(c), the court in Darst properly held that the employee’s actions during the three (3) absences at issue, which were limited to phone contact with his insurance company and a receptionist or nurse at his physician’s clinic to arrange for inpatient treatment, but during which time no actual treatment occurred, is not “treatment” as defined by the FMLA. Similarly, in Ruggio v. Tyson Foods, Inc., 2016 WL 1660484, at *7 (N.D. Ind. Apr. 26, 2016), the employee was not entitled to additional leave when “undisputed medical evidence” showed that her serious health condition had resolved and her treatment provider released her to work with no restrictions. Because these employees were under no medical care at the time of their absences – in Darst, the employee had not yet begun treatment and in Ruggio, the employee’s treatment had already ended – they were not entitled to the protections of the FMLA. In contrast to Darst and Ruggio, Milkey’s absences were incurred only after he sought inpatient treatment for detoxification on January 9, 2015. (PFOF 18, 29). They continued on January 14, 2015, with continuing treatment on referral from his inpatient psychologist to an AODA counselor, who recommended that he remain off work continuously. (PFOF 39, 40, 47, 63). His absences were necessary for his treatment, and were not “initiated without a visit to a health care provider,” as ERCO contends. (Def. Br. at 7). In a case analogous to this one, Picarazzi v. John Crane, Inc, an employee requested continuous FMLA leave for a four (4) week period to treat for alcoholism, some of which was for outpatient care for which the employee did not attend treatment every day. Picarazzi v. John Crane, Inc., No. CIV.A. C-10-63, 2011 WL 486211 (S.D. Tex. Feb. 7, 2011). His employer then counted those absences after the employee was released from inpatient care against Picarazzi’s attendance record, though Picarazzi’s treatment provider had not released him to return to work. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 21 of 45 22 Id. at *3. The Court found that these absences were protected by the FMLA regardless of whether Picarazzi actually attended treatment that day, noting that “the language of the Code of Regulations does not indicate that, to qualify for FMLA leave, Plaintiff must have been under the care of a physician or enrolled in a rehab institution for each day that he was on leave.” Id. at *9. (emphasis in original). Contrary to ERCO’s contention, employees are not required to receive medical treatment for each day of their FMLA period to qualify for FMLA protection. In sum, because it was necessary for Milkey’s treatment to be off of work the entire period of his intensive outpatient program from January 19, 2015 to February 23, 2015 (see Part II.A.iv), this entire period of continuous leave constitutes protected “treatment” under the FMLA. v. Milkey’s Serious Health Condition Required Continuous Leave from January 19, 2015 Until February 23, 2015. Milkey has presented enough evidence for a reasonable jury to find that his treatment for his serious health condition required continuous FMLA leave from January 19, 2015 until February 23, 2015; evidence which is completely uncontradicted by any competing medical testimony from ERCO. Milkey’s work schedule consisted of twelve (12) hour days in a rotating schedule of both night shifts (6:00 p.m. to 6:00 a.m.) and day shifts (6:00 a.m. to 6:00 p.m.) (PPFOF 12). In his treatment sessions, Milkey described his work as a stressor which contributed to his drinking, and he would often drink after work to fall asleep. (PPFOF 20, 40). Because of the stress of Milkey’s rotating schedule, Hintzman testified that Milkey required continuous leave in order to participate in his intensive outpatient program, which consisted of three (3) hour group therapy sessions three (3) times a week as well as individual sessions once a week. (PPFOF 36, 37, 40, 50, 81). Because of this intense treatment schedule as well as Milkey’s demanding job, Hintzman told Milkey that continuous leave was necessary for the proper treatment of his alcoholism to reduce the likelihood for relapse. (PFOF 39, 40, 41). Milkey’s need for continuous Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 22 of 45 23 leave was further corroborated by the deposition testimony of Dr. Harter, who testified that intensive outpatient programs are “like a job” and typically employees cannot both work and attend intensive outpatient treatment. (PFOF 31). The testimony of Hintzman and Dr. Harter clearly establish that continuous leave was “necessary for [his] treatment.” Jones v. C & D Techs., Inc., 684 F.3d 673, 677–78 (7th Cir. 2012). Additionally, after ERCO forced him back to work, Milkey dropped out of his intensive outpatient program, reporting to his group therapy session that he was dropping out due to work. (PFOF 98). This further corroborates the testimony of Hintzman and Dr. Harter – Milkey could not successfully complete his treatment program and attend work simultaneously. If ERCO believed that Milkey could have worked between his therapy sessions contrary to the advice of his treating provider, it had one option under the FMLA: to obtain a second opinion at its own expense. 29 U.S.C. § 2613(c)(1); 29 C.F.R. § 825.307. It chose not to do so during Milkey’s employment and even now produces no medical evidence to contradict Milkey’s FMLA documents and the testimony of Hintzman and Harter that Milkey required continuous leave for the duration of his intensive outpatient program. ERCO’s bare assertion that Milkey could have worked periods of some shifts during this time is completely unsupported by any evidence. B. ERCO Interfered with Milkey’s FMLA Rights by Contacting Milkey’s Treatment Provider Directly and by Demanding that He Return to Work, Contrary to His FMLA Certification. ERCO violated the FMLA by contacting Milkey’s treatment provider, Ms. Hintzman, directly and pressuring her to submit a new FMLA form indicating only Milkey’s treatment schedule rather than her previously-certified continuous leave. Under 29 C.F.R. § 825.307(a), Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 23 of 45 24 If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies as set forth in § 825.305(c). It is undisputed that Bielefeldt contacted Hintzman numerous times between January 30, 2015 and February 9, 2015 without Milkey’s consent. (PFOF 53, 55). However, ERCO contends this did not constitute interference because: 1) Milkey was not entitled to FMLA leave; 2) it permissibly contacted Hintzman to clarify her FMLA certifications; and 3) Hintzman was not a healthcare provider as defined by the FMLA. However, none of the asserted defenses entitle ERCO to summary judgment. First, as explained in Part II.A., supra, Milkey was entitled to FMLA leave. Second, ERCO’s conduct does not fall within the narrow exception to the prohibition on contacting healthcare providers. As a preliminary matter, ERCO has again omitted a crucial qualifier to the cited regulation; the employer may contact the health care provider only “after the employer has given the employee an opportunity to cure any deficiencies.” 29 C.F.R. § 825.307(a). ERCO never informed Milkey that his certification was incomplete or insufficient after it received the second page of Hintzman’s certification on January 30, 2015. See Part II.A.ii. Because ERCO never gave Milkey an opportunity to cure any alleged deficiencies in Hintzman’s certification, it was not permitted to contact Hintzman. Additionally, ERCO did not contact Hintzman for the limited permissible purpose of clarifying or authenticating her FMLA certification. Even under the narrow permissible purposes under which employers may contact an employee’s healthcare provider, they may do so only to clarify the certification, meaning “to understand the handwriting on the medical certification or to understand the meaning of a response.” 29 C.F.R. § 825.307(a). Employers “may not ask health care providers for additional information beyond that required by the certification form.” 29 C.F.R. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 24 of 45 25 § 825.307. Yet this is precisely what ERCO did. Rather than contacting Hintzman to clarify the meaning of her responses to the FMLA certification, Bielefeldt contacted her to challenge her decision to take Milkey off work completely during Milkey’s intensive outpatient program and pressure her to release him to work and change her certification to only intermittent FMLA leave. This is not permissible under any circumstances. After receiving the first page of Hintzman’s certification on January 28, 2015 and the second page on January 30, 2015, Bielefeldt conceded that he did not think that her certification was ambiguous. (PFOF 65). Thereafter, he had no reason to contact Hintzman again. Nevertheless, he contacted her numerous times to ask her if Milkey could return to work prior to his February 23, 2015 release date. Hintzman testified: Q: Beyond what's written here, do you remember anything else about that conversation on January 27th? A: I do remember feeling pressured that--I'm sorry, I don't remember his name--had called me several times and wanted to make--wanted to encourage me to have Mike come back to work. Q: He had called you several times before January 27th, or just during this whole time period? A: During this whole time period. . . . Q: When Mr. Bielefeldt would call you, did you feel any sense of intimidation by him? A: Yes. Q: Why do you say that? A: Umm, he is just very, very determined that Michael was going to come back to work. And it almost seemed like he would-- He told Michael that--or the company acted very supportive--especially in the beginning. But then as time went on, it felt like they were not supportive Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 25 of 45 26 … Q: Did you feel an obligation to accommodate what his employer was asking of you? MR. JOHNSON: Asked and answered. THE WITNESS: Yes. BY MS. SCHRODER: Q: Even if it was contrary to your professional opinion? A: Yes. (PFOF 57). Bielefeldt demanded that Hintzman complete an additional FMLA form indicating only the dates that Milkey was in an intensive outpatient session rather than Milkey’s complete and continuous period of incapacity. (PFOF 70). Under this pressure, Hintzman eventually completed a form indicating Milkey’s specific treatment schedule,11 but she never indicated on that form that Milkey was able to return to work between sessions or changed Milkey’s FMLA leave from continuous to intermittent.12 Nevertheless, Bielefeldt used the February 6 2015 certification (completed per his specifications and his non-medical opinion that Milkey could work when not in session) to retroactively designate Milkey’s previously approved absences as no call/no shows despite Hintzman’s January 30, 2015 certification clearly indicating he was “unable to work.” (PFOF 46, 63, 67, 85). Third, Hintzman was a “healthcare provider” as defined by the FMLA and regulations. The Department of Labor has expanded the definition of “healthcare provider” to include “[n]urse practitioners, nurse-midwives, clinical social workers and physician assistants 11 Milkey was unaware that Hintzman had faxed this revised form to ERCO until February 9, 2015. (PFOF 90). 12 Though ERCO policy required employees to submit fitness for duty forms following absences of more than three (3) days, Hintzman did not complete this form for Milkey until February 13, 2015, indicating a release to return to work date of February 16, 2015. (PFOF 101). ERCO did not request that Milkey complete this form prior to February 13, 2015. (Id.) This casts significant doubt on Defendant’s argument that it expected Milkey to be back at work throughout his FMLA leave. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 26 of 45 27 who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law.” 29 C.F.R. § 825.125(b)(2)(emphasis added). “Clinical social worker” is not defined (and definitions vary under state laws) but “authorized to practice” is defined as “authorized to diagnose and treat physical or mental health conditions.” 29 C.F.R. § 825.125(c). Hintzman was certified under Wisconsin law as an Advanced Practice Social Worker (APSW) as well as a Substance Abuse Counselor (SAC). As an Advanced Practice Social Worker, Hintzman was authorized under Wisconsin law to “evaluate and intervene in complex difficulties in psychosocial functioning” as well as “engage in psychotherapeutic activities.” Wis. Admin. Code MPSW § 6.02. As a Substance Abuse Counselor, Hintzman was authorized to “treat substance use disorder.” Wis. Admin. Code MPSW § 1.09(1)(b); Wis. Stat. § 440.88. Because Hintzman was authorized to treat Milkey’s alcoholism and was acting within the scope of her practice, she was a “healthcare provider” as defined by the FMLA. As such, Milkey has shown that ERCO interfered with his FMLA rights by contacting Hintzman when it had no legal authority to do so. Finally, not only did ERCO interfere with Milkey’s FMLA rights through Bielefeldt’s unauthorized contact with Hintzman (requesting that she change her answers to certain portions of the FMLA form), ERCO also interfered with Milkey’s FMLA rights by demanding that he return to work despite Hintzman’s FMLA certification indicating Milkey was unable to do so and Hintzman’s recommendation that he remain off of work to focus on his recovery. (PFOF 47, 63). Had Hintzman’s certification been incomplete, ERCO would have had every right to seek clarification from Milkey and his treatment provider(s). 29 C.F.R. 825.307(a). Had ERCO disagreed with Hintzman’s medical assessment, ERCO would have had every right to obtain a second opinion. 29 C.F.R. 825.307(b). Neither was the case in this instance. Instead, Bielefeldt Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 27 of 45 28 instructed Milkey to return to work in spite of his AODA counselor’s recommendations. Fearful that he would lose his job, Milkey eventually conceded to Bielefeldt’s demands at the price of having to cease treatment. (PFOF 95, 97, 98). ERCO’s conduct constitutes an unlawful interference with Milkey’s FMLA rights. C. ERCO Interfered With Milkey’s FMLA Rights by Suspending and Terminating His Employment. Employees who take FMLA leave are entitled “to be restored by the employer to the position of employment held by the employee when the leave commenced.” 29 U.S.C. § 2614(a)(1)(A). ERCO interfered with Milkey’s restoration rights under the FMLA by suspending him without pay immediately after his release to return to work and terminating him shortly thereafter allegedly for “excessive absenteeism” due to absences which were protected by the FMLA. Pagel v. TIN Inc., 695 F.3d 622, 629-630 (7th Cir. 2012)(liability for termination can arise under both the interference and retaliation provisions of the FMLA). ERCO terminated Milkey for ten (10) absences on days which were protected by the FMLA: January 19, January 20, January 21, January 23, January 24, January 25, January 28, January 29, February 5, February 6, February 7, and February 8.13 During this entire period of time, Milkey was treating for his alcoholism in an intensive outpatient program and under orders from his treatment provider to refrain from working entirely for the duration of the program. See Part II.A. Because these absences were protected by the FMLA, ERCO was not permitted to consider them in its decision to terminate Milkey. 29 C.F.R. § 220(c). Additionally, even if Milkey were able to work on the days he did not have treatment, ERCO assessed absences against his attendance record during which it would have been impossible for him to attend both work and his 13 Bielefeldt testified, and the documentary evidence supports, that ERCO counted all work dates between January 19th and February 7th as no call/no shows for which Milkey was ultimately terminated. (PFOF 46, 67, 85, 104). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 28 of 45 29 treatment sessions. For example, on January 23 and January 28, Milkey had group therapy from 9:00 a.m. to 12:00 p.m. He was also scheduled to work the night shift from 6:00 p.m. to 6:00 a.m., and was given unexcused absences when he did not attend. ERCO apparently expected Milkey to wake for a 9:00 a.m. therapy session and remain awake until the end of his shift at 6:00 a.m. the following day. Such a conclusion is entirely unreasonable and would obviously interfere with his ability to sustain his treatment schedule.14 ERCO’s defense – that it did not interfere with Milkey’s FMLA leave because it had an “honest suspicion” that Milkey was misusing his leave – is unreasonable and cannot be sustained in light of the evidence. An employer cannot escape liability for FMLA interference simply by making a bare assertion that it believed the employee was misusing his FMLA; an honest belief requires “‘reasonable reliance’ on the particularized facts available to the company” at the time. Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 502–03 (6th Cir. 2007)(internal citations omitted). Based on the facts available to it at the time of Milkey’s termination, ERCO had no reason to believe that Milkey was abusing his FMLA leave.15 On January 30, 2015, Hintzman completed an FMLA certification for continuous leave through February 23, 2015. ERCO’s claim that it believed Milkey “misled” them about Hintzman’s return to work 14 To the extent Defendant may argue that ERCO terminated him for his remaining eight (8) absences rather than these two (2), the evidence supports a finding that ERCO terminated Milkey for all of his absences. (PPFOF 101). In an interference claim, the burden is on the employer to prove “that it would have terminated the employee regardless of the employee's FMLA leave.” Janczak, 621 F. App'x 528, 531, 2014 WL 2197794, at *10 (10th Cir. 2015)(citing Sabourin v. Univ. of Utah, 676 F.3d 950, 962 (10th Cir.2012). ERCO cannot do this. 15 Milkey’s missed treatment cannot be used to support ERCO’s claimed “honest belief” that Milkey was misusing his FMLA. First, the only missed treatment date of which ERCO was aware prior to Milkey’s termination was February 11, 2015, which Milkey missed in part due to being forced to work the night shift the previous night. (PFOF 97). ERCO cannot use missed treatment dates uncovered during the course of litigation to retroactively claim he was terminated for misusing his FMLA. Second, all three (3) of the days ERCO contends that Milkey missed a treatment session – January 26, February 4, and February 11 – were regularly scheduled off days. (PFOF 13, 99). Milkey was not expected to be at work those days regardless of his work schedule; ERCO’s contention that Milkey misused FMLA by missing treatment on days he was already scheduled to be off work is entirely illogical. Id. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 29 of 45 30 recommendation is not credible: Milkey’s representation that Hintzman advised him not to work was entirely consistent with the undisputed FMLA paperwork that Hintzman herself submitted to ERCO, and Hintzman testified at her deposition that she wanted Milkey off work completely during his intensive outpatient program. (PFOF 81). ERCO submits that because it was able to convince Milkey’s treating provider to change information in her certification, it could disregard all previous medical documentation certifying him for continuous leave and discipline Milkey for past conduct which was in compliance with his treating provider’s previous recommendations without informing Milkey that it was doing so. Such a conclusion subverts the purpose of the FMLA and would allow employers, rather than healthcare providers, to determine whether an employee has a serious health condition requiring protected leave from work. Similarly, the fact that, after numerous attempts, ERCO eventually succeeded in persuading Hintzman to change her certification and forcing Milkey back to work also does not support ERCO’s position that Milkey was misusing his leave. Rather, these sets of undisputed facts support Milkey’s interference claim. After strong-arming Hintzman into changing Milkey’s FMLA certification, ERCO did not inform Milkey that it received this new certification, nor did it inform Milkey that his leave was not approved until February 9, 2015, when in a conference call with Milkey and Hintzman, Bielefeldt demanded that Milkey return to work. (PFOF 88-92). Prior to this phone call, Milkey understood he had been approved for continuous leave until February 23, 2015. (PFOF 91). Nevertheless, in order to attempt to avoid losing his job, Milkey returned to work immediately thereafter (and despite the detrimental effect to his treatment and recovery). He got a formal release to work from Hintzman on February 16, 2015, the day he was suspended. Milkey complied with his treating provider’s FMLA certification until ERCO demanded otherwise, then immediately returned to work; yet he was still suspended and terminated. The Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 30 of 45 31 undisputed material facts support that ERCO interfered with Milkey’s unequivocal right to be restored to his position after taking FMLA leave. III. MILKEY HAS PRESENTED SUFFICIENT EVIDENCE FOR A REASONABLE JURY TO FIND THAT ERCO RETALIATED AGAINST HIM FOR HIS USE OF FMLA LEAVE. To establish FMLA retaliation, a plaintiff “must present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two.” Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 593 (7th Cir. 2008). “[T]he plaintiff does not need to prove that “retaliation was the only reason for her 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., Wis., 604 F.3d 987, 995 (7th Cir. 2010)(emphasis in original)(internal citations omitted). As established above, Milkey engaged in a statutorily-protected activity in taking FMLA-protected leave from January 9, 2015 to February 23, 2015, which was cut short when he was forced to return to work on February 9, 2015. It is undisputed that ERCO took a materially adverse action against Milkey by terminating him. (PFOF 104). Milkey has presented sufficient direct evidence of a causal connection between his statutorily-protected FMLA leave and his termination to create a genuine dispute of material fact to preclude summary judgment on this claim. Direct evidence of retaliation need not be “an admission of discrimination,” but can be established by “a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker.” Cole v. Illinois, 562 F.3d 812, 815 (7th Cir. 2009)(internal citations omitted); Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th Cir. 2009)(“Under the direct method, proof of discrimination is not limited to near-admissions by the employer that its decisions were based on a proscribed criterion, but rather, includes circumstantial Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 31 of 45 32 evidence which suggests discrimination albeit through a longer chain of inferences”). (internal citations omitted). The “convincing mosaic” standard simply means that a plaintiff must present circumstantial evidence that, when considered together, “would permit a jury to believe that the defendant[] retaliated against [him] for exercising [his] FMLA rights.” Cole, 562 F.3d at 815, n.2. Milkey has presented direct evidence of FMLA retaliation in that ERCO harbored animus towards him for his use of FMLA leave and terminated him on the basis of his FMLA leave. First, it tried to evade its obligations under the FMLA by making numerous phone calls to Milkey’s treatment provider to pressure her into changing her FMLA certification from continuous to intermittent leave. See Section I.C., infra. Once it received a certification on February 6, 2015 that it perceived changed Milkey’s continuous leave to intermittent leave, it then retroactively counted all of his absences from January 19, 2015 to February 6, 2015 as unprotected and unexcused, despite having a valid FMLA certification for continuous leave for that time period. (PFOF 46, 67, 85, 104). ERCO performed this “bait and switch” without informing Milkey that it was doing so and without informing Milkey that he was accumulating unexcused absences. (PFOF 83, 91). See Part II.A.iii. Additionally, as argued in Part II.C., supra, a reasonable jury could determine that ERCO did not have an “honest belief” that Milkey was misusing his FMLA. ERCO’s unreasonable suspicion that Milkey was misusing his leave could itself raise an inference of intentional retaliation. See Ley v. Wisconsin Bell, Inc., 819 F.Supp.2d 864, 871 (E.D. Wis. 2011)(finding that a jury could reasonably infer discriminatory animus from a supervisor’s home visits to employees on FMLA). In other words, ERCO’s excessive and unreasonable scrutiny of Milkey’s absences from work while on FMLA is itself evidence of discriminatory animus towards Milkey’s use of FMLA. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 32 of 45 33 Furthermore, ERCO’s submission now, in litigation, that it terminated Milkey for “excessive absenteeism and for misusing his leave,” (bolding added) is suspect in light of the sole contemporaneous reason ERCO gave for terminating Milkey, which was for “excessive absenteeism.” ERCO’s termination letter states, Mike, your attendance has been marginal to unacceptable for the past three years. ERCO’s attendance standards have been communicated to you many times, and despite these attempts and movement into the progressive discipline process, there has been no improvement. It is the duty of every employee to avoid absences from work. This is a responsibility that you had to the company and to your fellow employees. (PPFOF 104). At the time of the termination, ERCO made no reference to Milkey that “abuse” or “misuse” of his FMLA leave was the reason for his discharge. Instead, ERCO merely referred to Milkey’s attendance record over the course of three (3) years. ERCO’s change in position over the course of this litigation suggests that its original proffered reason may have been illegitimate. Given Milkey’s average attendance record16 prior to taking FMLA leave, a reasonable jury could infer discriminatory animus from this cryptic reference to “excessive absenteeism,” which is actually attributable to FMLA protected absences. ERCO may not escape liability for retaliating against Milkey for his use of FMLA leave simply because it does not discriminate against everyone who takes FMLA leave. Moreover, the FMLA leaves of Bartlett and Ksoniek are easily distinguishable from Milkey: Milkey, on the advice of treatment providers, took continuous leave for his outpatient substance abuse treatment. 16 Indeed, Milkey’s attendance record leading up to his FMLA use was not unreasonable. For instance, in 2014, Milkey had not exceeded his allotted holiday and banked vacation days. (PFOF 9). He had only taken four (4) sick days (PPFOF 9), and both Bielefeldt and Milkey agreed that six (6) sick days would be approaching an unacceptable amount. (PFOF 10). Bielefeldt testified that six (6) sick days was “borderline.” (Id.). Other employees’ attendance records show analogous, or greater absences, and there is no evidence in the record that those employees were disciplined. (PFOF 110, 111). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 33 of 45 34 In contrast, Bartlett and Ksoniek were apparently not provided the same medical advice. When Milkey’s FMLA certification indicated that he could not work in between therapy sessions, Bielefeldt contacted Hintzman numerous times in an attempt to persuade her to return Milkey to work before her recommended February 23, 2015 release date. A reasonable jury could infer from these facts that ERCO terminated Milkey because, unlike Bartlett and Ksoniek, he took continuous FMLA leave rather than intermittent. Additionally, Ksoniek did not request FMLA leave until September 15, 2015 (Response to DPFOF 163); over six (6) months after Milkey’s termination and after Milkey filed his disability discrimination complaint in the Wisconsin Equal Rights Division. (PFOF 112). A reasonable jury could infer that ERCO approved Ksoniek’s leave because it “learned its lesson” from Milkey’s complaint. Finally, Milkey’s own testimony regarding why he believed he was terminated is irrelevant. Milkey is not an attorney and cannot testify to any legal conclusions. To the extent Milkey’s subjective beliefs regarding the reason for his termination are considered, Milkey also testified to the role he believed his FMLA played, stating that he believed he was on FMLA when he was terminated and “[Bielefeldt] manipulated Julie to put the schedule on the lines that he wanted so he could turn to it to where was, umm, gonna be put on intermittent [leave].” (PPFOF 105). IV. A GENUINE FACTUAL DISPUTE EXISTS AS TO WHETHER ERCO DISCRIMINATED AGAINST MILKEY ON THE BASIS ON HIS DISABILITY. The Americans with Disabilities Act (“ADA”) proscribes discrimination against a qualified individual with a disability “because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). As a threshold requirement, a plaintiff must first establish that he has a disability as defined by the Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 34 of 45 35 ADA. Disability is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). A plaintiff must also demonstrate that he is qualified for the position in question. An individual is qualified if he “satisfies the pre-requisites for the position” and “can perform the essential functions of the position held or desired, with or without reasonable accommodation.” Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996) (quoting 29 C.F.R. app. § 1630.2(m)). Once a plaintiff has established that he is a qualified individual with a disability, he may show discrimination in either of two (2) ways: by presenting evidence of disparate treatment or by showing a failure to accommodate. See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021- 22 (7th Cir. 1997). Disparate treatment claims arise from language in the ADA prohibiting covered entities from “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee,” 42 U.S.C. § 12112(b)(1), while failure to accommodate claims stem from language in the ADA defining discrimination in part as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual.” 42 U.S.C. § 12112(b)(5)(A). A. Milkey is a Qualified Individual With a Disability. As a threshold requirement, a plaintiff must first establish that he has a disability as defined by the ADA. Disability is defined as “(A) a physical or mental impairment that substantially limits one (1) or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). A plaintiff must also demonstrate that he is qualified for the position in question. An individual is qualified if he “satisfies the pre-requisites for the position” and “can perform the essential functions of the Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 35 of 45 36 position held or desired, with or without reasonable accommodation.” Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996) (quoting 29 C.F.R. app. § 1630.2(m)). ERCO appears to dispute that Milkey was an individual with a disability, though it argues no facts in support of this conclusion.17 Courts have generally assumed that alcoholism constitutes a disability within the ADAAA. Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996) (noting without discussion that alcoholism and other forms of addiction are disabilities within the meaning of the ADA); Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1049 (7th Cir. 1997) (acknowledging without discussion that alcoholism is a disability); Peyton v. Otis Elevator Co., 72 F. Supp. 2d 915, 919 (N.D. Ill. 1999)(“alcoholism is a presumed disability for ADA purposes”); Id., n. 5 (“it would seem that the statute itself acknowledges alcoholism as a disability by the very inclusion of [42 U.S.C.] Section 12114(c)(4)”). Moreover, the undisputed facts establish that Milkey’s alcoholism substantially interfered with major life activities. Whether an individual’s impairment “substantially limits a major life activity” so as to qualify as a disability “shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard. 29 C.F.R. § 1630.2(j)(1)(i). Major life activities include “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” 29 C.F.R. § 1630.2(i)(1)(i). Milkey testified that his drinking substantially interfered with his sleep. (PPFOF 20). His alcoholism also affected his interpersonal relationships; it was a significant factor in his divorce and it limited his 17 Though Milkey will ultimately have the burden of proving he is an individual with a disability at trial, at the summary judgment stage the moving party has the burden to show that there is no dispute of material facts. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 36 of 45 37 interactions with his family. (PPFOF 21, 22). Because Milkey’s alcoholism substantially interfered with his sleep and his interpersonal relationships, it constitutes a “disability” under the ADA. B. ERCO Failed to Reasonably Accommodate Milkey’s Disability in the Form of a Leave of Absence. In failure to accommodate claims, unlike disparate treatment claims, the McDonnell Douglas burden-shifting approach is not necessary or appropriate. See Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). Instead, the plaintiff, in addition to showing that he is a qualified individual with a disability, must show that the employer was aware of his disability and still failed to reasonably accommodate it. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). In this case, ERCO failed to provide Milkey a reasonable accommodation in the form of a medical leave of absence. i. ERCO Failed to Engage in the Interactive Process to Determine Whether It Could Accommodate Milkey. When an employee requests an accommodation, the employer is obligated to engage in an “interactive process” to determine whether it can accommodate the employee. Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir.1998). If there is a breakdown in communication between the employer and employee in attempting to determine whether there is an accommodation available, the factfinder must “isolate the cause of the breakdown and then assign responsibility.” Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir.1996) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)). In order to claim a failure to accommodate based on a breakdown in the interactive process, a plaintiff must show that the employer was responsible for such breakdown. Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 975–76 (7th Cir. 2009). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 37 of 45 38 A genuine factual dispute exists whether ERCO failed to engage in the interactive process to determine if a reasonable accommodation could be provided which would have allowed Milkey to perform his position. On January 14, 2015, Milkey requested continuous medical leave for his intensive outpatient program from January 19, 2015 to February 23, 2015. (PFOF 42). This was confirmed by Hintzman’s January 30, 2015 FMLA certification indicating that Milkey was “unable to work.” Following this certification, ERCO appeared to accommodate Milkey’s leave of absence. However, on February 9, 2015 – nearly three (3) weeks into his intensive outpatient program – ERCO then represented that it would not accommodate Milkey’s need for leave. By this point, unbeknownst to Milkey, ERCO had already counted twelve (12) instances of “no call/no show” against him. Once ERCO finally informed Milkey on February 9, 2015 that, based on Bielefeldt’s own lay opinion, it determined Milkey could attend work in between his therapy sessions against the advice of his treatment providers, Bielefeldt demanded that Milkey return to work the following day. Milkey did so, and his work schedule ultimately forced him to discontinue his group therapy. Not only did ERCO fail to communicate with Milkey regarding whether it would accommodate his treatment-related absences, it then unilaterally determined that it would not provide Milkey an accommodation that would allow him to treat and retain his job. ERCO did so despite never having even considered whether a one (1) month leave of absence posed an undue hardship on the Company. (PFOF 44). Milkey has established sufficient evidence for a jury to find that any breakdown in the interactive process was ERCO’s fault; as such, summary judgment should be denied. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 38 of 45 39 ii. There is a Genuine Factual Dispute Regarding Whether ERCO Failed to Reasonably Accommodate Milkey. Once an employee notifies his employer of his disability, “an employer's liability is triggered for failure to provide accommodations.” Hendricks–Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998) (internal quotation marks omitted). At this point, the employer must engage with the employee in an ‘interactive process’ to determine the appropriate accommodation under the circumstances. The ‘reasonable accommodation’ element of the Act imposes a duty upon employers to engage in a flexible, interactive process with the disabled employee needing accommodation so that, together, they might identify the employee's precise limitations and discuss accommodations which might enable the employee to continue working. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998)(citing 29 C.F.R. § 1630.2(o)(3); 29 C.F.R. Pt. 1630, App. § 1630.9)(additional internal citations omitted). A “reasonable accommodation” under the ADA may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). A reasonable accommodation may also include a temporary leave of absence. H.R. REP. 101-485, 63, 1990 U.S.C.C.A.N. 303, 345(“accommodation may also include providing additional unpaid leave days, if such provision does not result in an undue hardship for the employer”); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 595 (7th Cir. 1998)(upholding a jury verdict for an employee who was denied an accommodation of two (2) to four (4) weeks of unpaid leave); Soodman v. Wildman, Harrold, Allen & Dixon, 1997 WL 106257, at *6 (N.D. Ill. Feb. 10, 1997); Schmidt v. Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994)(“a leave of absence to undergo treatment [for alcoholism] was an obvious accommodation”). Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 39 of 45 40 The ADA does not give employers unfettered discretion to decide what is a reasonable accommodation. Miller v. Illinois Dept. of Transp., 643 F.3d 190, 198 (7th Cir. 2011). Instead, the law requires employers “to rethink [their] preferred practices or established methods of operation,” including “modifications of jobs, processes, or tasks so as to allow an employee with a disability to work, even where established practices or methods seem to be the most efficient or serve otherwise legitimate purposes in the workplace.” Id. See, e.g., Vande Zande v. State of Wisconsin Dep't of Administration, 44 F.3d 538, 542 (7th Cir. 1995) (“It is plain enough what ‘accommodation’ means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work”). ERCO takes the position that it offered the reasonable accommodation of altering Milkey’s work schedule so that he could attend group therapy as scheduled. (Def. Br. at 24). However, it was not until February 9, 2015 that ERCO informed Milkey that it would not permit him to take continuous leave and that it was proposing an alternative accommodation. (PFOF 90 – 93). Milkey then immediately returned to work on February 10, 2015. (PFOF 92). In other words, Milkey accepted ERCO’s proposed accommodation and returned to work immediately after it was proposed. Yet the very day Milkey returned to work with these accommodations, ERCO suspended and eventually terminated Milkey despite his compliance with ERCO’s modified accommodation proposal. ERCO cannot claim credit for belatedly offering Milkey an accommodation only to immediately terminate him upon its acceptance. ERCO also contends that Milkey was not entitled to an accommodation of time off to treat for his alcoholism because attendance is an “essential function” of the job and therefore his absences – absences directly related to his treatment for alcoholism – were unreasonable for ERCO to have accommodated. (Def. Br. at 21). In support of this contention, ERCO cites Waggoner v. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 40 of 45 41 Olin Corp., 169 F.3d 481 (7th Cir. 1999) and Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894 (7th Cir. 2000). However, these cases are easily distinguished from the facts at issue here. In both Waggoner and Jovanovic, the employees sought accommodations to excuse their sporadic, unpredictable absences for an indefinite period of time rather than a discrete period of leave as Milkey did. In both cases, the Seventh Circuit explicitly rejected a per se rule that an employer never need accommodate medical absences and acknowledged that unpaid medical leave could be a reasonable accommodation. Waggoner, 169 F.3d at 485 (“We are not establishing a hard-and-fast rule that no absences from work need be tolerated. We have indicated our willingness to look to the reasonableness of an accommodation of a requested medical leave”); Jovanovic, 201 F.3d at 900. (“We need not go so far as to say that regular attendance is an essential function of every job in rendering our decision today, nor do we hold that an individual with erratic attendance can never be a qualified individual with a disability under the ADA”). Yet ERCO cites no facts in support of its apparent contention that Milkey’s requested leave of approximately one (1) month made him unqualified for the job or imposed an undue hardship on ERCO. Its bare assertion that “attendance was a basic requirement of the job” cannot support a conclusion that Milkey’s brief period of absence made him unqualified for the job or was an unreasonable accommodation. In fact, Bielefeldt testified that ERCO never concluded that Milkey’s request for a one (1) month leave of absence would be too burdensome for the company. Additionally, ERCO’s assertion that “[t]here is no reason Milkey could not work when he was not in therapy,” (Def. Br. at 21), has no support in the record. All of the medical evidence in the record supports a conclusion that Milkey’s disability required continuous leave from January 19, 2015 to February 23, 2015, and ERCO has offered no competent evidence to rebut the medical and professional evidence of Dr. Harter and Hintzman. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 41 of 45 42 C. A Reasonable Jury Could Find That ERCO Intentionally Discriminated Against Milkey on the Basis of His Disability. The ADA prohibits employers from “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee,” 42 U.S.C. § 12112(b)(1). A plaintiff can prove disability discrimination under the ADA by showing that he was treated differently than other workers on the basis of a protected characteristic. He may prove this by presenting direct evidence of discrimination, or he may prove it indirectly using the McDonnell Douglas burden-shifting method. See McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Under the indirect method, a plaintiff must establish a prima facie case of discrimination by showing he: 1) was a member of the protected class; 2) was performing in accordance with his employer’s legitimate expectations; 3) suffered an adverse employment action; and 4) that a similarly situated employee not in plaintiff’s protected class was treated better. Contreas v. Suncast Corp., 237 F.3d 756 (7th Cir. 2001). The burden then shifts to the Defendant to show a legitimate non-discriminatory reason for the adverse employment action, then back to the plaintiff to show that this reason is pretextual. McDonnell Douglas, 411 U.S. at 802-804. Milkey has presented enough evidence to establish a prima facie case. As established above, Milkey was a member of a protected class and, prior to his request for a leave of absence to treat his disability, was performing in accordance with ERCO’s legitimate expectations. It is undisputed that he suffered an adverse employment action. Milkey was also treated worse than other employees with similar attendance records. In the seven (7) months between July 2014 and Milkey’s FMLA leave began, he had only two (2) absences from work, both of which were excused. (PPFOF 11). In all of 2014, Milkey had four (4) sick days, i.e. forty-eight (48) hours. (PPFOF 9). He did not exceed his allotted vacation or banked Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 42 of 45 43 holiday time off. (PPFOF 8). Evidence suggests that similarly situated employees, such as Jason Bartlett in 2013 (204 hours of sick time) and Ben Ksionek in 2014 (72 hours of sick time), had worse attendance records. (PFOF 110, 111). Yet after Milkey requested a leave of absence for his serious health condition/disability in January 2015 – which ERCO initially approved – ERCO then determined that Milkey’s attendance had been, “marginal to unacceptable for the past three years.” (PPFOF 104). As described in Part B, supra, Milkey’s accommodation request was reasonable. A reasonable jury could infer that ERCO discriminated against Milkey on the basis of his disability by overly criticizing his attendance over the course of years as a result of his request to treat and accommodate his disability. A reasonable jury also could find that ERCO’s purported “legitimate non-discriminatory reason” for Milkey’s termination – excessive absenteeism – is merely pretext for disability discrimination. A pretextual reason is one that is “unworthy of credence,” “a dishonest explanation, a lie rather than an oddity or an error.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 642 (7th Cir. 2008) (internal citations omitted). Explanations that “are factually baseless, did not actually motivate the defendants, or were insufficient to motivate the adverse employment action” are unworthy of credence. O’Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002) (internal citations omitted). ERCO was clearly aware that Milkey did not attend work from January 19, 2015 to February 9, 2015 because ERCO led Milkey to believe he was on approved FMLA leave. (PFOF 91). ERCO never contacted Milkey between January 28, 2015 and February 8, 2015 to inquire why he had not attended work. (PFOF 84, 87, 91). ERCO also had a policy of considering an employee to have resigned when he had three (3) “no call/no show” absences in a row. (PFOF 7). It did not consider Milkey to have resigned despite twelve (12) supposed “no call/no show” absences in a row. (PFOF 46, 67, 85, 104). In fact, ERCO encouraged Milkey’s Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 43 of 45 44 belief that his absences were approved medical leave by violating its own policies and failing to contact Milkey at all from January 28, 2015 until February 9, 2015. Despite ERCO’s behavior, during this time alone, ERCO counted four (4) “no call/no show” absences against Milkey without informing him. In light of the above sequence of events, a reasonable jury could infer malicious intent from ERCO’s “bait and switch” and conclude that ERCO’s purported legitimate non- discriminatory reason was pretext for disability discrimination. The true reason for ERCO’s disparate treatment towards Milkey was his disability of alcoholism and Milkey’s related request for an accommodation – a leave of absence – to treat his condition. CONCLUSION The evidence presented shows that Milkey was on protected FMLA leave continuously from January 19, 2015 to February 23, 2015 for the treatment of his disability of alcoholism. Despite receiving verification that Milkey needed to be off work continuously during this time period for treatment, ERCO repeatedly contacted Milkey’s treatment provider to pressure her to return Milkey to work, then terminated Milkey for his treatment-related absences. ERCO now attempts to cover up its illegal actions with a series of post-hoc, unsupported justifications, fishing for a legitimate and non-discriminatory reason for Milkey’s termination. Based on the cumulative evidence set forth above, a reasonable jury could find for Milkey in his claims of FMLA interference, FMLA retaliation, and disability discrimination. Therefore, the Court should deny ERCO’s motion for summary judgment and allow this case to proceed to trial. Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 44 of 45 45 Submitted this 21st day of February, 2017. HAWKS QUINDEL, S.C. Attorneys for the Plaintiff, Michael Milkey By: __s/ Danielle M. Schroder Nicholas E. Fairweather, State Bar No. 1036681 Email: nfairweather@hq-law.com Danielle M. Schroder, State Bar No. 1079870 Email: dschroder@hq-law.com Amanda M. Kuklinski, State Bar No. 1090506 Email: akuklinski@hq-law.com 222 West Washington Avenue, Suite 450 Post Office Box 2155 Madison, Wisconsin 53701-2155 Telephone: 608/257-0040 Facsimile: 608/256-0236 Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 45 of 45
