Milkey, Michael v. Erco Worldwide (Usa), Inc.

Brief in Support of 16 Motion for Summary Judgment

W.D. Wis.January 20, 2017

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN MICHAEL MILKEY Plaintiff, Case No. 16-cv-102 v. ERCO WORLDWIDE (USA), INC. Defendant. DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Dated this 20 th day of January, 2017. David J. B Froiland, Esq. State Bar No. 1031370 Mark A. Johnson, Esq. State Bar No. 1018110 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Pabst Boiler House 1243 North 10 th Street, Suite 210 Milwaukee, Wisconsin 53205 Email: david.froiland@ogletree.com Tel: 414-239-6412 (direct) Email: mark.johnson@ogletree.com Tel: 414-239-6408 (direct) Fax: 414-755-8289 ATTORNEYS FOR THE DEFENDANT, ERCO WORLDWIDE (USA), INC. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 1 of 29 i TABLE OF CONTENTS INTRODUCTION AND SHORT SUMMARY OF FACTS ..............................................1 SUMMARY JUDGMENT STANDARD ...........................................................................4 ARGUMENT .......................................................................................................................5 I. PLAINTIFF’S FMLA CLAIM FAILS ..........................................................................5 A. Plaintiff’s FMLA Interference Claim Fails ...........................................................5 1. The Company did not interfere with Plaintiff’s FMLA rights with respect to his absences .....................................................................................................6 a. As a legal matter, the FMLA only covers “treatment” for substance abuse, and not other periods of absence arising from substance abuse ...............6 b. As a factual matter, the FMLA Certifications did not purport to restrict Milkey from working other than during his therapy sessions...................9 c. Even though ERCO proceeded as though Milkey had FMLA coverage during his MWF therapy sessions, Milkey was not actually entitled to any FMLA leave because he never submitted a complete and sufficient Certification from Ms. Hintzman ............................................................10 2. ERCO had an honest suspicion that Milkey was abusing his FMLA leave. 12 3. The Company did not interfere with Plaintiff’s FMLA rights by contacting his social worker ...........................................................................................13 B. Plaintiff’s FMLA Retaliation Claim Fails ..........................................................16 II. PLAINTIFF’S ADA CLAIM FAILS ..........................................................................19 A. Milkey Was Not A Qualified Individual With A Disability ...............................20 B. Plaintiff’s ADA Discrimination Claim Fails ......................................................21 C. Plaintiff’s Failure to Accommodate Claim Fails ................................................23 1. ERCO reasonably accommodated Plaintiff’s alleged disability ...................23 2. The alleged disability did not cause the termination ....................................25 Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 2 of 29 ii 3. If there was a failure to accommodate, ERCO was not responsible for that because Milkey caused a breakdown of the interactive process ...................25 CONCLUSION .................................................................................................................26 Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 3 of 29 1 INTRODUCTION AND SHORT SUMMARY OF FACTS Plaintiff Michael Milkey (“Plaintiff” or “Milkey”) alleges ERCO Worldwide (USA) Inc. (“ERCO” or “the Company”) violated the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when it terminated his employment for excessive absenteeism. These claims are without merit. For the reasons stated herein, Defendant asks this Court to grant its Motion for Summary Judgment against Plaintiff. Milkey had a long history of attendance problems. (DPFOF 14-17, 137.) After a few months of improved attendance in the second half of 2014, Plaintiff’s absenteeism began to become a problem again at the start of January, 2015, whereupon he entered inpatient detox to treat his alcoholism from January 9-11, 2015. (DPFOF 19, 21.) The Company excused these absences pursuant to the FMLA. (DPFOF 46, 136.) The doctor who oversaw Plaintiff’s hospital visit certified that Milkey could return to work January 15, 2015 without restrictions, except for “possibly” attending intermittent outpatient therapy sessions. (DPFOF 40 (“Will it be necessary for employee to work only intermittently…? “possibly for [about] 3 months”), DPFOF42 (“able to work”), DPFOF 43 (“He is able to return to work as of 1/1/15 further restrictions on the FMLA paperwork I completed today”.)) However, for the next 26 days, Milkey did not come back to work. For the entire month of January and the first nine days of February, Milkey continued to be absent, claiming he was restricted from working altogether, despite repeated faxes and FMLA forms from his social worker Julie Hintzman (“Ms. Hintzman” or “social worker”) stating otherwise. (DPFOF 57, 58, 62, 89, 99, 102 137.) The key fact driving this case is that Milkey desperately wished his restrictions would keep him off work altogether even though his actual restrictions only required him to attend therapy sessions on Mondays, Wednesdays, and Fridays (“MWF”) from 9:00 a.m. to noon. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 4 of 29 2 (DPFOF 37, 58, 99, 102.) On January 27, 2015, Milkey’s social worker told ERCO’s Human Resource Manager, Steve Bielefeldt, that there was no reason Milkey could not work when not at therapy. (DPFOF 62.) After that conversation, Bielefeldt told Milkey he believed Milkey could work (DPFOF 66), and Milkey said he would talk with his social worker about that. (DPFOF 68.) On January 30, 2015, Milkey’s social worker faxed an incomplete FMLA form (second page of a two-page form) stating, “Michael is unable to work.” (DPFOF 75, 76.) The Company promptly sent a letter on February 2, 2015 asking for a clarification of this sudden change. (DPFOF 95, 96, 97.) On February 4, the social worker faxed one page of an FMLA Certification form and on February 6, 2015, the social worker faxed the second page of a Certification. (DPFOF 98, 101.) These documents clarified Plaintiff’s restrictions. They both said his restrictions were limited to MWF between 9:00 and noon. (DPFOF 99, 102.) At no time did the Company ever receive a complete and sufficient Certification (two pages at the same time and providing sufficient information) from the social worker, let alone a complete and sufficient Certification from her stating Milkey was restricted beyond the MWF morning therapy sessions. (DPFOF 153.) The Company called Milkey on Friday, February 6, 2015 and left a message stating he needed to come to work for his pre-scheduled work shifts over the weekend. (DPFOF 104.) Milkey admits that his phone received this message, although he claims that he did not to listen to it over the weekend. (DPFOF 106.) Milkey did not come to work for his pre-scheduled shift on Saturday, February 7. He was a no-call / no show. (DPFOF 137.) The next day, Sunday, February 8, 2015, Milkey was a no-call / no-show again. (DPFOF 137.) On February 9, Milkey said he could not come to work that evening because he was not in the area and he had “an appointment.” (DPFOF 110, 112.) However, the appointment was an Alcohol Anonymous Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 5 of 29 3 meeting from 12:30 to 1:30 p.m., which was not part of his prescribed medical regime, not included in his restrictions, and not something his social worker even knew about. (DPFOF 112.) The Company spoke with Milkey that afternoon, ahead of his night shift, but Milkey said that because of his appointment during the day, he had not sufficiently slept ahead of his evening shift, so he declared that he could not work. (DPFOF 112.) This was not the first example of Plaintiff’s misusing his leave. Milkey was a no- call/no-show on January 19, 20, 21, 23, 24, and 25, for 2015. (DPFOF 137.) He continued to be absent on January 28 and 29, 2015. (DPFOF 137.).  January 19, 21, 23, and 28 were days when Milkey had therapy scheduled from 9:00 to noon. Milkey’s restrictions permitted him to come to work outside of the three-hour windows.  The days January 20, 24, 25, and 29 were a Tuesday, Saturday, Sunday, and Thursday, respectively. Plaintiff’s restrictions permitted him to come to work on these non-therapy days. (DPFOF 37, 58, 62, 99, 102.) Plaintiff’s FMLA interference claim is without merit. The applicable FMLA regulation, 29 C.F.R. § 825.119(a), states that in the case of addicts, the FMLA only covers periods of treatment, and not periods between treatment sessions. The only treatment Milkey received was intensive outpatient therapy on MWF, 9:00 a.m. to noon. The Company provided FMLA leave to Milkey to accommodate his need to attend these morning therapy sessions. (DPFOF 62, 63, 138, 155.) However, as a matter of law, the FMLA does not cover periods of time in between therapy sessions. Likewise, as a matter of fact, no completed FMLA Certification purports to restrict Milkey beyond these therapy sessions in any event. Additionally, ERCO believed that Milkey was misusing the leave it had granted him to attend therapy and could lawfully terminate his employment for that reason alone. (DPFOF 144.) Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 6 of 29 4 Milkey’s FMLA retaliation claim is equally deficient. The Company has a history of granting FMLA leave to employees for treatment for substance abuse, for example, when they attend inpatient treatment for a few days (in the case of Milkey from January 9 through January 11, 2016) or longer (two other employees attended residential treatment for weeks and also took intermittent treatment leave at other times). (DPFOF 162, 163.) Milkey’s ADA claim fails for many of the same reasons. ERCO did not terminate Milkey’s employment because of his alcoholism. It terminated him for excessive absenteeism and for misusing his leave. (DPFOF 139, 144, 150.) Moreover, ERCO provided Milkey with the reasonable accommodation of leave during his inpatient stay and then intermittent leave to attend therapy. (DPFOF 46, 138.) Milkey’s desire to be off work completely during this time was not a request for a reasonable accommodation, especially when Plaintiff’s doctor and social worker had stated he could work, other than the morning therapy sessions on MWF. When the employee’s restrictions require no more than three hours of leave three days a week, providing several weeks of continuous leave is not a reasonable accommodation. SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56(c), summary judgment is proper when 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 a judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Evidence relied upon in defending against a motion for summary judgment must be competent evidence of a type otherwise admissible at trial. Stinnett v. Iron Works Gym, 301 F.3d 610, 613 (7th Cir. 2002). The non-moving party “may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 7 of 29 5 facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); Beard v. Whitley Cnty. REMC, 840 F.2d 405, 410 (7th Cir. 1988). Neither “the mere existence of some alleged factual dispute between the parties, nor the existence of some metaphysical doubt as to the material facts, is sufficient to defeat a motion for summary judgment.” Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir. 2003). Instead, “there must be evidence on which the jury could reasonably find for the plaintiff.” Celotex, 577 U.S. at 322. If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, judgment is not only appropriate, it is required. Id. ARGUMENT I. PLAINTIFF’S FMLA CLAIM FAILS. Milkey claims that ERCO violated the FMLA by: (a) interfering with the exercise of rights under the FMLA and, (b) retaliating against him for engaging in protected activity under the FMLA. These claims are without merit. A. Plaintiff’s FMLA Interference Claim Fails. ERCO excused Milkey’s absences for the period of January 9, 2015 through January 14, 2015 as requested by Dr. Harter’s Certification of Healthcare provider form and return to work slip. (DPFOF 136.) Therefore, those absences are not an issue. Milkey argues that he was entitled to be absent from work completely, rather than just intermittently, to attend therapy three times a week, starting on January 15, 2015. Milkey argues that during this time, ERCO counted absences that were protected by the FMLA against him when it decided his absenteeism was excessive. He also claims that the Company interfered with his FMLA rights (1) when it disciplined him for absences he claimed were FMLA protected, and (2) when it contacted his social worker. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 8 of 29 6 1. The Company did not interfere with Plaintiff’s FMLA rights with respect to his absences. An employee cannot sustain a claim for FMLA interference if the employee “had no right to FMLA leave” in the first place. Darst v. Interstate Brands Corp., 512 F.3d 903, 910 (7th Cir. 2008). To sustain a claim of FMLA interference, Milkey must demonstrate that he was entitled to FMLA leave. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011). To prevail on a claim of FMLA interference, an employee must prove that: (i) he was eligible for FMLA protection; (ii) his employer was covered by the FMLA; (iii) he was entitled to leave under the FMLA; (iv) he provided sufficient notice of intent to take FMLA leave; and (v) his employer denied him FMLA benefits he was entitled to. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). Milkey cannot establish a claim for FMLA interference because: (1) he cannot establish he was entitled to the benefit he claims, Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997), and (2) ERCO had an honest suspicion that Milkey was misusing his FMLA leave. Scuggs v. Carrier Corp., 688 F.3d 821, 826 (7th Cir. 2012). a. As a legal matter, the FMLA only covers “treatment” for substance abuse, and not other periods of absence arising from substance abuse. The FMLA treats substance abuse as a special case. Substance abuse itself does not qualify as a “serious health condition” entitling an employee to FMLA leave. Instead, “FMLA leave may be taken only for treatment for substance abuse.” 29 C.F.R. § 825.119(a) (emphasis added). The FMLA regulations state as follows: Substance abuse may be a serious health condition if the conditions of §§ 825.113 through 825.115 are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Id. (emphasis added); see Darst, 512 F.3d at 908 (finding that “absence because of the Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 9 of 29 7 employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave”); see also Brown v. Automotive Components Holdings, LLC, No. 1:06-cv-1802, 2008 WL 747562, at *2 (S.D. Ind. Mar. 18, 2008) (“[T]ime missed due to alcoholism – as opposed to treatment for alcoholism – is not a permitted reason for FMLA leave . . . .”); Basso v. Potter, 596 F.Supp.2d 324, 326 (D. Conn. 2009) (holding that “[i]t must be the treatment that renders the employee unable to work”) (emphasis added). Therefore, if Milkey was entitled to any FMLA leave, it was only leave for treatment during the nine hours per week of MWF 9:00 a.m. to noon. Thus, an employer can even take adverse action against the employee for any absences arising from the employee’s substance abuse which are not for treatment. The regulation provides as follows: Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave. 29 C.F.R. 825.119(b). The absences ERCO counted against Milkey starting January 15, 2015 were not protected by the FMLA because they were not for “treatment.” “Treatment” is a defined term for FMLA purposes. Courts have determined that treatment for substance abuse includes only: (1) inpatient care in a hospital, hospice, or residential medical facility; or (2) outpatient treatment that renders the employee unable to work and that requires a visit to a health care provider. Darst, 512 F.3d at 908. The definition of “treatment” is, thus, limited and plainly does not include “any activities that can be initiated without a visit to a health care provider.” Id. at 911; see also Darst v. Interstate Brands Corp., Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 10 of 29 8 2003 U.S. Dist. LEXIS 22200, at *13 (S.D. Ind. Sept. 30, 2003) (noting that “[t]here is a meaningful difference between what ‘treatment’ means to the Plaintiff’s doctors and what ‘treatment’ means for purposes of FMLA”). Therefore, when an employee seeks FMLA leave for treatment, the employee must present objective evidence that he was in inpatient treatment at a facility or outpatient treatment that rendered the employee unable to work. Darst 512 F.3d at 911-12. Courts review this using an objective test based on the medical evidence presented, not based on the subjective belief of the employee or doctor. See id. at 911 (finding that an employee was not entitled to FMLA leave for the days the employee was not actually receiving treatment for substance abuse, even though the employee and doctor believed the employee was entitled to such leave because they believed “treatment” for substance abuse began when the employee took the first step toward seeking professional help); Ruggio v. Tyson Foods, Inc., No. 3:14-cv-1916 JD, 2016 WL 1660484, at *8 (N.D. Ind. April 26, 2016) (finding that an employee was not entitled to FMLA leave despite her testimony that she was incapacitated with a serious health condition for three consecutive days because “there [were] no medical documents showing she sought any treatment during that period” and “no medical documents to indicate she was incapacitated”); Loomis v. Honda of Am. Mfg. Inc., No. C2-01-606, 2003 WL 133264, at *6 (S.D. Ohio Jan. 6, 2003) (“Plaintiff's argument that she is required to show only a subjective ‘good faith’ belief that she was entitled to FMLA leave, independent of her actual entitlement to coverage, is not supported by legal precedent under the FMLA . . . .”); see also Ridings, 537 F.3d at 770-71 (employer did not interfere with an employee’s FMLA rights by terminating her due to non-FMLA protected absences). Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 11 of 29 9 Even though it may not have been required to under the FMLA 1 , ERCO did not count time that Milkey was scheduled to be in therapy on Monday, Wednesday and Friday mornings against him when it decided his absenteeism was excessive because ERCO was trying to work with Milkey. (DPFOF 138.) Even excluding these days and times, however, Milkey was absent numerous full days and partial days during the time beginning January 15, 2015 - 1/19, 1/20, 1/21, 1/23, 1/24, 1/25, 1/28, 1/29, 2/7, 2/8, 2/9. (DPFOF 137.) Milkey could have attended part of his shift on days he attended therapy. ERCO lawfully counted that time against Milkey’s attendance record. The Monday, Wednesday, Friday group therapy was the only treatment that Dr. Harter suggested, the only treatment provided by Ms. Hintzman, and the only treatment that Milkey (sporadically) attended. (DPFOF 145-146.) Therefore, as a matter of law, ERCO could count the time he was absent but was not in therapy against him because he was not entitled to FMLA leave during those absences. b. As a factual matter, the FMLA Certifications did not purport to restrict Milkey from working other than during his therapy sessions. Even without 29 C.F.R. § 825.119(a) which limits the FMLA’s protections to periods of “treatment” as a matter of law, Plaintiff’s claim would still fail as a matter of fact. This argument closely tracks the foregoing legal argument, but on a factual basis instead. As a matter of fact, Plaintiff’s medical Certification only restricted him from working during his MWF morning therapy sessions. Because the Company never received a complete and sufficient FMLA Certification that restricted Plaintiff’s ability to work, outside of the MWF therapy sessions, these are the only windows of time the FMLA could have protected. Because the Company only disciplined Milkey for the absences which were outside of his MWF morning 1 None of Milkey’s FMLA Certifications were complete, but rather, consisted of single-page faxes which were only partially completed. Nevertheless, the Company treated the Certifications restricting Milkey from coming to work during his therapy sessions (MWF from 9:00 a.m. to noon) as though they were sufficiently complete. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 12 of 29 10 therapy sessions, and these periods of time were not restricted by Plaintiff’s doctor or social worker, his FMLA interference claim fails. c. Even though ERCO proceeded as though Milkey had FMLA coverage during his MWF therapy sessions, Milkey was not actually entitled to any FMLA leave because he never submitted a complete and sufficient Certification from Ms. Hintzman. Dr. Harter’s FMLA Certification and return to work slip said that Milkey could return to work January 15, 2015. (DPFOF 42, 43, 44.) After he received the “Certification of Healthcare Provider – FML” form from Dr. Harter on January 15, 2015, Bielefeldt never received a complete and sufficient Certification of Healthcare document. Instead, he received either “page one” or “page two” of a two page Certification document every few days. (DPFOF 55, 75, 81, 98, 101, 153.) And even those single pages were incomplete, with important questions left blank. (DPFOF 56, 57, 76, 83, 84, 85, 100.) Accordingly, Milkey was not entitled to any FMLA leave after January 14, 2015 because the medical Certifications that he submitted were not complete or sufficient, as required by the FMLA regulations. It “is the employee’s responsibility to provide the employer with complete and sufficient certification . . . .” 29 C.F.R. § 825.306(e). The FMLA regulations are clear and absolute: “The employee must provide a complete and sufficient certification to the employer if required by the employer . . . .” 29 C.F.R. § 825.305(c). “[F]ailure to do so may result in the denial of FMLA leave.” 29 C.F.R. § 825.306(e); see Muhammad v. Indiana Bell Telephone Co., Inc., 182 Fed. Appx. 551, 553-54 (7th Cir. 2006) (finding that an employee’s absences were not covered by FMLA leave when she submitted an incomplete certification). Thus, Milkey was required to provide a single Certification that was both complete and sufficient. ERCO was not “obligated to cobble together one sufficient form from bits and pieces of . . . incomplete ones.” Hobbs v. Sloan Valve Co., No. 1:14-cv-03482, 2015 WL 4231743, at Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 13 of 29 11 *9 (N.D. Ill. July 10, 2015) (rejecting an employee’s FMLA interference claim because the employee was not entitled to FMLA leave where a healthcare provider had faxed the employer five certifications, but no single certification was complete and sufficient); 29 C.F.R. § 825.306(c) (“The employee must provide a complete and sufficient certification to the employer . . . .”). The regulations further describe what constitutes an incomplete or insufficient Certification. They provide as follows: A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive. 29 C.F.R. § 825.305(c). Where an employee’s medical Certification is incomplete or insufficient, the employee must cure any such deficiency within seven calendar days. 29 C.F.R. § 825.305(c). An employee is not entitled to FMLA leave when he fails to do so. Muhammad, 182 Fed. Appx. at 554 (holding that an employee was not entitled to FMLA leave because the medical certification was insufficient where it did not contain a doctor’s assessment of how long she would need intermittent leave and how frequently she would need it). A complete Certification of Healthcare Provider form is two pages. Ms. Hintzman faxed one page every few days. (DPFOF 55, 75, 81, 98, 101, 153.) Not one of those pages provided a response to Item 3 on page one of the form, which asked for the “medical facts that support your certification and a brief statement of how the medical facts” met the criteria of a serious health condition. They also left important other questions unanswered. (DPFOF 56, 57, 76, 83, 84, 85, 100.) And they were inconsistent, initially saying Milkey only needed to be off “3x per week 3 hrs per day” then reverting to saying he was “unable to work” and then reverting to saying he Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 14 of 29 12 only needed to be off Monday, Wednesday and Friday from 9:00 to 12:00 to attend therapy. (DPFOF 58, 76, 99, 102.) Because the forms Ms. Hintzman faxed were incomplete and insufficient, Milkey was not entitled to the benefit he claims under the FMLA. 2. ERCO had an honest suspicion that Milkey was abusing his FMLA leave. Milkey’s FMLA interference claim also fails because ERCO had an honest suspicion that Milkey was misusing his FMLA leave. An employee cannot establish a claim for FMLA interference when the employer terminates the employee because it has an “honest suspicion that the employee was not using his medical leave for its intended purpose . . . .” Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th Cir. 2006). That is, when an employer honestly believes that an employee is not using his leave for its intended purpose, the employer is free to terminate the employee without violating the FMLA. Scruggs v. Carrier Corp., 688 F.3d 821, 826 (7 th Cir. 2012); see Vail v. Raybestos Prods. Co., 533 F.3d 904, 909 (7th Cir. 2008) (“Accordingly, an employer can defeat an interference claim by showing, among other things, that the employee did not take leave for the intended purpose . . . . We have interpreted this to mean that an employer has not violated the FMLA if it refused to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave.”); Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 681 (7th Cir. 1997) (holding that an employee’s FMLA claim was foreclosed where the employer had an “honest suspicion” that the employee was misusing her leave); Crouch, 447 F.3d at 986 (“[A]n employer is under no obligation to reinstate an employee who misuses disability leave.”). Bielefeldt and Plant Manager Bertin made the decision to recommend termination and their recommendation was approved. (DPFOF 132.) Bertin and Bielefeldt honestly believed that Milkey was misusing the FMLA leave that he received to attend therapy. (DPFOF 140.) Dr. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 15 of 29 13 Harter stated unequivocally that Milkey could return to work January 15, 2015. (DPFOF 42.) Bielefeldt and Bertin believed that Milkey had misled ERCO about what his social worker had told him about his need to miss work. (DPFOF 140-144.) When Bielefeldt talked to Ms. Hintzman, she told him that Milkey could return to work as long as he could attend his therapy appointments. (DPFOF 141.) But when Bielefeldt talked with Milkey, Milkey said that Ms. Hintzman had told him he did not need to work at all. (DPFOF 141.) Bielefeldt and Bertin also learned that Milkey did not even attend therapy on February 11, 2015; Milkey did not tell them about that. (DPFOF 143.) This happened after ERCO had worked out a special reduced schedule to accommodate Milkey so he could leave work early to go home and sleep before therapy started in the morning. (DPFOF 117, 118, 143.) Milkey was abusing his leave. ERCO did not interfere with Milkey’s rights under the FMLA by terminating him because it honestly believed (correctly) that he was misusing the leave he had been granted. Furthermore, Milkey actually skipped individual therapy once and group therapy three times out of ten possible group therapy meetings he could have attended before he dropped out. (DPFOF 146.) One of the times he skipped therapy, January 26, was the morning after he had not worked his scheduled shift the previous evening. (DPFOF 137.) Even though Milkey later testified that it would have been too stressful for him to attend therapy and work the reduced schedule that ERCO had offered him, in this instance, he did not do either. He did not work or attend therapy. Because the Company reasonably believed that Milkey misused his leave, his FMLA interference claim is without merit. 3. The Company did not interfere with Plaintiff’s FMLA rights by contacting his social worker. Milkey also claims that ERCO violated the FMLA by communicating with Ms. Hintzman. (See Complaint ¶47.) The relevant FMLA regulation provides as follows: “If an Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 16 of 29 14 employee submits compete and sufficient certification signed by the healthcare provider, the employer may not request additional information form the health care provider.” 29 C.F.R. § 825.307. That claim is meritless for three reasons: First, the claim fails because Milkey was not entitled to FMLA leave in the first place. See Smith v. Hope School, 560 F.3d 694, 698-701 (7 th Cir. 2009) (holding that an employer did not interfere with an employee’s FMLA rights despite improper communications with the employee’s health care provider where the employee was not entitled to FMLA leave in the first place). Second, the same regulation that limits employer contacts to a health care provider also includes a significant exception, which reads as follows: “However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification.” 29 C.F.R. § 825.307; see Smith, 560 F.3d at 698 n.4 (noting that an employer is allowed to contact an employee's health care provider for the limited purpose of authenticating or clarifying the information contained in the certification); Hobbs, 2015 WL 4231743, at *9 (rejecting an FMLA interference claim where an employer contacted the employee’s health care provider in an attempt to clarify the FMLA certification where the healthcare provider had faxed the employer five certifications, but no single certification was complete and sufficient). Given the high volume of inconsistent and half-completed paperwork sent to the Company, Bielefeldt had good reasons to talk with Ms. Hintzman, namely, to clarify the contours of the restrictions. For example, at no time did Ms. Hintzman ever provide both pages of the full two-page Certification of Healthcare Provider together (DPFOF 153.) She admitted in her deposition that her communications were conflicting. (DPFOF 158.) For example, initially, she had submitted a Short Term Disability form and one page of a Certification form that Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 17 of 29 15 contradicted each other. The first page of the FMLA form said that Milkey only needed to be absent three times per week, three hours per day. (DPFOF 58.) But the Short Term Disability form said Milkey would return to work on February 23, 2015, which contradicted the page of the FMLA Certification it came with. (DPFOF 55.) The Short Term Disability form also contradicted Dr. Harter’s Certification of Healthcare Provider form (providing that Milkey was “able to work” and would only “possibly” need intermittent leave), which was the only two-page Certification form that ERCO ever received concerning Milkey, and Dr. Harter’s return to work slip, both of which said he could return to work January 15, 2015. (DPFOF 38, 40, 42, 43.) Bielefeldt could have simply denied leave based on the incomplete and insufficient paperwork. After all, it is the employee’s obligation to provide complete and sufficient documentation. Instead, Bielefeldt tried to work with Milkey, tried to accommodate his need for therapy, and determine if the Short Term Disability form was correct. He did not interfere with Milkey’s FMLA rights by asking these questions and seeking these answers. Finally, Ms. Hintzman was not actually a “health care provider” under the FMLA. Under the FMLA, “health care provider” is a defined and limited term – one that plainly does not include a social worker who, like Ms. Hintzman, is not a licensed clinical social worker. (DPFOF 35.) Rather, to the extent it includes social workers, it only includes “clinical social workers who are authorized to practice under State law and who are performing within the scope of their practice under State law.” 29 C.F.R. § 825.125(b)(2). Ms. Hintzman was not licensed as a clinical social worker under Wisconsin law. (DPFOF 35; Wisconsin Administrative Code Chapter MPSW 6 (authorized practice for different types of social workers)). Instead, Ms. Hintzman was licensed as an advance practice social worker and a substance abuse counselor. (DPFOF 35.) Because Ms. Hintzman does not qualify as a health care worker under the law, Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 18 of 29 16 there cannot be an interference claim based upon the Company’s contact with Hintzman, which only prohibits contact with “health care providers.” 2 B. Plaintiff’s FMLA Retaliation Claim Fails. To establish a claim for FMLA retaliation, an employee must prove that “the employer’s actions were motivated by an impermissible retaliatory or discriminatory animus.” Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7 th Cir. 2000) (quoting King v. Preferred Technical Group, 166 F.3d 887, 891 (7 th Cir. 1999)). To establish FMLA retaliation, the employee must show: (i) he engaged in a statutorily protected activity; (ii) he suffered an adverse employment action; and (iii) there was a causal connection between the two. See Ames v. Home Depot USA, Inc., 629 F.3d 665, 670 (7th Cir. 2011) (granting defendant summary judgment because plaintiff could not establish a causal connection). Milkey’s claim for FMLA retaliation fails because Milkey was terminated for excessive absenteeism due to absences that were not protected FMLA leave and because ERCO honestly believed he was misusing his FMLA leave. He thus cannot establish any causal connection between his request for FMLA leave and his termination. Indeed, the causal-connection element may only be met through either a direct admission or by circumstantial evidence. Ridings, 537 F.3d at 771 (internal citations omitted). Circumstantial evidence, however, “must point directly to the conclusion that an employer was illegally motivated, without reliance on speculation.” Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792, 801 (7th Cir. 2014) (granting employer judgment on FMLA retaliation claim) (quoting Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 2 Arguably, because Hintzman does not qualify as a “health care provider” under the FMLA, the Company was not required to accept any certification from Hintzman, because the FMLA only contemplates certifications completed by “health care providers.” See White v. Ag Supply Company of Wenatchee, No. 2:15-CV-0089-TOR, 2016 WL 737925, at *4 (E.D. Wash. Feb. 23, 2016) (finding that an employee was not entitled to take FMLA leave because her request was based on the assessment of a non-clinical social worker, which “is not a health care provider as defined under the FMLA”); see also Tsun v. WDI Intern. Inc., 585 Fed. Appx. 489-90 (9th Cir. 2014) (finding that an employee was not entitled to FMLA leave where the employee “failed to raise a material issue of fact that she was treated by a health care provider as defined in the FMLA”). Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 19 of 29 17 676 (7th Cir. 2012)). The mere fact that an employee’s FMLA leave was approved shortly before his termination cannot defeat summary judgment. Mobley v. Allstate Insurance Co., 531 F.3d 539, 549 (7th Cir. 2008) (finding that temporal proximity alone is insufficient to establish a causal connection for a claim of retaliation); Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 759 (7th Cir. 2006) (plaintiff who presented no evidence of retaliatory motive other than the timing of termination had not established retaliation). Indeed, an employee’s speculation based on suspicious timing “does not support a reasonable inference of retaliation.” Ruggio, 2016 WL 1660484, at *12 (quoting Sauzek v. Exxon Cola USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000)). Rather, additional evidence, such as “ambiguous statements from which retaliatory intent can be inferred, evidence of similar employees being treated differently, or evidence that the employer offered a pretextual reason for the termination,” in addition to temporal proximity, is generally required. Lagenbach, 761 F.3d at 800. Moreover, a plaintiff cannot establish a causal connection when the employer had a legitimate, non-discriminatory reason for the adverse action. Ruggio, 2016 WL 1660484, at *12 (holding that an employer did not retaliate against an employee in violation of the FMLA despite being terminated shortly after her FMLA leave because she was terminated for violating the employer’s attendance policy due to a number of non-FMLA protected absences). An employer’s reason for the adverse action is legitimate as long as it honestly believes its reasons for taking the adverse action. Id. (citing Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002). ERCO had two legitimate, non-retaliatory reasons for Milkey’s termination. First, “termination for failure to abide by an employer’s attendance policy is a legitimate reason for Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 20 of 29 18 termination.” Id.; Allen v. Fort Wayne Foundry Corp., No. 1:04-CV-60, 2005 WL 2347266, at *8 (N.D. Ind. Sept. 26, 2005) (finding violation of attendance policy a legitimate, non- discriminatory reason for termination); (see DPFOF 139). Second, terminating an employee for an honest belief that the employee was misusing FMLA leave is also a legitimate, non-retaliatory reason for termination. Scruggs, 688 F.3d at 826; (see DPFOF 144). Therefore, Milkey cannot establish a retaliation claim under the FMLA. In fact, ERCO has a strong record of providing employees with FMLA leave for treatment for alcoholism. Jason Bartlett used continuous FMLA leave from 7/1/13 to 7/21/13 for an inpatient program. (DPFOF 162.) He also utilized intermittent FMLA for counseling and outpatient treatment from 6/19/13 to 7/1/13. (DPFOF 162.) Ben Ksionek used continuous FMLA from 9/15/15 to 9/30/15 for a residential treatment program. (DPFOF 163.) Ksionek also used intermittent FMLA for alcohol dependency counseling from 10/7/15 to 1/22/16. (DPFOF 163.) If ERCO were actually motivated to retaliate against employees for taking FMLA-covered leave, query why it would not have terminated Bartlett and Ksionek? The fact that ERCO did not retaliate against other employees who similarly exercised their FMLA rights destroys any inference of FMLA retaliation against Milkey. Furthermore, Milkey told Ms. Hintzman that Bielefeldt was very supportive of him after Bielefeldt learned he needed to attend therapy for substance abuse. (DPFOF 50, 51.) When asked about whether he told Ms. Hintzman this, Milkey testified, “Yes, I must have. Like I said, Steve was very good in the beginning, very good.” (DPFOF 51.) Third, Milkey himself testified that he thought he was terminated for a reason that had nothing to do with the FMLA. In his deposition, Milkey was asked why he believed he was terminated. Milkey responded: “I believe they terminated me because I was, umm, not one of Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 21 of 29 19 their operators that they wanted in certain positions. I guess that's the biggest reason. I was a roadblock for I know Mark's plans on crews and stuff like that.” (DPFOF 151.) As Milkey explained it, his supervisors wanted to get rid of him for work-related reasons: Q: Is there anyone at ERCO that you think really has ill will or spite towards you? A: My opinion is that I believe Mark Schneider-- I was in his way of other people's move-ups, promotions because of my seniority and knowledge and stuff like that. Q: You think he wanted to move other people up higher, but you were in the way because you had more seniority? A And more knowledge and more experience, correct. (DPFOF 152.) In his heart of hearts, even Milkey did not believe that his FMLA-covered absences or his alcoholism motivated the Company’s decision to terminate his employment. One can only construe Milkey’s testimony as an admission that ERCO did not retaliate against Milkey for exercising his FMLA rights. II. PLAINTIFF’S ADA CLAIM FAILS. Milkey claims that ERCO violated the ADA by terminating him because of his disability and by failing to accommodate his disability. To establish a prima facie case of discrimination under the ADA, Milkey must show that: (1) he was disabled under the ADA; (2) he was qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) ERCO took an adverse job action against him because of his disability. Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 683 (7th Cir. 2014). To establish a failure to accommodate claim, Milkey must also demonstrate that he requested an accommodation and that ERCO failed to reasonably accommodate the disability. Id. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 22 of 29 20 A. Milkey Was Not A Qualified Individual With A Disability. Because the ADA only covers qualified individuals with disabilities, the burden rests on the plaintiff to prove that he was disabled within the meaning of the statute. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1059 (7th Cir. 2000). Under the ADA, an individual is disabled if he: (1) has “a physical or mental impairment that substantially limits one or more . . . major life activities;” (2) has “a record of such an impairment;” or (3) is “regarded as having such an impairment.” 42 U.S.C. § 12102(2). An employee’s subjective belief that he is disabled is irrelevant – rather, the employee must present evidence that he suffers from a physical or mental impairment and that the impairment substantially limits a major life activity. DePaoli v. Abbott Laboratories, 140 F.3d 668, 672 (7th Cir. 1998). Although alcoholism can, in some circumstances, constitute a disability under the ADA, it is not enough for a plaintiff to simply assert that he suffered from alcoholism. Indeed, the Seventh Circuit has recognized that no condition “is a disability as a matter of law.” Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 631 (7th Cir. 1998). Rather, to get past summary judgment, a plaintiff must demonstrate that his alcoholism substantially limited his ability to perform a major life activity. This inquiry “is highly individualized.” EEOC v Autozone, Inc., 630 F.3d 635, 643 (7 th Cir. 2010)(assessment under ADA is a “highly individualized examination that considers the facts of each case independently …”); Schneiker, 200 F.3d at 1061 (finding that, although major depression can be a covered disability under the ADA, plaintiff did not demonstrate that her depression substantially limited her ability to perform a major life activity); see also Baert, 149 F.3d at 631 (“The question of whether an impairment constitutes a disability and whether it substantially impairs a major life activity is an individualized inquiry, which must be determined on a case-by-case basis.”). Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 23 of 29 21 Dr. Harter wrote that Milkey could return to work on January 15, 2015 with no restrictions. (DPFOF 40, 42, 43.) ERCO admits that Milkey suffered from alcohol dependence when he checked into the hospital on January 9, 2015. However, Milkey has the burden of establishing a substantial limitation in a major life activity. Additionally, even assuming his alcoholism substantially limited a major life activity, Milkey was not otherwise qualified because he was not meeting ERCO’s legitimate expectations regarding attendance. Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999) (“[I]t is fair to conclude that in most instances the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability.”); Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir. 2000) (“Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job.”) Attendance was a basic requirement of the job. There was no reason Milkey could not work when he was not attending therapy. Therefore, giving him time off for him to stay away from work when he was not at therapy would not have been a reasonable accommodation. And therefore, Milkey was not otherwise qualified. B. Plaintiff’s ADA Discrimination Claim Fails. Even assuming Milkey had a disability under the ADA, his discrimination claim still fails because he cannot establish he was terminated because of his disability. Like his FMLA claim, this element requires that Milkey prove that his disability caused the adverse action at issue. In other words, he must show that the Company’s discriminatory animus toward alcoholism caused the termination. Bunn, 753 F.3d at 684. Like an FMLA relation claim, this requires more than just temporal proximity. Id. And, like an FMLA retaliation claim, a plaintiff cannot establish a Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 24 of 29 22 causal connection between his disability and the employer’s adverse action when the employer had a legitimate reason for its adverse action. As discussed in the FMLA retaliation section above (see Sec. I.B supra), ERCO terminated Milkey for excessive absenteeism and because it had an honest belief he had misused his FMLA leave, not because of Milkey’s alcoholism. (DPFOF 139, 144.) These are both legitimate, non-discriminatory reasons. Therefore, for all the reasons Milkey’s FMLA retaliation claim fails, Milkey cannot sustain an ADA discrimination claim because he cannot establish any causal connection between his alleged disability and his termination. In fact, ERCO has demonstrated that it does not take adverse action against employees who are recovering from alcoholism because of their alcoholism. Indeed, ERCO has permitted at least two other employees to take a continuous leave of absence for a period of time, with additional intermittent leave at other times when that was requested as a necessary accommodation by the employees’ doctor or counselor. (DPFOF 162, 163.) No evidence suggests that ERCO terminated him due to his alcoholism, rather than his excessive absenteeism and for misusing his disability leave. Not only that, there is undisputed evidence that contradicts the idea that ERCO terminated Milkey because of hostility towards alcoholism. Milkey thought Bielefeldt was very supportive of him after Bielefeldt knew Milkey was going to need to attend therapy for alcoholism. (DPFOF 50, 51.) And when Milkey was asked why he thought he had been terminated, he said it was for a work-related reason, because his supervisors wanted him out of the way because of his seniority and knowledge. (DPFOF 151, 152.) Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 25 of 29 23 C. Plaintiff’s Failure to Accommodate Claim Fails. Milkey also alleges that ERCO failed to provide him with a reasonable accommodation. To establish a failure to accommodate claim, Milkey must prove: (1) he was a qualified individual with a disability; (2) ERCO was aware of this disability; and (3) ERCO failed to accommodate his disability. Bunn, 753 F.3d at 682. Even assuming Milkey was disabled under the ADA, Milkey cannot prevail on a failure to accommodate claim because ERCO did reasonably accommodate his alleged disability. Additionally, Milkey would need to prove his disability caused his termination. Foster v. Arthur Anderson, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). Moreover, even if ERCO did not reasonably accommodate Milkey’s alleged disability, Milkey would still be foreclosed from raising a failure to accommodate claim because he was responsible for a breakdown of the interactive process. 1. ERCO reasonably accommodated Plaintiff’s alleged disability. It is well established that “[a]n employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation.” Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996); Swanson v. Village of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015) (“[T]he ADA does not entitle a disabled employee to the accommodation of his choice.”). An expansive accommodation is not required when a narrow one is all that is medically required. The law only entitles a disabled employee to a “reasonable accommodation in view of his limitations and his employer’s needs.” Swanson, 794 F.3d at 827 (emphasis in original). “Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job.” See Jovanovic, 201 F.3d at 899-900 This is especially true in production jobs like Milkey’s. Id. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 26 of 29 24 (“This is especially true in factory positions . . . where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work.) ERCO gave Milkey a leave of absence to go into the hospital and withdraw from alcohol. It excused all his January absences up through January 14, 2015 as requested by Dr. Harter. (DPFOF 46.) This was a reasonable accommodation. After that, ERCO also accommodated his need to attend group therapy three times a week. It modified his work schedule and granted him intermittent leave so he could attend the scheduled therapy. (DPFOF 118, 138.) This again was a reasonable accommodation. But Milkey insisted on staying home from work completely during this time even though he had no disability that required this. He could not even say what he did when not attending therapy. As he admitted, he could have simply watched television. (DPFOF 149.) Milkey will argue he subjectively thought it would have been too stressful for him to work and attend therapy at the same time. But Milkey did not even attend all his therapy sessions. He missed three of the ten group sessions that took place during the three weeks he attended therapy. (DPFOF 146.) Additionally, Dr. Harter said he could return to work with no restrictions, other than “possibly” attending the intensive outpatient therapy. (DPFOF 40 (“Will it be necessary for the employee to attend work intermittently …? possibly” ), DPFOF 42 (“able to work”), DPFOF 43 (“He is able to return to work as of 1/1/15 further restrictions on the FMLA paperwork I completed today”)) And Ms. Hintzman said there was no reason Milkey could not work when he was not at therapy. (DPFOF 62, 157.) Staying away from work completely would not have been a reasonable accommodation. Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 27 of 29 25 2. The alleged disability did not cause the termination. As discussed above, in section I.2.B, Milkey’s alcoholism did not cause ERCO to terminate his employment. 3. If there was a failure to accommodate, ERCO was not responsible for that because Milkey caused a breakdown of the interactive process. The interactive process is referred to under the ADA regulations as an informal method to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). The interactive process “requires participation by both parties.” Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1999). Where the interactive process breaks down, courts look to which party is responsible for the break down. Id.; see Sieberns v. Wal-Mart Stores, Inc., 946 F. Supp. 664, 670 (N.D. Ind. 1996) When the employee is responsible for a breakdown of the interactive process, the employer is “left to guess what actions it should take.” Beck, 75 F.3d at 1137. As a result, “[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.” Id. (holding that, where employer does not obstruct the interactive process, “ADA liability simply does not follow”). In determining the responsible party, courts “look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.” Id. at 1135. “A party that obstructs or delays the interactive process is not acting in good faith.” Id. Hintzman admitted her communications were conflicting regarding the need for Milkey to be off of work completely. (DPFOF 158.) Hintzman was Milkey’s agent, and Milkey did nothing to help clear up the confusion. Instead, he misled both Bielefeldt and Hintzman about Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 28 of 29 26 what the other one had to say. He told Hintzman that ERCO would not let him off work to attend therapy. (DPFOF 89.) And he told ERCO that Hintzman said he needed to be off work completely. (DPFOF 141.) Both of these statements were false. To the extent there was a failure to accommodate, it was not the fault of ERCO. Therefore, Milkey cannot establish a failure to accommodate claim. CONCLUSION ERCO has established that there is no genuine issue of material fact and that ERCO is entitled to judgment as a matter of law. No reasonable jury could find in Plaintiff’s favor. Therefore, ERCO respectfully requests that the Court grant its motion for summary judgment. Dated this 20 th day of January, 2017. s/ David J. B. Froiland David J. B Froiland, Esq. State Bar No. 1031370 Mark A. Johnson, Esq. State Bar No. 1018110 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Pabst Boiler House 1243 North 10 th Street, Suite 210 Milwaukee, Wisconsin 53205 Email: david.froiland@ogletree.com Tel: 414-239-6412 (direct) Email: mark.johnson@ogletree.com Tel: 414-239-6408 (direct) Fax: 414-755-8289 ATTORNEYS FOR THE DEFENDANT, ERCO WORLDWIDE (USA), INC. 28369357.1 Case: 3:16-cv-00102-wmc Document #: 17 Filed: 01/20/17 Page 29 of 29