United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Afton McKenzie, having been diagnosed with Lyme disease,
asked her employer, defendant Seneca Foods Corporation, to
approve her medical leave under the Family and Medical Leave
Act (FMLA), 28 U.S.C. § 2601 et seq. Although
Seneca approved the vast majority of McKenzie's requested
medical leave, it determined that McKenzie did not follow the
proper procedures for requesting approval on two days.
Because those two unexcused absences put McKenzie over the
limit set by Seneca's attendance policy, Seneca fired
McKenzie. McKenzie now brings suit against Seneca, alleging
that it interfered with her FMLA rights, retaliated against
her for requesting FMLA leave, and violated the Americans
with Disability Act (ADA), 42 U.S.C. § 12101 et
seq., by failing to accommodate McKenzie's
moves for summary judgment on all claims. Dkt. 8. The court
will grant summary judgment to Seneca on the FMLA
interference and ADA claims. But because McKenzie adduces
evidence from which a reasonable juror could infer that
Seneca fired her in retaliation for her use of FMLA leave,
the court will deny Seneca's motion on this claim, and
that claim will have to be resolved at trial.
following facts are undisputed, except where noted.
began working at Seneca's can-manufacturing facility in
Baraboo, Wisconsin, in 2009. Seneca and its employees are
covered by the FMLA, under which eligible employees are
entitled to up to 12 workweeks of leave during a 12-month
period if the employee has a serious health condition that
renders her unable to perform the functions of her position
or if the employee must care for her spouse, child, or parent
with a serious health condition. 29 U.S.C. § 2612(a)(1).
had policies governing employee attendance and the taking of
FMLA leave. The attendance policy is basically a point system
that leads to progressive discipline. Employees are assessed
a point for each unapproved absence. When an employee accrues
5 points within the previous 12 “worked months, ”
a human resource representative will speak with the employee
and place a memo documenting the conversation in the
employee's file. Dkt. 21-1, at 1. Upon accruing 7 points
within the previous 12 worked months, the employee will
receive a verbal disciplinary notice. Upon accruing 8 points,
the employee will receive a written disciplinary notice. Upon
accruing 9 points, the employee will be terminated.
Id. The policy provides one exception:
Extenuating circumstances, such as but not limited to,
continuing physical illness requirement weekly/monthly
treatments, will be reviewed on an individual basis and may
be exempt from the attendance policy with prior approval from
the Plant Manager.
FMLA leave policy requires that Seneca employees provide
notice both to Seneca and its third-party FMLA administrator,
Unum. Under the policy, an employee must provide notice at
least 30 days in advance “[w]hen the need for the leave
is foreseeable.” Dkt. 5-1, at 11. If an employee
discovers the need for FMLA leave less than 30 days in
advance, he or she “must provide notice of the need for
the leave either the same day or the next business
day.” Id. If “the need for FMLA leave is
not foreseeable, the employee must comply with [Seneca's]
usual and customary notice and procedural requirements for
requesting leave and being absent for unusual
circumstances.” Id. Seneca's written
policy does not describe its “usual and customary
notice and procedural requirements for requesting leave,
” but the parties agree that Seneca usually required
employees to notify Seneca and Unum of their request for FMLA
leave the same day that they take leave or the next business
day. The parties also agree that “Unum makes the
ultimate determination whether an employee is certified for
purposes of taking FMLA leave.” Dkt. 19, ¶ 60.
working at Seneca, McKenzie requested, and Seneca generally
approved, excused time off under the FMLA so that she could
care for her mother, who had a serious medical condition. In
February 2013, McKenzie was diagnosed with Lyme disease. Her
symptoms included fatigue, headaches, muscle and joint pain,
numbness, dizziness, tremors, weakness, depression, and
anxiety. On March 15, 2013, McKenzie gave Seneca a note from
her doctor explaining that she had been diagnosed with Lyme
disease and that it would sometimes prevent her from working.
Seneca accepted that McKenzie's Lyme disease was a
serious medical condition, and it regularly approved her
requests for intermittent FMLA leave several times per month.
McKenzie did not always comply with Seneca's notice
requirements. She sometimes notified Unum of her request for
FMLA leave days, weeks, or months after her absence. Although
this practice did not comply with Seneca's FMLA
procedural requirements, Unum retroactively approved
McKenzie's requests for FMLA leave, and at least at first
Seneca did not assess points for McKenzie's retroactively
approved FMLA leave. For example, although Seneca initially
assessed McKenzie a point for her absence on August 6, 2013,
it reclassified that absence to approved FMLA leave after
McKenzie notified Unum of that date in October.
beginning in late summer, 2013, McKenzie had a spate of
absences, and Seneca more stringently applied its FMLA leave
policy to McKenzie. On August 25, McKenzie called Seneca and
explained that she was taking FMLA leave, but she did not
notify Unum. Seneca assessed McKenzie a point. On September
3, McKenzie left early-without approval-and was assessed half
a point. On September 7, McKenzie received a written
disciplinary notice because she had accumulated 8 points
within the past 12 months of work. On September 25, McKenzie
again called Seneca and explained that she was taking FMLA
leave but did not notify Unum. Seneca assessed McKenzie
another point. On October 18, Seneca assessed McKenzie half a
point for leaving early. On October 28, McKenzie called
Seneca and explained that she would be absent on personal
business; Seneca assessed McKenzie another point. On December
13, McKenzie once again called Seneca and explained that she
was taking FMLA leave but did not notify Unum. Seneca
assessed McKenzie another point.
things quieted down, and McKenzie was not absent, for any
reason, for more than a month. On January 21, 2014, McKenzie
took approved FMLA leave. Three days later, Seneca told
McKenzie that her absences on September 25 and December 13
had not been approved for FMLA leave because she failed to
notify Unum. McKenzie told Seneca that she would seek
retroactive approval from Unum for those absences. The next
day, January 25, 2014, McKenzie took approved FMLA leave.
Three days later, on January 28, Seneca managers met with
McKenzie, explained that she had accumulated 9.5 points, and
suspended her pending further investigation of her absences.
After this meeting, McKenzie contacted Unum to seek
retroactive approval of FMLA leave for her August 25,
September 25, October 28, and December 13 absences.
January 29, Unum notified Seneca that it approved FMLA leave
for McKenzie's August 25 and September 25 absences.
Despite Unum's approval, Seneca did not reclassify
McKenzie's absences on these dates. This was highly
unusual: Seneca's human resources administrator could not
remember another ...