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McKenzie v. Seneca Foods Corp.

United States District Court, W.D. Wisconsin

March 27, 2017

AFTON MCKENZIE, Plaintiff,
v.
SENECA FOODS CORPORATION, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Plaintiff Afton McKenzie, having been diagnosed with Lyme disease, asked her employer, defendant Seneca Foods Corporation, to approve her medical leave under the Family and Medical Leave Act (FMLA), 28 U.S.C. § 2601 et seq. Although Seneca approved the vast majority of McKenzie's requested medical leave, it determined that McKenzie did not follow the proper procedures for requesting approval on two days. Because those two unexcused absences put McKenzie over the limit set by Seneca's attendance policy, Seneca fired McKenzie. McKenzie now brings suit against Seneca, alleging that it interfered with her FMLA rights, retaliated against her for requesting FMLA leave, and violated the Americans with Disability Act (ADA), 42 U.S.C. § 12101 et seq., by failing to accommodate McKenzie's disability.

         Seneca moves for summary judgment on all claims. Dkt. 8. The court will grant summary judgment to Seneca on the FMLA interference and ADA claims. But because McKenzie adduces evidence from which a reasonable juror could infer that Seneca fired her in retaliation for her use of FMLA leave, the court will deny Seneca's motion on this claim, and that claim will have to be resolved at trial.

         UNDISPUTED FACTS

         The following facts are undisputed, except where noted.

         McKenzie began working at Seneca's can-manufacturing facility in Baraboo, Wisconsin, in 2009. Seneca and its employees are covered by the FMLA, under which eligible employees are entitled to up to 12 workweeks of leave during a 12-month period if the employee has a serious health condition that renders her unable to perform the functions of her position or if the employee must care for her spouse, child, or parent with a serious health condition. 29 U.S.C. § 2612(a)(1).

         Seneca had policies governing employee attendance and the taking of FMLA leave. The attendance policy is basically a point system that leads to progressive discipline. Employees are assessed a point for each unapproved absence. When an employee accrues 5 points within the previous 12 “worked months, ” a human resource representative will speak with the employee and place a memo documenting the conversation in the employee's file. Dkt. 21-1, at 1. Upon accruing 7 points within the previous 12 worked months, the employee will receive a verbal disciplinary notice. Upon accruing 8 points, the employee will receive a written disciplinary notice. Upon accruing 9 points, the employee will be terminated. Id. The policy provides one exception:

Extenuating circumstances, such as but not limited to, continuing physical illness requirement weekly/monthly treatments, will be reviewed on an individual basis and may be exempt from the attendance policy with prior approval from the Plant Manager.

Id.

         Seneca's FMLA leave policy requires that Seneca employees provide notice both to Seneca and its third-party FMLA administrator, Unum. Under the policy, an employee must provide notice at least 30 days in advance “[w]hen the need for the leave is foreseeable.” Dkt. 5-1, at 11. If an employee discovers the need for FMLA leave less than 30 days in advance, he or she “must provide notice of the need for the leave either the same day or the next business day.” Id. If “the need for FMLA leave is not foreseeable, the employee must comply with [Seneca's] usual and customary notice and procedural requirements for requesting leave and being absent for unusual circumstances.” Id. Seneca's written policy does not describe its “usual and customary notice and procedural requirements for requesting leave, ” but the parties agree that Seneca usually required employees to notify Seneca and Unum of their request for FMLA leave the same day that they take leave or the next business day. The parties also agree that “Unum makes the ultimate determination whether an employee is certified for purposes of taking FMLA leave.” Dkt. 19, ¶ 60.

         While working at Seneca, McKenzie requested, and Seneca generally approved, excused time off under the FMLA so that she could care for her mother, who had a serious medical condition. In February 2013, McKenzie was diagnosed with Lyme disease. Her symptoms included fatigue, headaches, muscle and joint pain, numbness, dizziness, tremors, weakness, depression, and anxiety. On March 15, 2013, McKenzie gave Seneca a note from her doctor explaining that she had been diagnosed with Lyme disease and that it would sometimes prevent her from working. Seneca accepted that McKenzie's Lyme disease was a serious medical condition, and it regularly approved her requests for intermittent FMLA leave several times per month.

         But McKenzie did not always comply with Seneca's notice requirements. She sometimes notified Unum of her request for FMLA leave days, weeks, or months after her absence. Although this practice did not comply with Seneca's FMLA procedural requirements, Unum retroactively approved McKenzie's requests for FMLA leave, and at least at first Seneca did not assess points for McKenzie's retroactively approved FMLA leave. For example, although Seneca initially assessed McKenzie a point for her absence on August 6, 2013, it reclassified that absence to approved FMLA leave after McKenzie notified Unum of that date in October.

         But beginning in late summer, 2013, McKenzie had a spate of absences, and Seneca more stringently applied its FMLA leave policy to McKenzie. On August 25, McKenzie called Seneca and explained that she was taking FMLA leave, but she did not notify Unum. Seneca assessed McKenzie a point. On September 3, McKenzie left early-without approval-and was assessed half a point. On September 7, McKenzie received a written disciplinary notice because she had accumulated 8 points within the past 12 months of work.[1] On September 25, McKenzie again called Seneca and explained that she was taking FMLA leave but did not notify Unum. Seneca assessed McKenzie another point. On October 18, Seneca assessed McKenzie half a point for leaving early. On October 28, McKenzie called Seneca and explained that she would be absent on personal business; Seneca assessed McKenzie another point. On December 13, McKenzie once again called Seneca and explained that she was taking FMLA leave but did not notify Unum. Seneca assessed McKenzie another point.

         Then things quieted down, and McKenzie was not absent, for any reason, for more than a month. On January 21, 2014, McKenzie took approved FMLA leave. Three days later, Seneca told McKenzie that her absences on September 25 and December 13 had not been approved for FMLA leave because she failed to notify Unum. McKenzie told Seneca that she would seek retroactive approval from Unum for those absences. The next day, January 25, 2014, McKenzie took approved FMLA leave. Three days later, on January 28, Seneca managers met with McKenzie, explained that she had accumulated 9.5 points, and suspended her pending further investigation of her absences. After this meeting, McKenzie contacted Unum to seek retroactive approval of FMLA leave for her August 25, September 25, October 28, and December 13 absences.

         On January 29, Unum notified Seneca that it approved FMLA leave for McKenzie's August 25 and September 25 absences. Despite Unum's approval, Seneca did not reclassify McKenzie's absences on these dates. This was highly unusual: Seneca's human resources administrator could not remember another ...


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