United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANT'S MOTION FOR
E. JONES United States Magistrate Judge.
Goad was employed by Milwaukee County (the County) as a
facilities maintenance worker from February 2012 until
December 2015. During the course of Mr. Goad's
employment, the County ranked the members of his maintenance
crew based on seniority. This ranking was used, among other
things, to establish the workers' schedules.
Goad began his employment ahead of only one crew member on
the seniority list, but he then moved to third-to-last after
the County hired a new maintenance worker. From June 2013
until September 2013, Mr. Goad was out on medical leave after
breaking his arm. Mr. Goad's supervisor erroneously
believed that this leave period did not count as accrued time
toward the County's seniority system. Consequently, by
the time Mr. Goad returned from leave, he had been passed by
the only two co-workers beneath him in seniority.
last-ranked crew member, Mr. Goad had the worst schedule. He
was frequently required to return to work just eight hours
after finishing a shift. As a result, Mr. Goad became sleep
deprived, depressed, anxious, and irritable. When Mr. Goad
complained about his schedule, he learned that the supervisor
erred in holding the missed time against him. By that time,
however, Mr. Goad did in fact have the least amount of
seniority on his crew. Mr. Goad was eventually terminated
following an altercation with a co-worker.
his termination, Mr. Goad filed suit in federal court,
alleging that the County interfered with his rights under the
Family and Medical Leave Act (FMLA) of 1993 and the ADA
Amendments Act (ADAAA) of 2008 and retaliated against him for
exercising his FMLA rights. The County has moved for summary
judgment on all of Mr. Goad's claims. For the reasons
that follow, the Court finds that the County is entitled to
summary judgment on Mr. Goad's FMLA retaliation and ADAAA
claims but not his FMLA interference claim. The County's
motion will therefore be granted in part and denied in part,
as explained below.
February 12, 2012, Milwaukee County hired Neal Goad as a
facilities maintenance worker. Defendant's Proposed
Findings of Fact in Support of Its Motion for Summary
Judgment (Def.'s Facts) ¶¶ 1-2, ECF No. 30. In
that capacity, Mr. Goad was responsible for lawn care,
salting, snow removal, light bulb replacement, general
maintenance, and grounds maintenance. Def.'s Facts ¶
3. Mr. Goad's initial assignment was at the Vel R.
Phillips Juvenile Justice Center, labeled by the County as
Facilities West. Def.'s Facts ¶ 4.
County used a seniority system for its facilities maintenance
workers. See Def.'s Facts ¶¶ 10-16. Workers
were ranked based on the hours they had accrued, excluding
overtime. This ranking was used, in part, to determine the
workers' schedules. Workers with the same No. of
seniority hours were ranked based on the last four digits of
their social security No. the worker with the highest No.
received the highest seniority ranking and so on and so
Goad was initially (and incorrectly) ranked second-to-last on
his maintenance crew, ahead of only Devin Richard. See
Def.'s Facts ¶ 22. Although both were hired and
began work on the same day, Mr. Richard's social security
No. is higher than Mr. Goad's, entitling Mr. Richard to
higher seniority under the applicable work rules. Def.'s
Facts ¶ 23. But for the County's mistake, Mr. Goad
would have been the lowest ranked facilities maintenance
worker at the outset of his employment. Def.'s Facts
2013, Mr. Goad broke his arm. Plaintiff's Proposed
Findings of Fact (Pl.'s Facts) ¶ 4, ECF No. 33. He
informed his supervisor, Jason McCarthy, of the injury and
indicated that he needed time off to allow his arm to heal.
Pl.'s Facts ¶ 4. Mr. Goad took a leave of absence
under the FMLA. See Amended Complaint ¶ 10, ECF No. 13.
On August 9, 2013, Mr. Goad's doctor told him that he
could return to work on September 3, 2013. Am. Compl. ¶
11. When Mr. Goad called Mr. McCarthy to inform him of his
impending return to work, Mr. McCarthy told Mr. Goad that he
had “lost time” as a result of his unpaid leave.
See Am. Compl. ¶ 12-14; Pl.'s Facts ¶ 5;
Def.'s Facts ¶¶ 26, 28-33. Mr. Goad therefore
would have the least amount of seniority of the workers on
his maintenance crew upon his return.
Mr. Goad returned to work as planned in September 2013, he
was listed last on the schedule, immediately behind Mr.
Richard and Derrick Watson, a maintenance worker who started
in late February 2012-two weeks after Mr. Goad and Mr.
Richard. See Def.'s Facts ¶¶ 25, 40. Facilities
workers were scheduled for multiple different shifts (i.e.,
first, second, or third) during the same two-week pay period,
which sometimes required them to return to work just eight
hours after finishing a shift. See Am. Compl. ¶ 15-17;
Pl.'s Facts ¶ 7; Def.'s Facts ¶ 57-58. Mr.
Goad was informed during the interview process that the
facilities maintenance position involved working such
“swing shifts.” Def.'s Facts ¶ 58.
his return, Mr. Goad was required to work more swing shifts
than he had prior to taking FMLA leave. Pl.'s Facts
¶ 7. Before going out on leave, Mr. Goad had worked
twelve swing shifts; he worked fourteen such shifts upon his
return. Similarly, upon his return, Mr. Goad was required to
work more swing shifts than his closest peers in seniority.
Prior to Mr. Goad's leave, Mr. Richard had worked fifteen
swing shifts while Mr. Watson had worked twelve. After Mr.
Goad returned, Mr. Richard worked four and Mr. Watson worked
five. See Pl.'s Facts ¶¶ 40-50;
Def.'s Facts ¶¶ 42-48, 61-71 (citing Exhibit 11
to Declaration of Kristofor L. Hanson, ECF No. 28-11).
Spring 2014, Mr. Goad learned that he should not have lost
seniority for taking unpaid leave. See Pl.'s Facts
¶¶ 8-11. He subsequently called Mr. McCarthy to
question why he was last on the schedule. See Am. Compl.
¶ 20; Pl.'s Facts ¶¶ 22-24, 26, 30-31;
Def.'s Facts ¶¶ 94-99. Mr. McCarthy explained
that Mr. Goad and Mr. Richard had the least amount of time
accrued, but Mr. Goad was listed last as a result of the
County's tiebreaking system. By that time, Mr. McCarthy
had learned that unpaid leave time did not affect seniority.
See Plaintiffs Response to Def.'s Facts ¶ 99, ECF
No. 34 (citing Exhibit 9 to Declaration of Brenda Lewison,
ECF No. 35-9). On June 10, 2014, Mr. Goad received a written
reprimand for the conduct he exhibited during his phone
conversation with Mr. McCarthy. Am. Compl. ¶ 21;
Pl.'s Facts ¶ 25; Def.'s Facts ¶ 93.
Goad claims that he developed “swing shift
syndrome” (also known as shift work disorder) as a
result of having to work more swing shifts. See Am. Compl.
¶ 18. This condition “is characterized by
depression, anxiety, irritability, and sometimes, increased
absenteeism and accidents due to sleep deprivation.”
Id. Mr. Goad testified, however, that he did not
inform anyone at the County about his medical conditions.
Def.'s Facts ¶¶ 86-88 (citing Exhibit 3 to
Supplemental Declaration of Kristofor L. Hanson, ECF No. 39-3
at 13). But he did take advantage of the County's
Employee Assistance Program-a program used to provide
employees with opportunities to address workplace issues, see
Def.'s Facts ¶ 119- and voluntarily sought mental
health treatment for depression and anxiety, see Am. Compl.
¶ 22; Pl.'s Facts ¶ 21.
Goad continuously had conflicts with co-workers while
stationed at Facilities West. Def.'s Facts ¶¶
91-95. The conflicts became so disruptive that Gary Waszak,
the facilities maintenance manager, decided to consult the
human resources manager assigned to the facilities division,
Sean Moore. Def.'s Facts ¶¶ 34, 79, 117. Given
the concerns from Mr. Goad's supervisors, in October
2014, Mr. Moore determined that Mr. Goad should participate
in the Employee Assistance Program. See Def.'s Facts
¶¶ 115-18. He issued the mandatory referral during
a meeting he arranged with Mr. Goad and Mr. Waszak. Pl.'s
Facts ¶ 33. During that meeting, Mr. Goad indicated that
he was already seeing someone from the Employee Assistance
Program and questioned why he had to see someone else.
Pl.'s Facts ¶ 34.
mandatory referral letter, which was addressed to Mr. Goad,
stated as follows: “A review of your past/current
performance has indicated a problem with/history of not
following directions of [your] supervisor, raising your voice
and being defensive and accusatory with your supervisor,
having a poor attitude and not being helpful with clients
when responding to work orders.” See Exhibit 12 to
Hanson Decl., ECF No. 28-13 at 5-6. The letter also described
Mr. Goad's specific behavioral problems, indicated that
Mr. Goad would be referred to a licensed clinician or
treatment facility “to help address the workplace
issues, ” and emphasized that Mr. Goad's compliance
with any recommended “treatment” was mandatory.
Id.; see also Pl.'s Facts ¶ 56.
returning to work following the mandatory referral, Mr. Goad
was involuntarily transferred to the Milwaukee County
Courthouse. Def.'s Facts ¶¶ 5, 91, 125. Mr.
Goad was pleased with his new schedule at the Courthouse, but
he continued to have problems with co-workers. See Def.'s
Facts ¶¶ 126-27. For example, on March 17, 2015,
Mr. Goad slapped a radio out of the hands of Anthony Dailey.
Def.'s Facts ¶¶ 128-30; see also Am. Compl.
¶¶ 30-32. The following day, Mr. Goad and Mr.
Dailey were involved in a verbal confrontation while working
at the Courthouse loading dock. Def.'s Facts ¶ 135;
see also Am. Compl. ¶¶ 33-35.
incidents between Mr. Goad and Mr. Dailey were investigated
by Mary Beth Buechel, the County's human resources
business partner. See Def.'s Facts ¶¶ 134-39
(citing Exhibit 13 to Hanson Decl., ECF No. 28-14). Mr.
Dailey received a written reprimand for his actions. Ms.
Buechel determined, however, that Mr. Goad escalated the
March 17 incident and instigated the one on March 18. Based
on those findings, as well as Mr. Goad's prior
discipline, on April 21, 2015, Ms. Buechel recommended that
Mr. Goad be discharged. Ex. 13; see also Pl.'s Facts
¶ 61; Def.'s Facts ¶ 137. Ms. Buechel listed
Mr. Goad's mandatory referral to the Employee Assistance
Program as “prior discipline.” See Ex. 13 at 3;
see also Pl.'s Facts ¶ 59.
Buechel prepared the written charges, which were signed by
Jeremy Theis, the County's director of facilities
management, on May 21, 2015. See Exhibit A to Declaration of
Mary Beth Buechel, ECF No. 25-1; see also Def.'s Facts
¶ 147. The charges stemmed from the March 18, 2015
verbal confrontation with Mr. Dailey; the March 17, 2015
physical confrontation with Mr. Dailey; the June 2014 written
reprimand; and the October 2014 mandatory referral. Ex. A.
Mr. Goad was suspended without pay pending the final decision
of the County's Personnel Review Board. Ex. 12 at 1.
several hearings, on December 8, 2015, the Review Board
upheld the charges for discharge. See Exhibit B to Buechel
Decl., ECF No. 25-2; Pl.'s Facts ¶ 63; Def.'s
Facts ¶¶ 147-49. The Review Board determined that
Mr. Goad had violated the following civil service rules of
the County: threatening, intimidating, coercing, or harassing
employees or supervision at any time; interference with
normal work flow or departmental procedures; indecent,
criminal, or inappropriate conduct on county premises during
working hours; and offensive conduct or language toward the
public or toward county officers or employees. Ex. B at 2.
The Review Board's decision also referenced the mandatory
referral and questioned why the investigation of the charges
against Mr. Goad took so long. See Ex. B at 5-7.
Goad filed the present action on August 7, 2015, see
Complaint, ECF No. 1, and he timely filed an amended
complaint on April 1, 2016, see Scheduling Order, ECF No. 12.
The matter was reassigned to this Court in August 2016 after
the parties consented to magistrate judge jurisdiction. See
Consent to Proceed ...