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Goad v. Milwaukee County

United States District Court, E.D. Wisconsin

March 21, 2018

NEAL GOAD, Plaintiff,


          DAVID E. JONES United States Magistrate Judge.

         Neal 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.

         Mr. 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.

         As the 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.

         Following 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.

         I. Factual Background[1]

         On 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.

         The 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 forth.

         Mr. 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 ¶ 24.

         In May 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.

         When 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.

         Upon 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.[2] 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).

         In 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.

         Mr. 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.

         Mr. 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.

         The 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.

         Upon 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.

         The 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.

         Ms. 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.

         Following 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.

         II. Procedural Background

         Mr. 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 ...

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