United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
Denise Sando is suing defendants Wood River Pharmacy, Inc.,
Chris Witzany, and Bellicose International, Inc. for
violating her rights under the Americans with Disabilities
Act (ADA), the Family and Medical Leave Act (FMLA), and state
law. She says that she was a “clerk pharmacy
technician” and “unit dose department
manager” and that the three defendants were her joint
employer. (For simplicity, the court will refer to the
defendants collectively as “Wood River.”)
to Sando, Wood River discriminated against her in various
ways because she needed to work a reduced schedule as a
result of multiple medical conditions. She says that they
continued to discriminate against her after she needed to
take medical leave and complained about the discriminatory
treatment. Ultimately, Wood River fired Sando. Sando also
says that Wood River prevented her from getting another job.
Sando's amended complaint includes five claims: (1)
discrimination, in violation of the ADA; (2) retaliation, in
violation of the ADA; (3) interference with medical leave, in
violation of the FMLA; (4) tortious interference with a
prospective contract, in violation of Wisconsin common law;
and (5) promissory estoppel under Wisconsin law.
River moves to dismiss claims (3) and (4) for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Dkt. 20. Wood River says that Sando's allegations are
insufficient to show that she qualifies for FMLA protections
or that Wood River tortiously interfered with a prospective
contract. The court disagrees with both contentions and will
deny the motion to dismiss.
evaluating a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the “court must accept the
complaint's well-pleaded factual allegations as true and
draw reasonable inferences from those allegations in the
plaintiff's favor.” Transit Express, Inc. v.
Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). The court
takes the following facts from Sando's amended complaint.
Sando worked at Wood River Pharmacy for 17 years. Bellicose
International “operat[es]” the pharmacy. Over the
course of her employment, Sando suffered from a variety of
illnesses and conditions that made it difficult to complete
work tasks when aggravated by stress and a lack of
medication: “Frozen Shoulder Syndrome, ” anxiety,
depression, Sjogren's Disease, and Lupus. Wood
River's family leave policy states that employees are
granted up to twelve weeks of unpaid leave for certain family
and medical reasons provided that the employee works at least
1, 250 hours in the previous twelve months.
this policy, Sando was qualified to take leave for her
medical conditions and did so several times between 2012 and
2014. Defendant Chris Witzany was the managing pharmacist at
Wood River, and whenever Sando needed to take leave, she
presented Witzany with a doctor's note and coordinated
her schedule with the pharmacy team. In response to these
requests, Witzany “expressed retaliatory intent,
” reduced her vacation time, reduced her pay, and held
her to different performance standards. Despite this, Witzany
told Sando that her job was safe.
spoke to Sam Venigalla, Wood River's owner, about these
events, but Venigalla told her that Witzany was “free
to run the pharmacy as its manager however he wants.”
Dkt. 11, ¶ 49. Upon receiving Sando's final request
for leave on October 17, 2014, Witzany terminated her.
she filed a discrimination and retaliation complaint with the
Equal Employment Opportunity Commission (“EEOC”)
and applied for other jobs. She had trouble finding one
because Witzany provided malicious employment references to
potential employers. On June 9, 2017, the EEOC issue a
right-to-sue letter, and this suit was commenced.
evaluating a motion to dismiss under Rule 12(b)(6), the
question is “simply whether the complaint includes
factual allegations that state a plausible claim for
relief.” BBL, Inc. v. City of Angola, 809 F.3d
317, 325 (7th Cir. 2015); accord Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The plausibility requirement calls
for “enough details about the subject-matter of the
case to present a story that holds together.”
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi.
& Nw. Ind., 786 F.3d 510, 526 (7th Cir. 2015)
(citation and quotation marks omitted).
Family and Medical Leave Act
River challenges Sando's claim under the FMLA on the
ground that Sando has not adequately alleged that she meets
the requirements for FMLA eligibility. An employee is
eligible for FMLA protections if: (1) she has been employed
by the employer for at least 12 months; (2) she has at least
1, 250 hours of service during the 12 months before she
requested leave; and (3) the employer has more than 50
employees who work within 75 miles of ...