Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brooks v. Community Memorial Hospital of Menomonee Falls Inc.

United States District Court, E.D. Wisconsin

June 11, 2018





         On September 12, 2016, Vernard Brooks was terminated from his position as an environmental services attendant with Froedtert Health, Inc., a regional health system that includes Community Memorial Hospital of Menomonee Falls, Inc.. Brooks filed this lawsuit on May 8, 2017, alleging interference with his rights under the Family and Medical Leave Act (FMLA), discrimination in violation of the Americans with Disabilities Act (A DA), and retaliation for the exercise of his rights under the FMLA and ADA. (ECF No. 1.) All parties consented to the jurisdiction of a magistrate judge. (ECF Nos. 4 and 8.)

         Defendants have filed a motion for summary judgment on all counts. (ECF No. 16.) In support of their motion the defendants rely on a number of exhibits that are offered as attachments to an unsworn “declaration” of one of their attorneys, Doris Brosnan. However, the Brosnan declaration does not comply with 28 U.S.C. § 1746. The declaration begins like an affidavit, stating “Doris E. Brosnan, being duly sworn on oath, states as follows: …” But the statement is not actually submitted under oath; it is not notarized and it lacks any sort of jurat or seal. (ECF No. 19 at 1.) And because it is missing the statutorily required statement, “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)[, ]” 28 U.S.C. § 1746(2), it is not an unsworn declaration.

         In opposing the motion Brooks relies on a number of exhibits that are offered as attachments to what purports to be an affidavit of his lawyer, Adam Kent. But the Kent affidavit contains no jurat or seal and is not notarized. (ECF No. 23.)

         Ordinarily, the court would be compelled to disregard the Brosnan declaration and the Kent affidavit and, consequently, all the exhibits each purports to authenticate. However, the Brosnan declaration and the Kent affidavit each were submitted for the limited purpose of submitting documents, the authenticity of which no one disputes. In the absence of any objection to the authenticity of any of the attached exhibits, the court will accept them as evidence for purposes of considering the summary judgment motion despite the parties' noncompliance with the requirements for affidavits and unsworn declarations.

         However, the affidavits of Jacqueline Cox (ECF No. 26) and plaintiff Brooks (ECF No. 24), submitted by Brooks in opposition to the defendants' motion, are another matter. Like the Kent affidavit, neither is notarized. The Brooks affidavit lacks any jurat or seal. The Cox affidavit contains a form jurat, but aside from a “2” in the space for the day, the jurat is blank, without a name or signature of a notary or details as to the notary's commission. Nor is there a seal. Unlike the Kent affidavit, both the Cox and the Brooks affidavits set forth evidentiary facts that Brooks relies on, at least in part, in opposing the defendants' motion.

         An affidavit must be “sworn to before someone who is authorized to administer an oath.” Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). For purposes of summary judgment, “unsworn documents purporting to be affidavits may be rejected.” Id. The defects in the Cox and Brooks affidavits are not mere technicalities that the court may overlook. There is no indication that the affidavits were sworn to before a notary, nor do they comply with the requirements for an unsworn declaration under 28 U.S.C. § 1746. Cf. Pfeil, 757 F.2d at 859 (concluding the court erred in rejecting affidavit because it lacked notarial seal when jurat indicated it was nonetheless sworn to before notary and otherwise complied with 28 U.S.C. § 1746). In short, there is no reason to believe that the penalties of perjury would apply to any false statement contained in the two documents. Therefore, the court finds it cannot consider these purported affidavits.


         Defendant Froedtert Health, Inc. is a regional health system that includes defendant Community Memorial Hospital of Menomonee Falls, Inc. (ECF No. 22, ¶ 1.) Brooks was hired by Froedtert in December 2013 as an Environmental Services Attendant (“EVS Attendant”). (ECF No. 1, ¶ 9.) EVS Attendants may be required to clean patient rooms, clinics, offices, and floors, remove trash, answer calls for beds, and clean up spills. (ECF No. 22, ¶ 27.)

         Froedtert has a number of personnel policies. Among them are a Staff Attendance Policy (ECF No. 19-1), a Corrective Action Policy (ECF No. 19-2), a Staff Appeal Policy (ECF No. 19-3), a Leave of Absence and Return to Work Policy (ECF No. 19-4), a Bereavement Policy (ECF No. 19-5), an EVS Attendance and Tardiness Policy (ECF No. 19-6), and an EVS Call-In Policy (ECF No. 19-7.) Brooks disputes that the policies are applied equally at all times and to all employees. (ECF No. 22, ¶¶ 2-3.)

         The Staff Attendance Policy states that Froedtert staff will “[a]rrive at work on time” and “[w]ork their full shift as scheduled”. (ECF No. 19-1.) “[E]xcessive absenteeism and tardiness will not be tolerated.” (Id.) “The corrective action process will begin when a staff member incurs five (5) occurrences in a rolling twelve month period.” (Id.) An “occurrence” is any unscheduled time off and is defined as any of the following: two instances of tardiness, missing more than 25 percent of a shift, missing part of a shift because of leaving early, an unscheduled absence that results in missing from one to five consecutive days of scheduled work, and missing work for more than five consecutively-scheduled work days. (Id.)

         According to the Corrective Action Policy, corrective action normally will consist of written warnings for the first three occurrences, with a fourth occurrence resulting in discharge. (ECF No. 19-2.) According to the so-called “EVS Call-In Policy, ” EVS staff are to call in if “Sick, Late, Etc.” by calling the shift supervisor. (ECF No. 19-7.) If the shift supervisor is unavailable, the employee is to call in and speak with someone on the EVS team to let them know that he is not coming in or that he is going to be late. (Id.) The EVS Attendance and Tardiness Policy requires that, for unscheduled time off, EVS staff “must call in a minimum of one hour prior to the start of their shift.” (ECF No. 19-6.)

         Finally, Froedtert's “Leave of Absence and Return to Work” Policy provides “guidelines for absence away from the job when necessary due to serious medical conditions and family leave under the federal Family and Medical Leave Act (federal FMLA) and Wisconsin Family and Medical Leave Act (WFMLA), as an accommodation for a disability, and to provide return to work guidelines for the staff member.” (ECF No. 19-4.) Under that policy, for “unforeseeable leave” a staff member “must provide notice of absence pursuant to the departmental notification procedure as soon as practicable.” (Id.)

         When Brooks began working at Froedtert his general manager was Jacqueline Cox. (ECF No. 22, ¶ 29.) In May 2014 Brooks requested that Cox assign him permanently to the operating room. (ECF No. 22, ¶ 30.) Cox granted his request. (Id.)

         Approximately a year later, Brooks applied for and was granted FMLA leave from April 30, 2015, through May 25, 2015, due to a foot condition (post tibial tendinitis/left posterior tibial tendon dysfunction stage II and Gastrocnemius/Achilles contracture). (ECF No. 22, ¶¶ 39, 44.) Among other things, Brooks's foot condition limited his ability to stand and walk for long periods of time. (Id., ¶ 40.) When Brooks returned from his leave of absence, his physician submitted a Certificate of Return to Work requesting an accommodation of “limited walking - able to walk up to 4 hours in an 8 hour shift …” as well as 2 to 3 days off per month due to pain flare up. (ECF No. 22, ¶ 45.)

         Upon his return to work Brooks had a meeting with Cox in which they discussed his accommodations. (ECF No. 22, ¶ 47.) Brooks discussed his desire to stay in the operating room but was told he was going back to attendant duties because of staffing issues. (Id.) Froedtert alleges that the operating room position required Brooks to stand on his feet the entire shift, while Brooks contends that he could work in the operating room even with the recommended accommodations. (ECF No. 22, ¶¶ 48, 50.) Brooks and Cox signed a Temporary Accommodation Agreement that established a work assignment for Brooks in which he was to work “2 hours dietary, 2 hours laundry (sit), 2 hours dietary, 2 hours laundry.” (ECF No. 19-10.)

         Brooks was additionally granted intermittent FMLA leave due to his foot condition and was allowed to be off work 2-3 days per month. (ECF No. 22, ¶ 51.) Froedtert also allowed Brooks to use FMLA leave to be tardy for his shifts. (Id., ¶ 52.) Brooks's FMLA leave was eventually extended to allow him to call in late 4 to 5 times a week, and he began calling in late 4 to 5 days per week. (Id., ΒΆΒΆ 51, 53.) Brooks never asked for any further accommodation ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.