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Wilson v. Greenco Industries, Inc.

United States District Court, W.D. Wisconsin

March 7, 2019




         In her complaint, Elizabeth A. Wilson alleges that her former employer, Greenco Industries, Inc., violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act and Amendments Act of 2008 (“ADA”), 42 U.S.C. § 12101, et seq., by terminating her employment at the expiration of her FMLA leave. Before the court is defendant's motion for summary judgment. (Dkt. #10.) For the reasons that follow, the court will grant the motion as to all claims and direct entry of judgment in defendant's favor.


         A. Overview of the Parties

         Defendant Greenco is a private, non-profit organization that provides a variety of services to people with severe mental, physical or developmental disabilities. As part of its business, Greenco runs a long-term residential program, which consists of five licensed family homes, each with four beds, and two licensed family homes, each with two beds. Collectively, these seven homes are, therefore, capable of providing supportive living services to a total of 24 adults with a range of disabilities. This long-term residential program is managed by two “Supportive Living Services Coordinators, ” who oversee resident care and building maintenance.[2]

         Plaintiff Wilson was hired as one of these two full-time Coordinators on January 8, 2003, and she served in that capacity until her termination on March 28, 2016. As a Coordinator, Wilson was responsible for supervising approximately 35 caregivers working in the residences, as well as coordinating the care of approximately 24 residents. While Wilson's day-to-day duties varied, they typically included managerial work (such as scheduling staff, creating individual services plans, and overseeing employee work), and more hands-on responsibilities (such as escorting residents to doctors' appointments, assisting residents in getting into and out of vehicles, doing occasional maintenance like lawn work and basic plumbing problems, and assisting residents with personal care).[3]Wilson was also required to be on call in case a caregiver was unexpectedly unable to make his or her shift.[4]

         Coordinators are directly supervised by Greenco's Chief Executive Director. Beginning in 2001, Greenco's Chief Executive Director was Jean Zweifel, and she was plaintiff's direct supervisor at all relevant times. In September 2012, Chad Mathys was hired as Greenco's “Assistant Director, ” working under Zweifel. At that time, however, Mathys did not manage any employees, and he did not have the authority to hire or terminate any employees. In January 2016, the Board changed Mathys' job title from Assistant Director to “Executive Director.” Although Zweifel remained the Chief Executive Director, and accordingly Mathys' supervisor, Mathys was training to take over the CEO position upon Zweifel's retirement. After his change in title, the parties dispute whether Mathys had supervisory authority over Wilson. Still, there is no dispute that, while it was Zweifel's responsibility to evaluate Greenco employees' requests for accommodations for work restrictions or disabilities, Mathys sometimes assisted in those evaluations.

         B. Wilson's History of Back Surgeries and FMLA Leave

         Shortly after a motor vehicle accident in 1992, Wilson began experiencing problems with her back and neck, and she was diagnosed with degenerative disc disease. Wilson's neck and back pain worsened overtime, and by June 2012, the pain made it difficult for her to sit at a desk for long periods, do maintenance work and assist residents in getting into and out of vehicles. As set forth below, between 2012 and 2015, she underwent three surgeries on her neck and back, all performed by Dr. Christopher Sturm at Mercy Health System in Janesville, Wisconsin, and all giving rise to FLMA leave.

         On June 20, 2012, Dr. Sturm performed lumbar spine surgery, which included fusing Wilson's spine at the L4-5 and L5-S1 levels. Well in advance of that surgery, on April 30, 2012, Wilson requested, and Greenco granted, two to three months of medical leave under the FMLA, to commence on June 20. During this FMLA leave, Wilson regularly checked in with Greenco to advise how her recovery was progressing.

         By letter dated September 12, 2012 -- approximately 12 weeks after the commencement of the leave -- Kelly Casper, a nurse practitioner, notified Greenco that Wilson needed to remain off work for an additional four to six weeks to heal and that she would also require modifications upon her return to work. In turn, Nurse Casper notified Greenco in a September 25, 2012, letter, that Wilson was authorized to return to work on October 1, 2012, with the following restrictions:

Sedentary/light duty work Lift less than 10 lbs Waist to Waist lifting only No crouching or squatting Alternative sit/stand positions at least every 30 minutes Allow 15 rest breaks ever[y] 2 hours if needed[5] No tasks that require frequent forward bending Start 4 hours/day, 3 days/week x 1 week, then if tolerating, 4 hours/day, 5 days/week x 1 week, then advance hours/day as tolerated.

(Def.'s PFOFs (dkt. #12) ¶ 35.)

         As a result of first surgery, Wilson was ultimately allowed 12 weeks of FMLA leave and an additional 2.5 weeks of non-FMLA leave. At her deposition, Zweifel testified that Greenco “tried to follow the family medical leave, but if people asked, we would give them more time or they might come back part-time or whatever.” (Defs.' Resp. to Pl.'s PFOFs (dkt. #27) ¶ 23.) When she returned to work on October 1, Greenco also accommodated the restrictions identified in Casper's letter. Wilson increased her work to full-time by approximately October 10, but continued with her 10-pounds lifting restriction.

         On August 21, 2013, Wilson underwent her second back surgery, this time a two-level cervical fusion at ¶ 5-6-7. Again, Wilson previously requested, and Greenco granted, up to 12 weeks of FMLA leave to begin the day of the surgery. On November 19, 2013, Dr. Sturm notified Greenco that Wilson was authorized to return to work as of November 20, with the following restrictions:

No repetitive flexion/extension of the neck Lifting less than 10 lbs for one month, then she may progress to lifting less than 20 lbs She must be able to change positions as needed.

(Id. at ¶ 42.) Accordingly, Wilson was allowed 12 weeks of FMLA leave and 1 week of non-FMLA leave for this second surgery. When Wilson returned to work on November 20, Greenco again accommodated the identified restrictions. At some point, Wilson advanced to lifting 20 pounds, though that restriction was never lifted and Greenco accommodated that restriction.

         On November 23, 2015, Wilson provided Greenco with two letters regarding her need for a third surgery, both dated that same day. The first was a letter from Dr. Sturm, staying that Wilson “is to be off work starting 11-23-15, starting at noon until she is cleared by Neurosurgery” because “[s]he is waiting for surgery approval from her insurance company.” (Def.'s PFOFs (dkt. #12) ¶ 49.) The second letter was from Wilson requesting “a leave under FMLA effective immediately.” (Id.) Greenco once again granted this requested leave, with Zweifel informing Wilson that she would be eligible for FMLA leave through the end of the year, and for another 12 weeks of FMLA leave beginning January 1, 2016. On December 4, Wilson and Zweifel also had an in-person meeting regarding Wilson's requested FMLA leave, at which Zweifel provided Wilson with a one-page sheet regarding FMLA that both parties signed.

         On December 16, 2015, Wilson underwent her third surgery for a two-level lumbar fusion at ¶ 2-3 and L3-4. At some point after that surgery, Wilson and Zweifel spoke generally about her recovery. (Def.'s Resp. to Pl.'s PFOFs (dkt. #27) ¶ 44.)

         In January 2016, Wilson mailed a letter to Greenco that was drafted by Alyssa Watring, a physician assistant for Dr. Sturm, dated January 15, 2016. In the letter, Watring stated Wilson “is required to remain off work at this time” and would “return for her next follow-up in approximately 2 months, at which time return to work status will be reevaluated.” (Id. at ¶ 60.) At the bottom of the letter, Wilson added a handwritten noted stating that her “[n]ext appointment it scheduled for March 29th.” (Id.) Zweifel reportedly interpreted this letter as indicating that Wilson was returning to work in mid-March and Wilson's note as just informing her of a doctor's appointment on March 29, so that she could take that time off. Given that Watring's letter expressly stated that her “work status” would be reevaluated at her next doctor's appointment, which Wilson had noted was not until March 29, Wilson disputes that Zweifel's interpretation was reasonable. Regardless, there is no dispute that neither Mathys nor Zweifel contacted Wilson to discuss her return to work.

         C. January 2016 FMLA Leave Designation Notice

         Sometime in January, Greenco revised its employee handbook with the assistance of a VP of Human Resources for Colony Brands.[6] As part of that process, Greenco's FMLA leave policy was discussed. The Colony VP provided Mathys with a form letter and an FMLA designation notice, instructing Mathys to send each of these documents to all persons who take FMLA leave to ensure that these employees were aware of the length of FMLA leave.

         As part of this same process, Mathys and the Colony VP also determined that Wilson's FMLA leave was set to expire on March 25, 2016. Reviewing the January 15, 2016, letter from Dr. Sturm's physician assistant, Watring, Mathys noted that Wilson's next appointment to return to work was scheduled after the expiration of her FMLA leave period. Using the form letter provided by the Colony VP, Mathys then promptly sent the following letter to Wilson on January 26, 2016:

We recently received your physician's statement dated 01/15/2016 outlining that you need continued leave through your next Doctor's appointment on 3/29/2016. The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12-weeks of job-protected leave for medical reasons per calendar year. In addition, the Wisconsin Family Leave Act (WFMLA) entitles you to 2 weeks of leave for your own medical reasons per calendar year. These leaves will run concurrently and your time off will be counted under both entitlements.
After reviewing the information, you will exhaust your 2016 12-week leave entitlement under the FMLA as of 03/25/2016. You have no additional job-protected FMLA leave available this calendar year. We are unable to grant any additional leave past this date. We are expecting that you return to work on Monday, March 28, 2016. If you are unable to return to work on that date, your employment will end and your employment record will reflect that you were unable to return to work after approved leave. Should that happen and you would still like to work for Greenco ...

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