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Peters v. Dielectric Corp.

United States District Court, E.D. Wisconsin

October 17, 2019

KIM M. PETERS, Plaintiff,
v.
DIELECTRIC CORPORATION, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Kim M. Peters sues her former employer, Dielectric Corporation, under the Americans with Disabilities Act Amendments Act of 2008 (“ADA”), 42 U.S.C. §12101 et seq. and the Family & Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Peters alleges that Dielectric discriminated against her based on disability and unlawfully interfered with her use of FMLA leave. Dielectric moves for summary judgment as to both claims, arguing that Peters was not a “qualified individual” under the ADA because she was unable to perform the essential functions of her job with or without accommodations. Dielectric further argues that Peters' FMLA claim is time-barred, or alternatively, that she was not entitled to FMLA leave because she was unable to perform the essential functions of her job. For the reasons explained below, Dielectric's motion for summary judgment is granted.

         FACTS

         Dielectric is a custom fabrication company located in Menomonee Falls, Wisconsin. It manufactures and fabricates plastic and non-ferrous metals for the medical, food processing, and manufacturing industries, and also provides prototyping, component assembly, packaging, and inventory management. In February 2016, it employed approximately ninety employees at its plant in Menomonee Falls, fifty-six of whom worked full-time in the manufacturing operation. (Defendant's Proposed Findings of Fact (“DPFOF”) ¶ 1, Docket # 17 and Plaintiff's Resp. to DPFOF (“Pl.'s Resp.”) ¶ 1, Docket # 29.) Todd Zimdars is Dielectric's Chief Financial Officer, responsible for the management and oversight of the organization's financial operations. (Id. ¶ 2.) Peters began working for Dielectric on August 2, 1993 and continued to work for Dielectric through February 22, 2016, when her employment was terminated. (Id. ¶ 3.)

         Throughout most of her employment and continuing through February 15, 2016, Peters worked as an assembler in the Special Products Department, where she glued, buffed, polished, deburred, sanded, assembled, and packaged parts using a buffing machine and various hand tools, which required the repetitive use of both hands. (Id. ¶ 4.) On November 23, 2010, Peters claimed to have injured her back and neck while performing her duties at Dielectric. (Id. ¶ 5.) From on or about August 15, 2011 through June 27, 2013, Peters presented Dielectric with various work restrictions from her doctor in connection with her alleged work-related back and neck injuries. Those restrictions limited her to lifting no more than twenty pounds and working no more than thirty hours/week. (Id. ¶ 6.)

         On August 14, 2012, Peters retained an attorney to represent her in connection with her claim for worker's compensation benefits. (Id. ¶ 19.) Dielectric's worker's compensation insurer retained Attorney Mark Miller to represent Dielectric in connection with Peters' worker's compensation claim. (Id. ¶ 20.) Peters treated with Dr. Edward Reshel for the back and neck injuries she suffered in connection with her claim for worker's compensation benefits. (Id. ¶ 21.)

         In July 2013, Peters requested intermittent leave under the FMLA, submitting a July 23, 2013 medical certification from her chiropractor, Dr. Gehrung, in support of her request, which limited her to thirty hours of work per week. Dielectric granted her request. (Id. ¶ 7.) In January 2014, Peters again requested intermittent leave under the FMLA, submitting a January 17, 2014 medical certification from Dr. Gehrung in support of her request, which limited her to thirty hours of work per week. Dielectric granted her request. (Id. ¶ 8.) In February 2015, Peters again requested intermittent leave under the FMLA, submitting a February 25, 2015 medical certification from her doctor, James Buck, M.D., in support of her request, which limited her work to six hours per day (thirty hours per week). Dielectric granted her request. (Id. ¶ 9.)

         On July 17, 2015, Peters' worker's compensation attorney filed a Practitioner's Report on Accident or Industrial Disease in Lieu of Testimony certified by Dr. Reshel on or about June 14, 2015, and a Physical Capacities Evaluation Form completed by Dr. Reshel on June 15, 2015. (Id. ¶ 22.) On August 14, 2015, Peters underwent a vocational assessment conducted by vocational experts Timothy J. Riley and Karrie Grady in connection with her claim for worker's compensation benefits. During the meeting, Peters explained what the duties of her job in the Special Products Department required. (Id. ¶ 24.) On September 25, 2015, in support of Peters' claim for worker's compensation benefits, her worker's compensation attorney filed a September 24, 2015 Vocational Expert and Vocational Assessment Report completed by Riley and Grady. (Id. ¶ 25.) The restrictions and limitations indicated in Dr. Reshel's June 2015 Physical Capacities Evaluation Form were permanent and in effect at all times from June 15, 2015 through at least February 23, 2019. (Id. ¶ 26.)

         From July 2013 through February 15, 2016, Peters worked in her position in the Special Products Department on intermittent leave under the FMLA, subject to the twenty-pound lifting and thirty-hour/week restrictions provided in the various medical certifications she presented to Dielectric. (Id. ¶ 10.) Peters used intermittent leave under the FMLA to work part-time in her position at Dielectric for three and a half years, from July 2012 through mid-February 2016. (Id. ¶ 11.)

         In early February 2016, Dielectric began having issues meeting production demands for one of its major customers. (Id. ¶ 12.) As a result, Dielectric informed all of the employees in the Special Products Department (including Peters) that, effective February 15, 2016, all employees in the department would be scheduled to work eight-hour shifts, five days per week, and may be required to work mandatory overtime. (Id. ¶ 13.) When the decision was made to eliminate part-time work in the Special Products Department, Zimdars and Dielectric's Chief Operating Officer, Perry Pabich, knew that Peters was working thirty hours a week, using FMLA to cover her time off, and working subject to a twenty-pound lifting restriction. (Id. ¶ 14.) In order to accommodate her restrictions, they decided to transfer her to the Shipping Department, where she would be able to continue working part-time, within her lifting restriction, effective February 15, 2016. (Id.)

         On February 15, 2016, Peters began working in the Shipping Department, subject to her thirty-hour/week, twenty-pound lifting restriction. (Id. ¶ 17.) At the same time, in connection with the decision to transfer Peters to the Shipping Department, Zimdars requested and reviewed the most recent medical certification Peters submitted to support her leave, a February 25, 2015 medical certification from Dr. Buck. (Id. ¶ 15.) When Zimdars reviewed Dr. Buck's February 25, 2015 medical certification, he noted that the “duration” of Peters' thirty-hour work restriction was listed as “chronic, ” which concerned him because “chronic” did not specify any temporal duration, but rather implied that the restriction was indefinite and permanent. (Id. ¶ 16.) As a result, when Peters reported to work on February 15, 2016, Zimdars asked her to have her physician clarify the meaning of “chronic” in the February 25, 2015 medical certification. (Id.) Zimdars never followed up with Peters on his request and never told her what might happen if she did not provide the requested information. (Pl.'s Proposed Findings of Fact (“PPFOF”) ¶ 26, Docket # 27 and Def.'s Resp. to PPFOF (“Def.'s Resp.”) ¶ 26, Docket # 32.) Peters did not receive the requested medical information back from her doctor to provide before Dielectric terminated her employment. (Id.)

         The parties dispute when Dielectric learned of Peters' permanent work restrictions. Dielectric asserts that after meeting with Peters on February 15, 2016 and requesting clarification of the word “chronic” in her February 25, 2015 medical certification, Zimdars reviewed an email he had received earlier that morning from Attorney Miller updating him on Peters' claim for workers' compensation benefits. (Id. ¶ 29.) Attached to Miller's email were a number of documents, including the September 24, 2015 Vocational Assessment Report prepared by Peters' vocational experts. (Id.) Dielectric states that when Zimdars reviewed the September 24, 2015 Vocational Assessment Report, he discovered the following previously unknown representations regarding Peters' work ability: “Peters works 30 hours per week and said that she ‘can't even do 30 without pain . . . She works with her sister, who helps her with lifting/bending/carrying.'” (Id. ¶ 30.)

         Dielectric argues that the September 25, 2015 report referenced the June 17, 2015 report and Physical Capacities Evaluation Form completed by Dr. Reshel, which Zimdars had never seen. (Id. ¶ 31.) According to the vocational report, Dr. Reshel had issued Peters a number of permanent restrictions that she never presented to the company, including a restriction against using either hand or both hands to perform repetitive work-which was the essence of her job in the Special Products Department, as well as the position she was just assigned in the Shipping Department. (Id. ¶ 31.) The September 24, 2015 Vocational Assessment Report also contained the following conclusion from Peters' vocational experts about her ability to perform her job at Dielectric: “Based upon the restrictions of Dr. Reshel, it is my professional opinion that Ms. Peters' current position at Dielectric is beyond that of the above restrictions. She is performing repetitive work with her hands/upper extremities. She is frequently reaching at waist level, or below waist, handling, finger, feeling, etc. This is a benevolent employer. She is receiving significant accommodations, which she would not likely receive in the general labor market.” (Id. ¶ 32.)

         Dielectric states that on February 16, 2016, Zimdars emailed Attorney Miller, asking him to provide a copy of Dr. Reshel's June 15, 2015 report, as well as Peters' Physical Capacities Evaluation Form. (Id. ΒΆ 33.) When Zimdars reviewed Dr. Reshel's June 15, 2015 Physical Capacities Evaluation Form, he discovered that Peters had the following permanent restrictions on her ability to work: Occasional lifting up to twenty pounds, with no lifting of more than twenty pounds (Restriction II); occasional reaching at the waist and handling (Restriction IV); and no repetitive use of either or both hands ...


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