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Simon v. Cooperative Educational Service Agency

United States District Court, W.D. Wisconsin

December 30, 2019

SARAH SIMON, Plaintiff,



         Plaintiff Sarah Simon brings this lawsuit against her former employer, Cooperative Educational Service Agency #5 (“CESA 5”), alleging violations of the Family Medical Leave Act (“FMLA”), 29 U.S.C. SSS 2601, et seq. Defendant CESA 5 moved for summary judgment (dkt. #11) and successfully demonstrated that it is entitled to summary judgment on most of plaintiff's claims. However, plaintiff has presented sufficient evidence to create a genuine dispute of material fact as to liability on one of her FMLA interference claims. This still leaves an unaddressed hurdle: even if plaintiff were to prevail on her remaining claim at trial, it is unclear to what, if any, remedy she would be entitled. Accordingly, the court has established a separate briefing schedule as to plaintiff's requested remedy or remedies.


         Defendant CESA 5 is a municipal entity that provides services to various school districts in Wisconsin. One such service is the REACH Academy, which is an alternative school for elementary students with emotional and/or behavioral disabilities who have experienced difficulties in a traditional school setting. The REACH Academy is located in the same building as the Columbia Marquette Adolescent Needs School (“COMAN”), which serves middle and high school students with similar disabilities and difficulties in traditional school settings. COMAN was established in 1988; REACH Academy was established in 2014.

         Plaintiff Sarah Simon was first hired by CESA 5 in July of 2014 to help open and teach at the REACH Academy. Under her initial contract, Simon served as an alternative education teacher for the 2014-2015 school year. Her contract was renewed for the 2015-2016 school year and again the next year. During the 2016-2017 school year, Simon's job title was “Alternative Program Lead Teacher for REACH, ” for which she was paid an annual salary of $48, 554.35. During her tenure at REACH, Simon received no complaints about her performance.

         On October 17, 2016, Simon was involved in an incident with N.D., a REACH student. While in class, N.D. had been acting inappropriately and was asked to move into the hallway. In the hallway, N.D.'s behavior escalated. Simon and another employee restrained N.D. by holding him by each arm. They then attempted to walk him towards another classroom. As they were walking, N.D. reached down and grabbed Simon's groin, causing her to let go of N.D, who then dropped to the floor and kicked his legs out into a steel door that slammed against Simon's head.

         Shortly after the incident, Simon went to the emergency room and was diagnosed with a concussion. The next day, Simon was unable to return to work and emailed a report of the incident to Michele Baillies, the CESA 5 grants specialist and workers' compensation administrator. In the email, Simon recounted the incident with N.D., informing Baillies of her concussion diagnosis as follows: “I have a terrible headache which has moved to the back of my hea[d], typical for concussions. I also am still very dizzy today.” (Simon Decl., Ex. A (dkt. #21-1).) That same day, Baillies informed Mike Koltes -- the CESA 5 director of business services -- that Simon had suffered a concussion. The following day, October 19, Simon provided CESA 5 with a note from her doctor that stated: “Patient unable to work due to an injury suffered on 10/17/16.” (Stadler Decl., Ex. E (dkt. #15-5).) CESA 5 then placed Simon on workers' compensation leave, for which she would receive workers' compensation payments through November 22, 2016.

         At that point, Simon did not request FMLA leave or otherwise discuss FMLA leave with anyone at CESA 5, nor did CESA 5 designate Simon's absence as FMLA leave. Instead, about two weeks later, Simon's doctor wrote a note indicating that Simon could return to work on light duty for half-days. CESA 5 accommodated these limitations, enabling Simon to return to work on November 4, 2016, to perform light duty, sedentary tasks at the CESA 5 offices. On November 21, CESA 5 moved Simon to Rusch Elementary School in the Portage School District for continued light duty work as a special education teacher. One day after this placement, Simon's doctor cleared her to resume “a full work schedule with no restrictions, ” effective November 24. Simon's placement at the Portage School District, however, remained unchanged.

         Koltes stated that CESA 5 placed Simon in the Portage School District as “a transition for Simon to get back to work from worker's compensation leave with students that did not have as severe of behavioral issues as the students served at REACH.” (Koltes Decl. (dkt. #16) ¶ 40.) Simon disputes this, arguing that she was placed at Portage out of retaliation for her taking leave.

         On December 8, 2016, Simon met with Koltes and Rebecca Johnson -- the CESA 5 director of special education. During this meeting, Simon “begged” to be returned to REACH Academy. Instead, Johnson informed Simon that her placement in the Portage School District would continue for the remainder of the 2016-2017 school year. Again, the parties dispute the reason for Simon's continued placement at Portage. Koltes said that he “took part in the decision to return Simon to the Portage School District assignment and one factor in that decision was a desire to bring Simon back into a less chaotic environment.” (Koltes Decl. (dkt. #16) ¶ 40.) Koltes further stated that he was “concerned about Simon getting another concussion” (id.), and he concluded that “it would have been an unreasonable risk to place Simon back at REACH following her injury.” (Id. ¶ 43.) Simon contends that CESA 5's placement decision was due to retaliatory animus. For the remainder of the school year, Simon worked as a special education teacher in the Portage School District.

         The parties dispute the extent of Simon's responsibilities in her new position. Koltes claims that “[t]he teaching position at the Portage School District was very similar to the Lead Teacher position at REACH, except that Simon did not have to supervise paraprofessional employees.” (Koltes Decl. (dkt. #16) ¶ 46.) In contrast, Simon enumerated many ways in which the two positions differed. Specifically, in her deposition she testified that:

• she “no longer was able to participate in screenings, evaluations, IEP development”;
• she “had no district staff responsibility and was not allowed to . . . communicate with parents about any students”;
• at Portage, she did not “organize or facilitate program staff meetings” and was not even “allowed to be at district staff meetings” while “[a]t Reach [she] was the one that had to organize all my staff meetings for all [her] paraprofessionals”;
• “lesson planning was not something she had a role in”;
• she “was not allowed to do any assessments or testing with students in Portage”; and
• she “was not maintaining any records of enrollment, child counts or other requested records.”

(Simon Dep. (dkt. #17) 12.)

         Meanwhile, no one was hired to replace Simon at REACH Academy after her absence in October 2016. Instead, the lead teacher for COMAN -- Elizabeth Arnold --filled in and served as lead teacher for both REACH and COMAN. CESA 5 determined that this combined position was successful, and in the spring of 2017, CESA 5 officially offered Arnold a contract for the combined REACH/COMAN position. Arnold has served as lead teacher for both programs since that time. After the REACH lead teacher position was eliminated, CESA 5 notified Simon that her contract for the next year would not be renewed for the 2017-2018 school year. After completing the 2016-2017 school year as a CESA 5 employee, Simon was able to secure employment directly with the Portage School District for the following two school years at an annual salary of $49, 000.


         Plaintiff claims that CESA 5 violated the FMLA by not (1) restoring Simon to her pre-leave position as REACH lead teacher, and (2) considering her for the REACH/COMAN combined lead teacher position or renewing her contract for the 2017-2018 school year. Plaintiff also maintains these claims apply under both FMLA interference and retaliation theories. Defendant argues that plaintiff has not advanced sufficient evidence to create a genuine dispute of material fact for any of her claims. Defendant further argues that because plaintiff has no remedy under the FMLA, judgment must be entered against her.

         The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view all facts and draw all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         I. FMLA Interference

         The central provision of the FMLA guarantees eligible employees twelve weeks of leave in a one-year period for certain enumerated reasons, including due to a serious health condition that makes her unable to perform her job. 29 U.S.C. § 2612(a)(1). To prevail on an FMLA interference claim, a plaintiff must prove that: “(1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Goelzer v. Sheboygan Cty.,604 F.3d 987, 993 (7th Cir. 2010). Defendant does not dispute the existence of the first three ...

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