Gibson v. Milwaukee Cnty.

• Decision Date: 05 March 2015
• Docket Number: Case No. 12–C–657.
• Citation: 95 F.Supp.3d 1061,31 A.D. Cases 915
• Parties: James R. GIBSON and Tamara Rohr, Plaintiffs, v. MILWAUKEE COUNTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

95 F.Supp.3d 1061

31 A.D. Cases 915

James R. GIBSON and Tamara Rohr, Plaintiffs

v.MILWAUKEE COUNTY, et al., Defendants.

Case No. 12–C–657.

United States District Court, E.D. Wisconsin.

Signed March 5, 2015.

M. Nicol Padway, Aaron A. Dekosky, Padway & Padway, Milwaukee, WI, for Plaintiffs.

James M. Carroll, Kristofor L. Hanson, Lindner & Marsack SC, Oyvind Wistrom, Roy L. Williams, Milwaukee, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

In this case, two corrections officers formerly employed by the Milwaukee County Sheriff's Department allege violations of the Americans With Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). The defendants are Milwaukee County, the Milwaukee County Sheriff's Department, and Sheriff David A. Clarke, Jr., who is sued in his official capacity. Before me now is the defendants' motion for summary judgment.

I. BACKGROUND

At the times relevant to this suit, both plaintiffs, James Gibson and Tamara Rohr, suffered from conditions that required them to take significant amounts of leave from their employment as corrections officers with the Milwaukee County Sheriff's Department. The plaintiffs allege that when they returned from leave and asked the Sheriff's Department to accommodate certain work restrictions imposed by their doctors, it refused to do so. Instead, the Department required the plaintiffs to take additional leave until they could return to work with no restrictions. Each plaintiff alleges that the Department's actions amounted to a denial of a reasonable accommodation under the ADA. The plaintiffs also allege that the Sheriff's Department retaliated against them for exercising their rights under the Family and Medical Leave Act.

A. Facts Relating to James Gibson

Gibson began working for the Sheriff's Department as a corrections officer in 2008. On July 24, 2011, Gibson was appointed to the rank of Corrections Lieutenant through a procedure known as Temporary Appointment to a Higher Classification, or “TAHC.” This procedure is based on a Milwaukee County ordinance that allows employees to be temporarily appointed to vacant positions. See Milwaukee County Ord. § 17.085. The temporary appointment lasts for an initial 90–day period and may be extended for an additional 90–day period. Id. Appointments lasting longer than 180 days must be approved by the County Board. On October 19, 2011, Gibson's appointment to Corrections Lieutenant was extended for a second 90–day period, thus exhausting the time he could be appointed to that position without approval from the County Board.

On November 15, 2011, Gibson began to experience severe migraine headaches. He sought medical care the next day, and on the advice of his physician he decided to take leave from work under the Family and Medical Leave Act until January 1, 2012. On December 29, 2011, Gibson informed the Sheriff's Department that he would return to work on January 2, 2012, but with a restriction that prevented him from working more than eight hours per day. After receiving this notice, the Department scheduled Gibson to work on January 5, 2012. Gibson reported to work that day and for the next several days. However, on January 9, 2012, Gibson was informed that he was required to attend a meeting the next day that would require him to work more than eight hours in one day. It turned out that when the Department restored Gibson to work following his leave, it overlooked his eight-hour restriction. When Gibson called the restriction to the Department's attention on January 9th, the Department informed him that he would not be allowed to return to work until his eight-hour restriction was lifted. Gibson then took additional FMLA leave from January 10, 2012 to February 16, 2012. While he was on leave, Gibson's TAHC appointment to Lieutenant was renewed for a second time, even though the County Board had not approved the extension of his appointment beyond 180 days.

On February 17, 2012, Gibson returned to work without any restrictions and worked without incident until March 7, 2012. On that day, Gibson fell down a flight of stairs due to dizziness and lack of balance caused by his migraine headaches. The following day, Gibson's doctor reinstated his eight-hour work restriction. Once again, the Sheriff's Department refused to allow Gibson to work with this restriction in place, and thus Gibson was required to take additional FMLA leave.

On March 30, 2012, Gibson informed the Department that he would be returning to work with no restrictions on April 13, 2012. The Department scheduled him to work on April 14, 2012, and Gibson returned to work that day. On April 18, 2012, Gibson's TAHC appointment to lieutenant was renewed for a third time. However, on that same day, Gibson's supervisor informed him that it was documenting that Gibson had three unexcused absences during November 2011 and March 2012. Gibson then spoke to various supervisors and informed them that the supposedly unexcused absences were days when he was on FMLA leave. A few hours after Gibson spoke to his supervisors, he was informed that his TAHC appointment to Lieutenant was being rescinded. Gibson received formal notice of this action on April 20, 2012.

After his TAHC was rescinded, Gibson continued to work as a corrections officer. Gibson contends that at this point he began to receive assignments that required less skill than the assignments he had received before he was temporarily appointed to lieutenant. On November 9, 2012, the Department transferred Gibson from his assignment at a correctional facility located in downtown Milwaukee to a correctional facility in Franklin, which is located in the southern part of Milwaukee County. (Following the parties' usage, I will refer to the jail located in Franklin as the “South facility”). Gibson contends that corrections officers widely regarded a transfer to the South facility as a form of punishment or as a demotion.

In January 2013, Gibson accepted a security position with a private company and left his employment with the Sheriff's Department.

B. Facts Relating to Tamara Rohr

Rohr began working for the Sheriff's Department as a corrections officer in 2008. That same year, she began experiencing symptoms associated with an autoimmune disorder

. Her symptoms required her to take FMLA leave at various times throughout her employment with the Department.

In early January of 2012, Rohr had to take FMLA leave to recover from surgery. The Sheriff's Department initially refused to credit Rohr with FMLA leave for this time and documented her time off as a series of unexcused absences. This prompted Rohr to file a claim with the Wisconsin Department of Workforce Development. On April 18, 2012, the Sheriff's Department reversed its decision to treat the absences as unexcused and credited Rohr with FMLA leave for the January period.

Corrections officers in the Milwaukee County Sheriff's Department perform a wide variety of tasks, and the Department requires all officers to be able to perform any given task at any given time, as may be needed. However, for about a one-year period before Rohr complained about the Department's denial of her request for FMLA leave, Rohr was assigned primarily to posts that did not require frequent interaction with inmates, such as jail records, pre-booking, and release. On April 20, 2012, two days after the Department reversed its denial of Rohr's request for FMLA leave, Rohr was assigned to a work in a housing unit—a post that required frequent contact with inmates—for sixty days. The parties agree that many corrections officers dislike working in housing units. (See Def. Proposed Findings of Fact (“PFOF”) ¶ 89.)

On May 1, 2012, Rohr provided the Sheriff's Department with a note from her doctor indicating that she was on medication that affected her immune system and that she should avoid contact with new inmates who could possibly be sick. Rohr's assignment to the housing unit did not satisfy this restriction. On May 3, 2012, Rohr reported to work but was advised that, given her restriction, she would not be allowed to work.

At this point, Rohr requested to be assigned to a post, such as jail records, that did not require frequent contact with inmates. The Sheriff's Department interpreted this request as a request for “light duty.” However, pursuant to the Department's written light-duty policy, only employees who were recovering from temporary workplace injuries and employees who were pregnant could be placed on light duty. Employees such as Rohr, whose work restrictions stemmed from non-workplace injuries and conditions, were ineligible for light duty. Thus, the Sheriff's Department refused to modify Rohr's assignment to a housing unit and required her to take additional FMLA leave. Rohr took such leave from May 4 through May 10 of 2012.

On May 10, Rohr provided the Sheriff's Department with a note from her doctor that the Department interpreted as lifting her work restriction. On May 11, Rohr returned to work and was assigned to floor control, which is a post that involved minimal contact with inmates. However, on May 12, Rohr was again assigned to a housing unit, and when she informed her supervisor that she could not work that post with her restriction, her supervisor told her to contact human resources and sent her home. On May 14, Rohr returned to work and was originally assigned to work in a housing unit. But when she reminded her supervisor about her restriction, he decided to reassign her to floor control. On May 18, Rohr was assigned to jail records, which was a post that she could perform with her restriction.

On May 22, 2012, Rohr's doctor advised the Sheriff's Department that Rohr could have contact with new inmates, but that such contact should be limited. This clarification of Rohr's restriction was designed to make the Department aware that Rohr could respond to emergency situations requiring contact with inmates. Thus, if Rohr was assigned to jail records,...