Arrigo v. Link Stop, Inc.

• Decision Date: 04 October 2013
• Docket Number: No. 12–cv–700–bbc.,12–cv–700–bbc.
• Citation: 975 F.Supp.2d 976
• Parties: Marylee ARRIGO, Plaintiff, v. LINK STOP, INC., Jay E. Link, Ashland Lake Superior Lodge, LLC, Grandma Link's Restaurant and Lounge, LLC and Gordon Pines Golf Course d/b/a Link International Investments, LLC, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

975 F.Supp.2d 976

Marylee ARRIGO, Plaintiff,

v.LINK STOP, INC., Jay E. Link, Ashland Lake Superior Lodge, LLC, Grandma Link's Restaurant and Lounge, LLC and Gordon Pines Golf Course d/b/a Link International Investments, LLC, Defendants.¹

No. 12–cv–700–bbc.

United States District Court, W.D. Wisconsin.

Oct. 4, 2013.

Bonnie Marie Smith, James Kaster, David Einer Schlesinger, Nichols Kaster, PLLP, Minneapolis, MN, for Plaintiff.

Daniel A. Kaplan, Krista J. Sterken, Foley & Lardner LLP, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

The Family and Medical Leave Act gives an employee the right to take 12 weeks of unpaid leave over the course of a year for certain medical reasons. 29 U.S.C. § 2612. In this case, plaintiff Marylee Arrigo contends that defendants Link Stop, Inc., Jay E. Link, Ashland Lake Superior Lodge, LLC, Grandma Link's Restaurant and Lounge, LLC and Gordon Pines Golf Course collectively qualify as her employer under the FMLA and violated her FMLA rights in various ways. In particular, she alleges that defendants delayed her return to work after she took medical leave in September 2010, changed her job after she returned, refused a second request to take leave, disciplined her and then fired her in January 2011.

Four motions are before the court: (1) plaintiff's motion for partial summary judgment, dkt. # 63; (2) defendants' motion for summary judgment, dkt. # 53; (3) defendants' motion for leave to file an amended answer to add a “good faith” defense, dkt. # 107; and (4) defendants' unopposed motion for leave to file a reply brief in support of their motion for leave to file an amended answer. Dkt. # 122.

Plaintiff seeks summary judgment on the issue whether defendants had a sufficient number of employees to qualify as an “employer” under the FMLA during the time relevant to her claims. I am granting this motion because it is undisputed that defendants qualified as an employer after November 2010 and I agree with plaintiff that, under the plain language of the FMLA, defendants may be sued for violations that occurred any time in 2010 or 2011. I am denying defendants' motion for summary judgment because they have not met their burden under Fed.R.Civ.P. 56 to show that they are entitled to judgment as a matter of law on any of plaintiff's claims. Finally, I am granting defendants' motion for leave to file a reply brief because it is unopposed and granting their motion for leave to file an amended answer because I see no unfair prejudice to plaintiff in allowing defendants to assert a good faith defense.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

A. The Parties

At all times relevant to this case, defendant Jay Link owned four businesses in northwest Wisconsin: defendants Link Stop, Inc., Ashland Lake Superior Lodge, LLC, Grandma Link's Restaurant and Lodge, LLC and Gordon Pines Golf Course. In March 1999 plaintiff Marylee Arrigo began working for defendant Link Stop at a location that was a combination of a convenience store, a gas station and a restaurant. After leaving in 2002 to attend school, plaintiff returned in 2003. In 2004, she became the bookkeeper for Link Stop and then the general manager. By 2010 plaintiff was doing bookkeeping for defendants Link Stop, Grandma Link's Restaurant, Gordon Pines Golf Course and Ashland Lake Superior Lodge.

B. Plaintiff's First Request for Medical Leave and Return to Work

On September 10, 2010 plaintiff was hospitalized after she suffered from a severe panic attack that included symptoms such as vomiting, difficulty breathing and uncontrollable crying. Her doctor diagnosed generalized anxiety disorder, prescribed medication and directed her to remain on medical leave for two weeks. Plaintiff requested leave, which defendant Jay Link approved. Plaintiff was paid during her leave.

On September 27, 2010, plaintiff received a release from her doctor to return to work without restrictions. Plt.'s Dep., dkt. # 39, at 229. Plaintiff informed Link's assistant, Lydia Cook, that she had a doctor's release to return to work. Cook told plaintiff that she should talk to Link first because he wanted to “analyze” her before she returned to work. When plaintiff asked Cook whether Link thought that plaintiff “went nuts,” Cook stated, “That's pretty much what [Link] heard.” Plt.'s Dep., dkt. # 39, at 230.

Plaintiff called Link, who was on a hunting trip at the time. He prohibited plaintiff from returning to work until he came back from his trip in two weeks. Link believed that it was his decision as plaintiff's employer whether to “bring her back and under what terms” because “it was [his] money.” Link Dep., dkt. # 51, at 281–83 Because plaintiff “had an anxiety break up or attack,” he did not believe that it was “unreasonable at all” to want to “sit down and talk with her face to face” before she returned to work. Link Dep., dkt. # 51, at 255. He “wanted to make sure she was of sound mind, that she wasn't going to make a mistake, or if she was going to make a mistake, [he] could have somebody there overseeing her so we could catch it.” Id. (The parties dispute whether Link said that plaintiff was “in no condition to discuss money” when she asked whether she would be paid for the additional leave time.)

On October 8, 2010, Link had a meeting with plaintiff to determine whether she could return to work. Plaintiff told Link that she had been suffering from anxiety for one year; she was taking two medications for anxiety as well as a sleeping aid; her medication was working; she would be going to therapy every three weeks or as needed; and she felt fine now. She repeated that her doctor had released her to work.

At the end of the meeting, Link decided that plaintiff could return to work on October 11. However, he was relocating her office from Grandma Link's to Bond Lake, where his own office was. (The parties dispute what Link told plaintiff about the reasons for the move. Defendants say that Link told her that the move would “allow her to focus more directly on her bookkeeping duties without the distractions that existed at the Link Stop” and would give her “direct access” to Link. Link Decl. ¶ 45, dkt. # 56. Plaintiff says that he told her he wanted to “keep an eye on” her. Plt.'s Dep., dkt. # 39, at 260.)

Plaintiff raised concerns about the move because “employees would not have access to” her, Plt.'s Decl. ¶ 15, dkt. # 96, but Link told her that he wanted her to “start focusing more on the accounting and not so much on the management.” Plt.'s Dep., dkt. # 39, at 263. In addition, Link told plaintiff that he wanted her on a more “set schedule.” (The parties dispute whether Link told plaintiff she could no longer work on weekends or past 6 p.m. on weekdays. They also dispute whether Link discussed concerns he had about her past performance.)

On October 11, 2010, plaintiff returned to work. She had the same salary and job title, but she no longer served as the general manager for Link Stop. After she returned, Link stopped greeting plaintiff and her assistant when they came into work. He often did not look up at them when they spoke to him

In November 2010 during an IRS audit, Link told plaintiff not to participate and not to tell the auditor that she was defendants' bookkeeper.

C. Plaintiff's Second Request for Medical Leave and Return to Work

On November 22, 2010, plaintiff discovered that she was pregnant. Her doctor directed her to stop taking anxiety medication. On November 25, 2010 (Thanksgiving Day), plaintiff experienced withdrawal symptoms and had to be taken to the hospital. On Monday, November 29, plaintiff called Link to tell him that she had withdrawal symptoms and had been ordered by her doctor to remain home until December 1, 2010. (The parties dispute whether plaintiff told Link that she was pregnant and whether Link told plaintiff that he did not care whether she was sick and that she had to return to work because she had missed too much work already. The parties also dispute whether plaintiff tried to talk to Link on two more occasions in December and January about her pregnancy and maternity leave, but he ignored her.) On November 30, 2010, plaintiff returned to work.

D. Plaintiff's Discipline and Termination

In a letter to plaintiff dated December 7, 2010 titled “Warning,” Link wrote the following:

This letter serves to warn you that unless your work performance improves to an acceptable level, further corrective action will be taken. You have consistently been unable to meet the daily, weekly and monthly requests for me. I urge you to make immediate improvements in your lack of communication and substandard work.

To be realistic, I estimate that such improvement will take no time at all to become visible. Given your excellent performance record in the past, there is no reason to assume anything but success.

During the meeting at which Link presented the letter to plaintiff, he told her that a reason for the warning was her failure to prepare financial reports on time. Link believes that plaintiff's leave was “a factor” in the late reports. Trans., dkt. # 44, at 382. (The parties dispute whether Link told plaintiff that she needed to cut down on smoke breaks.)

Link scheduled a meeting for December 15, 2010 to discuss whether Grandma Link's should be closed for part of the winter. (Plaintiff attempts to dispute this fact with her own testimony that Link already had made the decision at another meeting to close the restaurant. However, the testimony she cites shows that she does not have personal knowledge of the content of the other alleged meeting. Plt.'s Dep., dkt. # 39, at 206–07.) Although plaintiff had notice of the meeting and was permitted to attend, she did not do so. Ultimately, it was Link's decision whether to close the restaurant.

By mid-December 2010, plaintiff had caught up on the “majority” of her work. Dkt. #...