Goelzer v. Sheboygan County

• Decision Date: 12 May 2010
• Docket Number: No. 09-2283.,09-2283.
• Citation: 604 F.3d 987
• Parties: Dorothy E. GOELZER, Plaintiff-Appellant,v.SHEBOYGAN COUNTY, WISCONSIN and Adam N. Payne, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 987

Dorothy E. GOELZER, Plaintiff-Appellant,v.SHEBOYGAN COUNTY, WISCONSIN and Adam N. Payne, Defendants-Appellees.

No. 09-2283.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 6, 2009.

Decided May 12, 2010.

COPYRIGHT MATERIAL OMITTED

Anthony J. Resimius (argued), Rohde Dales, Sheboygan, WI, for Plaintiff-Appellant.

Carl K. Buesing (argued), Hopp, Neuman, Humke LLP, Sheboygan, WI, for Defendants-Appellees.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

After two decades of employment with her county government, Dorothy Goelzer was fired from her job. Her supervisor informed her of the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act (FMLA). This leave did not mark the first time Goelzer was away from work on FMLA leave, as Goelzer had taken a significant amount of authorized FMLA leave during the four preceding years to deal with her own health issues and those of her mother and husband. After she lost her job, Goelzer brought this suit and alleged that her employer had interfered with her right to reinstatement under the FMLA and had retaliated against her for taking FMLA leave. The defendants contend that her supervisor simply decided to hire another person with a larger skill set. The district court agreed with the defendants and granted summary judgment against Goelzer. We, however, conclude that Goelzer has marshaled enough evidence for this case to reach a trier of fact, including comments suggesting her supervisor's dissatisfaction with her use of FMLA leave, her positive performance reviews, and the timing of her termination. Therefore, we reverse the entry of summary judgment against her.

I. BACKGROUND

Sheboygan County, Wisconsin hired Dorothy Goelzer in 1986 to serve as a Clerk Typist in its office of the Register of Deeds. Two years later, Goelzer applied for the position of Administrative Assistant to the County Board Chairperson and received the job. Goelzer's boss worked part-time and was only present intermittently in the office.

In 1997, the County Board enacted an ordinance that created a full-time Administrative Coordinator position. The Board hired a new Administrative Coordinator the next year, and Goelzer's position was converted to that of Administrative Assistant to the County Administrative Coordinator. The Board hired Adam Payne as its Administrative Coordinator in January 1999. Goelzer became the administrative assistant to Payne, who unlike her previous boss was in the office full-time, and Goelzer also assisted the County Board Chairperson.

Payne consistently gave Goelzer good performance reviews. For the 2000 year, Payne rated Goelzer with an overall performance score of 3.8 on a scale of zero to five, and Goelzer received a merit pay increase of 1.5%. Payne commented in that year's performance evaluation that Goelzer was “rarely absent,” and he gave her a 4.0 in the “attendance” category. Payne gave her a 4.0 for attendance the following year and noted she “is rarely absent (36 hours of sick leave in 2001).” Goelzer received an overall rating of 3.72 in that evaluation and again received a merit increase.

Goelzer began to have significant health issues in 2002. She had eye surgery in July and took approximately a month of FMLA leave during her surgery and recovery. She also had multiple doctors' appointments in the months before and after her surgery. All in all, she used 312.50 hours of sick leave in 2002, the equivalent of nearly eight forty-hour weeks. Payne wrote in Goelzer's 2002 performance evaluation that, “[t]hough Dorothy has had an excellent record in the past, (36 hours of sick leave in 2001), she utilized 312 hours or 39 days of sick leave in 2002.”

Goelzer continued to have health problems in 2003. She had another eye surgery that year and took two weeks of FMLA leave as a result. She also had many doctors' appointments throughout the year. Goelzer took time off on thirty-two different days during 2003 for her health issues and used a total of 176.50 hours of leave. Payne commented on Goelzer's use of sick leave again in that year's performance evaluation, stating: “Dorothy utilized 176.50 hours or 22 days of sick leave in 2003.” He gave her an overall rating of 3.36, with a 3.5 in the attendance category. He did not award her a merit pay increase. Goelzer disagreed with some of the reasons Payne gave for not awarding her a merit increase, and she wrote Payne a memorandum detailing her position. Payne responded on February 5, 2004 in a memorandum to Goelzer that said in part:

On page 3 of 4, you have denoted goals you believe to have accomplished. As we discussed during your performance review and I have noted in your annual performance review, your perspective is different than mine.

I am very pleased that you understand the importance of having a user-friendly filing system in place. As you mentioned, you were out of the office having eye surgery in 2002 and 2003. In fact, the past two years, use of sick leave and vacation combined, you were out of the office 113 days. As the only support person in the office, this has presented challenges in the functionality and duties associated with the office.

Goelzer used 94 hours of sick leave in 2004. She received a merit increase of 1.5% after her 2004 evaluation. The next year, Goelzer's health was stable, but her mother's health was not. Goelzer took FMLA leave on nine days in 2004 for appointments related to her mother or husband, and her 2005 FMLA applications included requests for intermittent leave to care for her mother. Goelzer received a 1.25% merit increase after 2005. Goelzer stated in an affidavit that when she asked why she did not receive a higher merit pay increase, Payne responded that she had missed a lot of time at work due to appointments with her mother.

Goelzer learned in 2006 that she would need foot surgery that year. On May 10, 2006, Goelzer submitted an FMLA leave request for time away from work from September 22, 2006 to November 20, 2006 for her foot surgery and recovery. At Payne's request, Goelzer provided a medical certification for the foot surgery to Human Resources Director Michael Collard on June 1, 2006. Collard wrote directly to Goelzer's doctor five days later and asked whether Goelzer could return to light duty office work before November 19, 2006, and if so, when. Goelzer's doctor responded that she would be totally disabled and unable to work during that time period. The County eventually approved Goelzer's FMLA leave request on August 8.

On August 15, 2006, the Sheboygan County Board passed an ordinance that converted the position of County Administrative Coordinator to that of County Administrator. The Board also appointed Payne to serve as County Administrator. With this change, Payne now had the power under Wisconsin Statute § 59.18(3) to discharge Goelzer on his own, a power he did not previously have. Within the next ten days, Payne told Collard that he wanted to meet to discuss options for terminating Goelzer's employment. In preparation for the August 25, 2006 meeting, Collard prepared notes related to options, with a list that included “term outright, just need to change,” “eliminate position,” “Change T/O-reshuffle-create new position not qualified for,” “Raise expectations & evaluate,” and “Retaliation for FMLA?”.

On September 8, 2006, two weeks before Goelzer was to commence FMLA leave for her foot surgery, Payne discharged Goelzer with an effective date of November 30, 2006. (Payne placed Goelzer on paid leave until November 30, 2006 so that she would receive the FMLA leave that had been previously approved.) At the time, Goelzer had used 67 hours of leave in 2006 and was scheduled to take an additional 328 hours related to her foot surgery. Goelzer's discharge document stated:

Under Section 59.18(3) of the Wisconsin Statutes, and Section II N of the County Administrator's job description, the County Administrator has the right to appoint an administrative secretary of his own choosing. The County Administrator has decided to appoint an Administrative Assistant other than the current incumbent in that position, Dorothy Goelzer. Goelzer's employment with the County must therefore be terminated. This action is not based on any infraction committed by Goelzer, and should not be considered a disciplinary action.

Payne did not immediately replace Goelzer. Instead, he first utilized an unpaid college intern. On January 16, 2007, the County Board enacted an ordinance that eliminated Goelzer's former position and replaced it with the position of “Assistant to the Administrator.” It also increased the pay grade for the role from Grade 6 to Grade 8. Payne hired Kay Lorenz as the Assistant to the Administrator on March 19, 2007.

Goelzer filed this lawsuit in federal court alleging that the County and Payne violated the FMLA when they did not restore her to her position after her FMLA leave and instead fired her, and that they discriminated against her in violation of the FMLA when they did so. She also brought a breach of contract claim alleging that her discharge breached her contractual rights under Sheboygan County's Policies and Procedures Manual. The district court granted summary judgment in favor of the defendants on all of Goelzer's claims. Goelzer appeals, raising only the FMLA determination.

II. ANALYSIS

We review the district court's grant of summary judgment de novo, and we view all facts and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th Cir.2006). Summary judgment is only appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,...