Harvot v. Solo Cup Co.

• Decision Date: 17 July 2009
• Docket Number: No. 2007AP1396.,2007AP1396.
• Parties: Kelly J. HARVOT, Plaintiff-Appellant, v. SOLO CUP COMPANY and Solo Cup Operating Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

768 N.W.2d 176

2009 WI 85

Kelly J. HARVOT, Plaintiff-Appellant, v. SOLO CUP COMPANY and Solo Cup Operating Company, Defendants-Respondents.

No. 2007AP1396.

Supreme Court of Wisconsin.

Argued January 6, 2009.

Decided July 17, 2009.

For the plaintiff-appellant there were briefs by Peter J. Culp and Dempsey, Williamson, Kelly & Hertel, LLP, Oshkosh, and oral argument by Peter J. Culp.

For the defendants-respondents there was a brief by John E. Murray, Robert J. Simandl, and Simandl & Murray, S.C., Waukesha, and oral argument by John E. Murray.

¶ 1 DAVID T. PROSSER, J

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § 809.61 (2007-08).¹ The issues presented examine whether there is a right to jury trial in a civil action to recover damages under Wisconsin's Family or Medical Leave statute, Wis. Stat. § 103.10.

¶ 2 Subsection (13) of that statute reads in part: "Civil Action. (a) An employee or the [D]epartment [of Workforce Development] may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation." Wis. Stat. § 103.10(13)(a).

¶ 3 The court of appeals certifies the following questions: (1) Does the Wisconsin Family or Medical Leave Act (WFMLA) confer an implied statutory right to a jury trial in a civil action for damages? (2) In the alternative, under the test set forth in Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis.2d 478, 647 N.W.2d 177, does the Wisconsin State Constitution confer the right to a jury trial in a WFMLA civil action for damages?

¶ 4 We conclude that the WFMLA does not confer an implied statutory right to jury trial in a civil action to recover damages for a violation of the WFMLA. We further conclude that Article I, Section 5 of the Wisconsin Constitution does not afford the right to jury trial in a civil action to recover damages for a violation of the WFMLA. Consequently, we affirm the order of the circuit court.

I. BACKGROUND AND PROCEDURAL HISTORY

¶ 5 In 1984, Kelly J. Harvot (Harvot) began working for Hoffmaster Solo Cup Co. (Hoffmaster) at its production facility in Oshkosh. The company produces disposable foodservice items such as cups, bowls, plates, napkins, and placemats. Harvot was employed as a full-time stock handler in the shipping department, driving a forklift. During her tenure, she developed a serious and painful back condition that was diagnosed as a cervical disk bulge with moderate to advanced degenerative changes in the lumbar spine.

¶ 6 Harvot's condition worsened in 2005. On January 24, she was treated by Dr. Lynda Kasper (Dr. Kasper) for back spasms and was given mild pain medication. Harvot missed three days of work, which she counted as sick leave.

¶ 7 Harvot was covered by a collective bargaining agreement between Hoffmaster and Harvot's union. Under the agreement, union employees were entitled to six days of sick leave per year. These sick days were not reduced when an employee took approved medical leave under the WFMLA. Company approval of medical leave under the WFMLA was important because unapproved medical leave amounted to an attendance violation after the six days of authorized sick leave had been exhausted. Hoffmaster's attendance policy provided for progressive discipline, up to and including discharge at the fourth attendance violation.

¶ 8 By October 2004, Harvot was subject to discharge for any further attendance violation, including unapproved medical leave.

¶ 9 In May 2005, Harvot again sought treatment from Dr. Kasper for her back condition. Dr. Kasper prescribed two pain medications and directed Harvot to a pain clinic for further treatment. Dr. Kasper retained supervision and responsibility for Harvot's treatment and medication. Because of her condition, Harvot missed work on May 3, 4, and 5. By May 3, she had only two days of sick leave remaining under the collective bargaining agreement. For her May 5 absence, Harvot submitted a medical leave request under the WFMLA. The request for leave was denied because it was filed more than 15 days after her absence, making the request untimely under company policy.

¶ 10 Nonetheless, Harvot put Hoffmaster on notice of her health condition when she filed the request for an approved leave for May 5 because she included a Health Care Provider Certification signed by Dr. Kasper. In the certification, Dr. Kasper listed the May 3-5 treatment dates and indicated that the treatment was "ongoing." Dr. Kasper also stated that Harvot's condition would require intermittent periods of absence that should be considered medically necessary.

¶ 11 On June 8, 2005, Harvot submitted a request for leave for June 22, because she was scheduled to receive an epidural injection from the pain clinic that day. For this request, she submitted another Health Care Provider Certification, signed by Dr. Kasper, which verified that her appointment for the injection was medically necessary. On June 10, Hoffmaster approved the request.

¶ 12 Harvot was absent from work again on June 11, 2005. Later in the month she requested leave for this absence by submitting another Health Care Provider Certification. Dr. Kasper signed the certification and indicated that Harvot's June 11 absence was due to her medical condition. Dr. Kasper made this representation by relying on Harvot's description of her symptoms and her previous treatment history, but Harvot did not go to Dr. Kasper's office for examination. On July 1, Hoffmaster approved the June 11 leave request.

¶ 13 Harvot was absent from work on June 22 for the epidural injection, as previously approved. She was absent on July 25, August 1, and August 2 as a result of her health condition. She also was absent on July 26 as the result of a previously scheduled vacation day. On July 25, Harvot spoke with a nurse at Dr. Kasper's office who, in turn, consulted with Dr. Kasper. Dr. Kasper ordered a refill for one of Harvot's medications, but she did not think it necessary to examine Harvot at that time. On August 1, 2005, Harvot again spoke with a nurse at Dr. Kasper's office and complained of severe lower back pain and the inability to get up or roll over in bed. Dr. Kasper, again thinking it unnecessary for a physical examination, reviewed the information and ordered a stronger pain medication for Harvot.

¶ 14 Harvot timely requested WFMLA leave for her July 25, August 1, and August 2, 2005 absences. She submitted a medical release authorization, which is a standard form Hoffmaster requires whenever leave is requested. Hoffmaster never used the authorization to contact Dr. Kasper or any of Harvot's other medical providers to obtain more information related to her absences.

¶ 15 In addition to the medical release authorization, Harvot submitted another Health Care Provider Certification on August 12 that was signed by Dr. Kasper. In the certification, Dr. Kasper noted that Harvot's last office visit was on June 13, 2005, that Harvot's work absences were taken on an emergency basis, and that Harvot's condition would require her to be absent from work for "separate blocks of time." Dr. Kasper also attempted to contact Hoffmaster in regard to Harvot's condition, but her call was never returned.

¶ 16 On August 15, 2005, upon arriving at work, Harvot was informed that her leave request for July 25, August 1, and August 2 was being denied and that she was being terminated for a fourth violation of the company's attendance policy. On August 17, Harvot received a memorandum from Hoffmaster officially informing her of its decision to deny her leave request for those three days. The memorandum indicated that the denial was based, at least in part, on the fact that Harvot had not been examined by Dr. Kasper on or around the dates she requested for leave. Harvot contacted Hoffmaster regarding the memorandum and was given the opportunity to present additional information to show that her absences were related to an ongoing medical condition. Evidence suggests, however, that Hoffmaster was not completely forthcoming in advising Harvot what deficiencies in her request materials it wanted her to correct.

¶ 17 Harvot quickly submitted copies of her medical records and a letter from her treating physician at the pain management clinic. Hoffmaster refused to accept this information because it did not indicate that Harvot went to see a doctor on or around the days she was absent. As a result, Harvot was terminated from her employment.

¶ 18 On September 1, 2005, Harvot filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development (the DWD). The complaint alleged that Hoffmaster violated the WFMLA by denying Harvot's leave request for her July 25, August 1, and August 2 absences. A hearing was held on December 20, 2005, and was continued on February 27, 2006, before Administrative Law Judge Larry R. Jakubowski. On November 3, 2006, Judge Jakubowski issued his decision and made the following conclusions of law:

[Hoffmaster] discriminated against [Harvot] by interfering with, restraining, or denying her the exercise of a right provided under the [WFMLA] by denying her Medical Leave for the absences on July 25, August 1, and August 2, 2005[,] and by assessing her penalties under the attendance policy and by terminating her employment under its attendance policy for the absences from work on those dates.

Harvot v. Hoffmaster Solo Cup Co., ERD No. 200503272 (DWD, Nov. 3, 2006).

¶ 19 Accordingly, Judge Jakubowski ordered that Hoffmaster complete the following tasks: (1) cease and desist from further discrimination and give training to those employees responsible for administering WFMLA requests; (2) amend its records to reflect that Harvot was on medical leave under the WFMLA on the three days at issue; (3) remove the fourth...