Morton v. Sheboygan Memorial Hospital, 77-C-14.

• Citation: 458 F. Supp. 804
• Decision Date: 23 October 1978
• Docket Number: No. 77-C-14.,77-C-14.
• Parties: Raphaella C. MORTON, Plaintiff, v. SHEBOYGAN MEMORIAL HOSPITAL, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

458 F. Supp. 804

Raphaella C. MORTON, Plaintiff, v. SHEBOYGAN MEMORIAL HOSPITAL, Defendant.

No. 77-C-14.

United States District Court, E. D. Wisconsin.

October 23, 1978.

Robert E. Gratz, Goldberg, Previant & Uelmen, Milwaukee, Wis., for plaintiff.

Carolyn C. Burrell, Foley & Lardner, Milwaukee, Wis., for defendant.

MEMORANDUM AND ORDER

WARREN, District Judge.

The plaintiff, Raphaella C. Morton, commenced this action in the United States District Court for the Eastern District of Wisconsin, alleging that she was terminated from her employment with defendant, Sheboygan Memorial Hospital, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621. The defendant has filed a motion for summary judgment, or in the alternative, for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Summary judgment is only appropriate when the pleadings, affidavits, depositions and other documents filed in the case show 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. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).

The ADEA requires that the complainant prove the employer discharged him or her because of such individual's age. Section 623(a) of 29 U.S.C. provides:

It shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

The undisputed facts are as follows. Plaintiff was hired by defendant on February 26, 1971 as a medical records clerk. On March 3, 1976, to permit time for recuperation from a planned surgical operation, plaintiff filed a request for leave of absence from April 2, 1976 to April 26, 1976 in conjunction with a scheduled vacation from March 10, 1976 to April 1, 1976. Thus her last day of work before the operation was March 9, 1976. On May 4, 1976, the plaintiff completed a form requesting an extension of her leave from April 26, 1976 to May 17, 1976. At this time, plaintiff's supervisor also approved a vacation from May 17, 1976 to June 4, 1976 for the plaintiff. The following statement was contained in both of the request forms signed by plaintiff and granted by the defendant.

An employee who returns following a leave of absence retains his seniority and fringe benefits and will return to his previous position provided that:

a) The position still exists.

b) The position remains open.

c) The employee is capable of returning to the position.

If it is not possible to restore the employee to his previous position, every effort will be made to place him in a position which is comparable.

On March 23, 1976, Cynthia Gries, who was also employed by defendant, was transferred to the Medical Records Department to fill the position previously held by the plaintiff. On May 21, 1976, plaintiff was notified by letter that her employment with the defendant had been terminated based on defendant's leave of absence policy.

Plaintiff alleges that the defendant discriminated against her on the basis of her age. She asserts that: 1) she was discharged; 2) at the time of her discharge, she was in the group protected by law (ages 40-65); 3) that she was replaced by a younger person; and 4) she was a satisfactory and qualified employee.

It is undisputed that plaintiff was 43 years old at the time of her discharge and that she was replaced by a 20 year old woman. There is, however, disagreement on the material issues of good cause and nondiscriminatory discharge.

On the issue of good cause, plaintiff stated in her deposition that her supervisor, Marge Huibregtse, informed her that she was doing a good job. Defendant disagreed and stated in a deposition that it was never their intention to reemploy the plaintiff in her original position because of the quality of her work which resulted in patient complaints.

In furtherance of its argument that the reason for discharge was nondiscriminatory, defendant alleges that the discharge was in conformity with its leave of absence policy. In supporting this argument, defendant states that plaintiff was offered another job with the defendant on March 1, 1977 and rehired on June 13, 1977. Plaintiff asserts that in the period following her discharge and the time she was rehired (May 18, 1976 to June of 1977), a great number of clerical employees were hired into positions for which she was fully qualified. Plaintiff believes this is in direct conflict with the defendant's leave of absence policy.

In addition, in support of her position that the defendant's actions were discriminatory, plaintiff argues that she was terminated on May 18, 1976, which the record clearly shows occurred during her approved vacation time. The record shows that plaintiff's vacation began May 17, 1976 and ended on June 4, 1976. Plaintiff contends that the defendant's leave of absence policy is not applicable to approved vacation time earned by the employee. "The basis of approved leave of absence is illness, maternity absence, education related to one's profession or other justified personal reasons not covered by vacation, sick leave, or time off."

In defendant's reply brief, it is argued that, although plaintiff was terminated one day after her leave of absence expired, it was during the period when she was not yet released by her doctor to return to work. The discharge was effective May 18, 1976 and she was not permitted by her doctor...