Schermitzler v. Swanson
| Decision Date | 12 July 2021 |
| Docket Number | Case No. 20-C-236 |
| Parties | SCOTT SCHERMITZLER, Plaintiff, v. ALLISON SWANSON and VILLAGE OF ASHWAUBENON, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Plaintiff Scott Schermitzler filed this action against his former employer, the Village of Ashwaubenon, and Allison Swanson (now Buckley), the former Village Manager, alleging claims under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601, et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., 42 U.S.C. § 1983, Wisconsin Wage Payment and Collections statutes (WWPC), Wis. Stat. § 109.01, et seq., as well as a state common law claim of defamation and slander. The Court has jurisdiction of Plaintiff's federal claims under 28 U.S.C. § 1331 and his state law claims under 28 U.S.C. § 1367. The case is before the Court on Plaintiff's motion for partial summary judgment on his FMLA interference and ADA claims and Defendants' motion for summary judgment on all claims. For the reasons that follow, both motions will be partially granted.
Plaintiff was employed by the Village of Ashwaubenon as a Public Safety Officer (PSO) for more than 26 years, until he was terminated on April 25, 2019. Plaintiff's Proposed Material Facts (PPMF) ¶ 3, Dkt. No. 22. Unlike most municipalities, the Village of Ashwaubenon has combined its police and firefighter agencies into a single Public Safety Department with PSOs performing both functions. Most PSOs work a "firefighter-type" work schedule, consisting of a 24-hour shift on and two 24-hour shifts off, rotating throughout the year. For the first eight hours of the shift, the PSOs perform traditional police functions. They spend the remaining 16 hours waiting for fire or paramedic/EMT calls for service. As a PSO, Schermitzler was required to act, at various times, as a paramedic, firefighter, and police officer and was often the first to respond to accidents, emergencies, and other incidents. Id. ¶¶ 4-5; see also Job Description, Dkt. 46-8 at 68. At all times relevant to the event out of which the case arises, Swanson served as Village Manager.
Schermitzler claims that due to the extreme demands of his work experienced over many years, he began to suffer mentally, emotionally, and physically in 2018. He experienced a host of symptoms including sleeplessness, irritability, anxiety, hopelessness, depression, and others. In the early fall of 2018, Schermitzler spoke with Swanson about the possibility of taking early retirement. Swanson told Schermitzler that he was not eligible for early retirement under the Wisconsin Retirement System because he was not yet 50 years old. Defendants' Proposed Findings of Fact (DPFOF) ¶ 15. On Friday, September 28, 2018, Schermitzler spoke to his primary care physician, Dr. R. L. Meves, regarding his condition. Dr. Meves expressed grave concern and recommended that Schermitzler take an immediate leave of absence from his job and promptly undergo treatment. PPMF ¶¶ 6-7.
Notwithstanding Dr. Meves' recommendation, Schermitzler worked his scheduled 24-hour shift from Sunday, September 30, 2018, at 7:00 a.m. until Monday, October 1, 2018, at 7:00 a.m. That was the last shift he worked for the Village. After completing his shift on October 1, 2018, Schermitzler spoke with Chief Eric Dunning, who recommended that he follow his doctor's advice and take a leave of absence. Schermitzler then spoke with Terri Lewis, a confidential executive secretary who was assigned to administer the FMLA process for the Village and told her he wanted to take FMLA leave. Lewis gave Schermitzler an application for FMLA leave, a medical certification form, and the FMLA Notice of Rights letter. Schermitzler promptly delivered the medical certification to Dr. Meves' office. Id. ¶¶ 9-12.
Schermitzler delivered his completed application to Lewis on Wednesday, October 3, 2018. Id. ¶ 13. He requested 12 weeks of medical leave beginning October 3, 2018, during which he would be completely absent from work. Dkt. No. 40-7 at 2. In the space provided for any general comments pertaining to the request, Schermitzler wrote:
After 26 years of dealing with other peoples [sic] tragedies and being on the edge of chaos my body is worn. I can no longer allow the shift work and adrenaline dumps to affect my health. (Hypertension/hyperlipidemia/metabolic syndrome/diabetes/skin cancer.[)] I need time off to see if improvements can happen.
Schermitzler picked up the completed medical certification form from Dr. Meves' office on Monday, October 8, 2018, and delivered that document to Lewis the same day. PPMF at ¶¶ 12-14. Dr. Meves noted on the medical certification form that Schermitzler had a condition that commenced on March 1, 2018, or in the last six months. As for the duration of the condition, Dr. Meves wrote "indefinite—depends how he responds to treatment." Dkt. No. 40-7 at 4. Checked boxes on the pre-printed certification form indicated that Schermitzler was unable to perform any of his job functions, had not been hospitalized or prescribed medication, would need to have treatment visits at least twice per year due to the condition, and would be incapacitated for a single continuous period of time due to his medical condition, including any time for treatment and recovery. Id. In the space where he was to identify the job functions he could not perform, Dr. Meves wrote "work/change needs to occur for him to continue working." Id. Dr. Meves indicated that he had referred Schermitzler to the EAP (employee assistance program) counselor for evaluation or treatment. In a space where he was to describe other medical facts related to the condition for which leave was sought, Dr. Meves wrote: "Not sleeping, sour mood at home, can't leave work at work, takes home with him." Id. With respect to the care needed and why it was needed, Dr. Meves wrote, "Rest, diversion from work stress." Id. at 5. In the space for his estimate of the beginning and ending dates of the disability, Dr. Meves wrote, "9/29/2018 to 12/29/2018 for now." Id.
Notwithstanding the fact that Lewis normally handled FMLA applications by Village employees, Swanson took charge of Schermitzler's application. Dkt. No. 40-15 at 10-12. Later that same day, Swanson sent Schermitzler an email to which she attached a letter. In her letter, Swanson acknowledged receipt of Schermitzler's FMLA paperwork but stated she needed additional information from Dr. Meves and would be contacting him directly to obtain it. Swanson further stated in her letter to Schermitzler, "At this time your request is not approved until it is determined whether you qualify for FMLA leave." PPMF ¶ 17; see also Dkt. No. 40-7 at 8.
On October 11, 2018, Swanson sent a letter to Dr. Meves requesting additional information concerning Schermitzler's request for FMLA leave. The letter listed nine questions that Swanson asked Dr. Meves to answer concerning Schermitzler's diagnosis and the information contained in the certification Dr. Meves had completed. Dkt. 40-7 at 9. Dr. Meves wrote his responses to Swanson's questions next to each question and also completed a Return to Work Recommendations form Swanson had asked him to complete. In his response to Swanson's questions, Dr. Meves identified Schermitzler's serious medical condition as "stress reaction, anxiety, and depression." Id. In response to a request for information on "the relevant medical facts about Mr. Schermitzler's serious medical/health condition that result in his inability to work at this time," Dr. Meves wrote, "That's in his medical record." Id. When asked to elaborate on his prior statement that "work/change needs to occur for him to continue working," Dr. Meves wrote, Id. He largely left the "Attending Physician's Return to Work Recommendations Record" form blank, noting only that the return to work date changed to January 2, 2019, and that "[h]e may contact me earlier than 12/31/18, if situation worsens or improves." Id. at 10.
Schermitzler picked up both Dr. Meves' response and the Return to Work form from Dr. Meves' office on Friday, October 19, 2018, and delivered both documents to Lewis. That same day, Swanson reviewed the additional information and informed Schermitzler that the additional information was still insufficient. She followed up her conversation with Schermitzler with an email stating: Id. at 12.
On Monday, October 22, 2018, Dr. Meves called Swanson. DPFOF ¶ 28. According to Swanson, the "phone call was heated and Dr. Meves was combative." Id. During the discussion, Dr. Meves told Swanson that Schermitzler could "pick and choose" what he could do. Swanson Dep., 63:21-64:1, Dkt. No. 40-6. In response to Dr. Meves' "going on" about Schermitzler's "illustrious career," Swanson mentioned that Schermitzler was under investigation and had been previously disciplined for an OWI, and they should not just agree to whatever he said. Id. at 64:4-24. On the same day, the Village also received a letter from Carrie Schatzman, a licensed professional counselor, notifying it that Schermitzler had begun counseling with her on October 9, 2018, and had attended two sessions to date. DPFOF ¶ 29; see also Dkt. No. 40-7 at 14. The Village denied Schermitzler's FMLA request on October 24, 2018. PPMF ¶ 29. The memo denying Schermitzler's request simply said "FMLA does not apply to your request." Dkt. No. 40-7 at 16.
Over the following weeks, Schermitzler continued to engage with the Village. He wrote and delivered a letter on October 25, 2018, requesting an explanation as to why Dr. Meves' opinions were not sufficient, and delivered another letter...
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