Torres v. Weigel Broad. Co., Case No. 09–C–1095.

• Decision Date: 13 February 2012
• Docket Number: Case No. 09–C–1095.
• Citation: 44 NDLR P 191,852 F.Supp.2d 1106
• Parties: Lisa M. TORRES, Plaintiff, v. WEIGEL BROADCASTING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

852 F.Supp.2d 1106

44 NDLR P 191

Lisa M. TORRES, Plaintiff,

v.WEIGEL BROADCASTING COMPANY, Defendant.

Case No. 09–C–1095.

United States District Court, E.D. Wisconsin.

Feb. 13, 2012.

Shannon D. McDonald, McDonald & Kloth LLC, Milwaukee, WI, for Plaintiff.

Gioconda V. Iannicelli, William Joseph Wortel, Bryan Cave LLP, Chicago, IL, for Defendant.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

PlaintiffLisa M. Torres has filed this suit under the Americans with Disabilities Act(“ADA”) against her former employer, Weigel Broadcasting Company.She claims that Weigel discriminated against her because of her alleged disability—anxietydisorder—and retaliated against her for complaining about disability discrimination.Weigel has moved for summary judgment on these claims.SeeFed.R.Civ.P. 56.

I.BACKGROUND

The following facts are stated as favorably to plaintiff as the record allows.

Weigel is a television broadcasting company that has a news station in Milwaukee.In March 2007, Weigel hired plaintiff as a part-time member of the production crew.The production crew is responsible for operating certain equipment during news broadcasts, including cameras, teleprompters, and audio equipment.Plaintiff's immediate supervisor was Bryan Hughes.

At the time she was hired, plaintiff had no previous experience on a production crew.Weigel put her on a 90–day probationary period, and during the first 60 days of this period she performed poorly.In fact, her performance was so poor that a director, Brian Sikorski, recommended that she be terminated.Because of these performance issues, Hughes decided to meet with plaintiff prior to the expiration of her probationary period.This meeting occurred on May 31, 2007.Cheryl Lenzo, Hughes's supervisor, and Christina Camps, the human-resources manager, also attended.During the meeting, Hughes informed plaintiff of a number of deficiencies in her performance, including issues relating to her handling of the camera.He also verbally reprimanded her in connection with an incident in which she had abandoned her camera during a live broadcast without informing anyone.Plaintiff explained that this incident occurred because she suddenly felt sick and had to go to the bathroom.Hughes said that he understood that sudden illnesses might occur, but he told her that she must inform the director before leaving her post so that the director did not switch the shot to her camera during her absence.Plaintiff said she understood and that she would tell someone if a situation like that occurred in the future.At the conclusion of the meeting, plaintiff was informed that her probationary period would be extended beyond 90 days and that Hughes would develop a written list of areas that needed improvement.

At some point in the summer of 2007, plaintiff informed Hughes that she had anxiety and depression issues, and that, “workwise,”she would get nervous easily.(Torres Dep. [Docket # 31–1]at 53–54.)Shortly thereafter, plaintiff had a conversation with Hughes and Camps in which they asked her about her anxiety issues.( Id. at 57–58.)Around the same time, plaintiff was hospitalized for one day for reasons relating to her anxiety.Plaintiff called Hughes from the hospital emergency room and informed him that she was at the hospital and would not be able to report for work because she was being taken to the Milwaukee County Health Complex.Plaintiff states that she told Hughes that the hospitalization was related to her anxiety.( Id. at 232.)Hughes told plaintiff not to worry about missing work and that he would cover her shift.

In September 2007, during a live Muscular Dystrophy Association Telethon, plaintiff became nervous and began to cry while performing her duties.Hughes noticed this, approached plaintiff, and told her that she was doing a good job and needed to relax.Plaintiff then went to the bathroom to calm herself down.Plaintiff states that similar incidents—in which she became nervous during broadcasts and had to go to the bathroom to calm down—occurred about three or four other times during the course of her employment at Weigel.

In January 2008, a full-time position became available on the production crew.In order to become a full-time member of the production crew, plaintiff had to be trained to run audio equipment during a broadcast.When plaintiff asked Hughes whether she could be trained to run the audio equipment, he told her that it was not the right time for her to receive that training.Hughes thought that because plaintiff was having difficulty performing her existing duties, giving her additional responsibilities would not be a good idea.His decision to not provide her with additional training was based in part on his observation that she was having emotional and anxiety issues while at work.Hughes advised plaintiff that he did not want to take her out of her “comfort zone” by giving her additional responsibilities.(Hughes Decl. [Docket # 31–2]¶ 24.)

Plaintiff's grandmother passed away on February 24, 2008, and plaintiff took three days of funeral leave along with one personal day.Plaintiff was scheduled to return to work on Sunday, March 2.However, on the evening of Saturday, March 1, plaintiff approached Hughes after hours at a co-worker's going-away party and informed him that she needed a second personal day and would not be able to work on Sunday.Hughes was upset, but he told her that he would cover her shift.However, when preparing the schedule for the following two weeks, Hughes reduced plaintiff's hours to only three shifts over the two-week period.Plaintiff was upset with this reduction in her hours and decided to complain to Lenzo.On March 16, 2008, plaintiff left the following voicemail message for Lenzo:

Hi, Cheryl, this is Lisa Torres calling.Um, I just got some new information just recently that I'm only going to be scheduled one day for the following week and I really seriously need to talk with you about this matter as soon as possible—possibly tomorrow morning or sometime during the week—whenever you're available.I just ... I really need to solve this because this is just ... this disgusts me and I don't know why Bryan Hughes is um scheduling me only for one day.I've never ... this whole year, I've never gotten scheduled only one day.And all the new people are getting a lot of hours and I'm singled out.I'm the only one that's getting two days a week or one day a week.I don't know why he's doing this.I have a feeling he's doing this on purpose and is very discriminatory and I would like to have this solved immediately because I just ... I can't go on like this; I cannot ... it's not enough money to even pay all my bills.What am I supposed to do?You know.This isn't McDonalds; this is a TV station.So, if you can, please give me a call.

(Def.'s Ex. 18 [Docket # 31–8at p. 48].)On March 17, 2008, plaintiff left another voicemail message for Lenzo about being scheduled for only three shifts.In this message, plaintiff stated that she believed that Hughes had discriminated against her by cutting her shifts and that she would “probably have to contact the Department of Workforce Development” if her hours weren't given back.(Resp. to Interrogatory No. 60 [Docket # 39–3at pp. 16–17].)Plaintiff did not say anything in these voicemails about being discriminated against on the basis of disability, and her reference to the Department of Workforce Development was a reference to filing a claim for partial unemployment benefits based on the reduction in her hours.(Torres Dep. [Docket # 31–1]at 197–98.)In response to plaintiff's complaints, Lenzo talked to Hughes and told him to schedule plaintiff to work at least three shifts every week.Hughes complied.

In an internal memorandum drafted shortly after plaintiff made her claim for unemployment benefits, Camps provided someone named Barbara with an overview of plaintiff's employment at Weigel.At the end of the memorandum, Camps stated that plaintiff“has emotional outbursts and appears at times to be very unstable.”(Def.'s Ex. 6 [Docket # 31–8at p. 14].)

On March 31, 2008, plaintiff was assigned to operate a camera during the Telemundo broadcast.The Telemundo broadcast is a thirty-minute news program that is recorded between 7:00 p.m. and 8:00 p.m. for airing at 10:00 p.m. the same evening.Although the broadcast is recorded for airing at a later time, it is recorded “live to tape.”This means that Weigel conducts and records the newscast in a single, continuous, 30–minute segment rather than in multiple segments that are spliced together for later playback.Although most of this 30–minute segment is recorded live in the studio, there is a six-to-nine-minute national news segment that is played from an out-of-state feed.While the national news segment is playing, the camera operators in the studio are not recording anything.Generally, however, the camera operators are on standby in case technical difficulties arise in connection with the out-of-state feed and the local portion of the broadcast must resume.However, it was customary for the director of the Telemundo broadcast to inform the camera operators that they could take a break during the national news segment.

On March 31, while the national news segment was playing, plaintiff left her camera and entered the control room without notifying the director or without anyone else giving her permission to do so.A short time later, plaintiff returned to her camera.After observing plaintiff's actions, Hughes went to the control room and asked Sikorski (the director) whether plaintiff had been given permission to leave her camera.Sikorski said no.Because Hughes had previously warned plaintiff about leaving her camera without permission, he decided to inform Lenzo and Camps about this infraction.A day or two later, Hughes, Lenzo and Camps met to discuss the issue, and they made a preliminary decision to terminate pl...