UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
`GREEN BAY DIVISION
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`v.
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`Plaintiff,
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`Case No: 21-cv-651
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`JURY TRIAL DEMANDED
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`Defendant
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`BIANCA WALKER
`905 Irish Road, Apartment 4
`Neenah, Wisconsin 54956
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`TYSON PREPARED FOODS, INC.
`2200 West Don Tyson Parkway
`Springdale, Arkansas 72762
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`COMPLAINT
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`COMES NOW Plaintiff, Bianca Walker, by her counsel, WALCHESKE & LUZI, LLC,
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`as and for a claim against Defendant, alleges and shows to the court as follows:
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`JURISDICTION AND VENUE
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`1.
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`This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because
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`this case involves a federal question under the Family and Medical Leave Act of 1993, as
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`amended, 29 U.S.C. § 2601 et seq. (“FMLA”) and pursuant to 28 U.S.C. § 1343 because this
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`case involves an Act of Congress providing for protection of civil rights.
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`2.
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`Venue in this District is proper pursuant to 28 U.S.C. 1391(b) and (c), because
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`Plaintiff resides in this District and Defendant has substantial and systematic contacts in this
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`District.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 1 of 7 Document 1
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`EASTERN DISTRICT OF WISCONSIN
`GREEN BAY DIVISION
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`v.
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`Plaintiff,
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`Case No: 21-cv-651
`
`JURY TRIAL DEMANDED
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`
`
`Defendant
`
`BIANCA WALKER
`905 Irish Road, Apartment 4
`Neenah, Wisconsin 54956
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`TYSON PREPARED FOODS, INC.
`2200 West Don Tyson Parkway
`Springdale, Arkansas 72762
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`
`
`COMPLAINT
`
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`COMES NOW Plaintiff, Bianca Walker, by her counsel, WALCHESKE & LUZI, LLC,
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`
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`as and for a claim against Defendant, alleges and shows to the court as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because
`
`this case involves a federal question under the Family and Medical Leave Act of 1993, as
`
`amended, 29 U.S.C. § 2601 et seq. (“FMLA”) and pursuant to 28 U.S.C. § 1343 because this
`
`case involves an Act of Congress providing for protection of civil rights.
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`2.
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`Venue in this District is proper pursuant to 28 U.S.C. 1391(b) and (c), because
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`Plaintiff resides in this District and Defendant has substantial and systematic contacts in this
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`District.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 1 of 7 Document 1
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`PARTIES AND COVERAGE
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`3.
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`Plaintiff, Bianca Walker, is an adult female resident of the State of Wisconsin
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`residing in Winnebago County with an address of 905 Irish Road, Apartment 4, Neenah,
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`Wisconsin 54956.
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`4.
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`Defendant, Tyson Prepared Foods, Inc., is an Arkansas-based corporation with a
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`principal place of business of 2200 West Don Tyson Parkway, Springdale, Arkansas 72762.
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`5.
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`Defendant owns, operates, and manages multiple physical locations in the State of
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`Wisconsin, including at 3620 County Rd D, New London, Wisconsin 54961 (hereinafter
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`Defendant’s “New London, Wisconsin” location).
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`6.
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`7.
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`Defendant is a covered employer for purposes of the FMLA.
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`At the time of Plaintiff’s FMLA leave requests, Plaintiff had been employed at
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`Defendant for twelve (12) months and had worked at least 1250 hours during those twelve (12)
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`months.
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`8.
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`Plaintiff did not exceed the amount of FMLA leave for any FMLA leave entitlement
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`period.
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`9.
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`During Plaintiff’s employment with Defendant, Plaintiff did not meet the criteria
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`under 29 C.F.R. § 825.217(a), which defines “key employee” as used in the FMLA.
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`10.
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`During Plaintiff’s employment with Defendant, Defendant employed at least 50
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`employees within 75 miles of its New London, Wisconsin location.
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`11.
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`Plaintiff has satisfied all administrative remedies and all conditions precedent to
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`bringing this action.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 2 of 7 Document 1
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`GENERAL ALLEGATIONS
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`12.
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`In approximately November 2019, Plaintiff commenced employment with
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`Defendant in the position of Machine Operator via a temporary staffing agency.
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`13.
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`In approximately February 2020, Plaintiff became a full-time direct hire of
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`Defendant in the position of Machine Operator.
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`14.
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`During Plaintiff’s employment with Defendant, Plaintiff reported directly Mary
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`Thoma, Supervisor, who reported directly to Bruce Meyer, Manager. Also, during Plaintiff’s
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`employment with Defendant, Kyle Beals was Defendant’s Human Resources Generalist.
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`15.
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`Plaintiff suffers from Scoliosis, which is a permanent, physical health condition
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`that negatively affects, among other things, the normal functioning of her spine.
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`16.
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`During Plaintiff’s employment with Defendant, Thoma, Meyer, and Beals (among
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`others) were aware and/or had knowledge of Plaintiff’s Scoliosis diagnosis.
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`17.
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`18.
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`Plaintiff’s Scoliosis is considered a serious health condition under the FMLA.
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`During the year 2021, Plaintiff’s Scoliosis and plans for back surgery required at
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`least two (2) appointments and treatment visits with her health care provider(s) and/or treating
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`physicians.
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`19.
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`20.
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`During the year 2021, Plaintiff’s Scoliosis caused Plaintiff periods of incapacity.
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`During Plaintiff’s employment with Defendant, Defendant contracted with a
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`third-party company, Unum, to provide FMLA leave-related administration and services to
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`Defendant’s employees, including Plaintiff.
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`21.
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`In approximately March 2021 and because of her Scoliosis, Plaintiff sought
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`medical opinions from her health care provider(s) and scheduled back surgery in order to help
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`better align her spine and alleviate her pain.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 3 of 7 Document 1
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`22.
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`In approximately March 2021 and because of her Scoliosis, Plaintiff scheduled
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`back surgery for May 7, 2021.
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`23.
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`In approximately mid-March 2021, Unum was informed of Plaintiff’s back
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`surgery scheduled for May 7, 2021 because of her Scoliosis.
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`24.
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`In approximately mid-March 2021, Defendant, including but not limited to
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`Thoma and Beals, were informed of Plaintiff’s back surgery scheduled for May 7, 2021 because
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`of her Scoliosis.
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`25.
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`In approximately mid-March 2021, Plaintiff requested FMLA leave from Unum
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`for her back surgery scheduled for May 7, 2021 because of her Scoliosis.
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`26.
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`In approximately mid-March 2021, Unum knew or was aware that Plaintiff was
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`suffering from a serious health condition that could qualify for FMLA leave.
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`27.
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`In approximately mid-March 2021, Defendant knew or was aware that Plaintiff
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`was suffering from a serious health condition that could qualify for FMLA leave.
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`28.
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`Plaintiff’s back surgery scheduled for May 7, 2021 and subsequent recovery
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`required inpatient care in a hospital.
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`29.
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`Plaintiff’s back surgery scheduled for May 7, 2021 and subsequent recovery
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`rendered her unable to work at Defendant for the duration of her recovery.
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`30.
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`In early April 2021, Unum timely received a completed FMLA health care
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`certification on behalf of Plaintiff regarding Plaintiff’s back surgery on May 7, 2021 and need to
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`attend pre-operation (“pre-op”) medical appointments for same on an intermittent basis.
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`31.
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`In early April 2021, Defendant timely received a completed FMLA health care
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`certification on behalf of Plaintiff regarding Plaintiff’s back surgery on May 7, 2021 and need to
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`attend pre-op medical appointments for same on an intermittent basis.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 4 of 7 Document 1
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`32.
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`In early April 2021, Unum knew or was aware of Plaintiff’s pre-op medical
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`appointment scheduled for April 23, 2021 because of her serious health condition and in
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`preparation for her back surgery on May 7, 2021.
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`33.
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`In early April 2021, Defendant knew or was aware of Plaintiff’s pre-op medical
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`appointment scheduled for April 23, 2021 because of her serious health condition and in
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`preparation for her back surgery on May 7, 2021.
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`34.
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`Plaintiff properly complied with Defendant’s notice policies and practices
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`regarding her back surgery on May 7, 2021 and need to attend pre-op medical appointments for
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`same on an intermittent basis because of her serious health condition.
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`35.
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`Plaintiff properly complied with Defendant’s notice policies and practices
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`regarding her absence from work at Defendant on April 23, 2021 because of her serious health
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`condition and in order to attend a pre-op medical appointment in preparation for her back surgery
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`on May 7, 2021.
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`36.
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`Plaintiff properly complied with Defendant’s notice policies and practices
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`regarding her absences from work at Defendant in April 2021 and May 2021 because of her own
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`serious health condition.
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`37.
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`On April 23, 2021, Plaintiff was absent from work at Defendant because of her
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`serious health condition and in order to attend a pre-op medical appointment in preparation for
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`her back surgery on May 7, 2021.
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`38.
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`Plaintiff’s absence from work at Defendant on April 23, 2021 because of her own
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`serious health condition should have been FMLA-leave approved by Defendant and/or Unum.
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`39.
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`On May 5, 2021, Defendant terminated Plaintiff’s employment.
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 5 of 7 Document 1
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`40.
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`On May 5, 2021, Defendant terminated Plaintiff’s employment because of her
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`absence from work at Defendant on April 23, 2021 because of her own serious health condition,
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`which should have been FMLA-leave approved by Defendant and/or Unum.
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`CAUSE OF ACTION – FAMILY AND MEDICAL LEAVE ACT (INTERFERENCE)
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`41.
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`Plaintiff reasserts and incorporates all paragraphs set forth above as if restated
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`herein.
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`42.
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`Defendant intentionally interfered with Plaintiff’s rights by terminating Plaintiff’s
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`employment for using, and/or in order to prevent her from using, protected leave, in violation of the
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`Family and Medical Leave Act of 1993, as amended, 29 U.S.C. §§ 2601 et seq.
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`43.
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`As a result of Defendant’s intentional violations of the FMLA, Plaintiff suffered
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`damages in the form of loss of wages and other employment benefits and insurance.
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`WHEREFORE, Plaintiff respectfully requests that this Court:
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`1. Order Defendant to make Plaintiff whole by providing back pay, front pay and/or
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`reinstatement, liquidated damages, pre- and post-judgment interest, and reimbursement
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`for other benefits and expenses to be shown at trial;
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`2. Grant to Plaintiff attorneys’ fees, costs, and disbursements as provided by statute; and
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`3. Grant to Plaintiff whatever other relief this Court deems just and equitable.
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`PLAINTIFF DEMANDS A JURY AS TO ALL TRIABLE ISSUES
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 6 of 7 Document 1
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`WALCHESKE & LUZI, LLC
`Counsel for Plaintiff
`s/ Scott S. Luzi
`___________
`James A. Walcheske, State Bar No. 1065635
`Scott S. Luzi, State Bar No. 1067405
`Matthew J. Tobin, State Bar No. 1097545
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`Dated this 25th day of May, 2021
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`WALCHESKE & LUZI, LLC
`235 N. Executive Drive, Suite 240
`Brookfield, Wisconsin 53005
`Telephone: (262) 780-1953
`Fax: (262) 565-6469
`E-Mail: jwalcheske@walcheskeluzi.com
`E-Mail sluzi@walcheskeluzi.com
`E-Mail mtobin@walcheskeluzi.com
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`Case 1:21-cv-00651-WCG Filed 05/25/21 Page 7 of 7 Document 1
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