throbber
UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
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`
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`FIDIAS TORRES,
`Plaintiff,
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`Case No. 19-C-1491
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`v.
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`CHILDREN’S HOSPITAL AND
`HEALTH SYSTEM, INC.,
`
`
`Defendant.
`______________________________________________________________________
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`DECISION AND ORDER
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`Plaintiff Fidias Torres alleges that her former employer, Children’s Medical Group,
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`Inc., violated the Americans with Disabilities Act (“ADA”) and the Family and Medical
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`Leave Act (“FMLA”). She contends that Children’s discriminated against her on the basis
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`of disability when it terminated her employment after failing to reasonably accommodate
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`her mental-health conditions. She also contends that she was subjected to a hostile work
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`environment. Finally, she contends that Children’s retaliated against her for seeking a
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`reasonable accommodation and/or for applying for FMLA leave. Before me now is
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`Children’s motion for summary judgment.
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`I. BACKGROUND
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`A.
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`General Background
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`
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`Children’s Medical Group, Inc., is an affiliate of Children’s Hospital and Health
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`System, Inc., a non-profit health-care system based in Wauwatosa, Wisconsin, that
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`provides medical care to children and their families. In 2002, the plaintiff began working
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`as a medical assistant at a clinic within the Children’s system. From 2002 to 2017, she
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`worked part-time at several different Children’s locations. On September 10, 2017, she
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`began working at Franklin Pediatrics in Franklin, Wisconsin, a pediatrics clinic that is part
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`of Children’s Medical Group, Inc.
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`During her time at Franklin Pediatrics, the plaintiff held the position of medical
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`assistant. She was classified as a part-time employee who was expected to work 24 hours
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`per week. (Children’s describes her position as “0.6 FTE,” which means that she worked
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`60% of a full-time position.) Generally, the clinic scheduled her to work three eight-hour
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`shifts per week, for a total of 12–13 shifts per month. The clinic was open Monday through
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`Friday, from 8:30 a.m. to 5:00 p.m.
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`As a medical assistant, the plaintiff’s primary responsibility was to “room” patients
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`after they had checked in at the front desk. The process of rooming a patient involves
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`escorting the patient to an exam room, taking the patient’s vital signs, starting a progress
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`note for the visit, asking the patient questions about medications and allergies, and
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`eventually informing the physician that the patient is ready to be seen. Medical assistants
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`also perform other clinical tasks, such as filling out electronic health records,
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`administering certain medical tests, and collecting and labeling specimens. Franklin
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`Pediatrics generally had one medical assistant and one physician work together for an
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`entire shift. During the plaintiff’s employment, Franklin Pediatrics employed four medical
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`assistants to assist the five physicians who treated patients at the clinic. The plaintiff was
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`supervised by Debra Danowski, the clinic’s practice manager.
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`The plaintiff suffers from bipolar disorder, post-traumatic stress disorder, and
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`anxiety and attention deficient disorder. These conditions cause her to become severely
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`depressed, to feel isolated, and to have panic attacks. To treat her symptoms, the plaintiff
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`takes several medications that make her extremely drowsy and sedated.
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`B.
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`Background to Claim of Failure to Accommodate/Termination on the Basis
`of Disability
`On January 26, 2018, Danowski met with the plaintiff to discuss several issues
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`with her job performance, including Danowski’s observation that the plaintiff had
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`frequently been arriving late for her scheduled shifts. When the plaintiff explained that the
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`side effects of her medications caused her to oversleep, Danowski asked her whether it
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`would help to move her scheduled start time from 8:30 a.m. to 9:00 a.m. The plaintiff said
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`that it would. The plaintiff also expressed interest in starting even later, at 10:00 a.m. She
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`believed that some of the physicians at the clinic did not start seeing patients until 10:00
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`a.m., and she asked to be the medical assistant assigned to the later-starting physician
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`each day. However, the meeting ended with Danowski’s agreeing to move the plaintiff’s
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`scheduled start time to 9:00 a.m.
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`Besides requiring her to take medications that caused her to oversleep, the
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`plaintiff’s mental conditions interfered with her ability to work in other respects. The
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`plaintiff would experience “flare ups” of her conditions while at work that would cause
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`severe anxiety or depression. Sometimes, when these flare-ups occurred, the plaintiff
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`would have to abruptly leave work for the day. See Torres Dep. at 69–72. On other
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`occasions, the plaintiff would experience depression or anxiety before work and be unable
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`to report for her shift at all. Id. at 74–75.
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`On February 16, 2018, the plaintiff submitted a request to Children’s third-party
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`administrator to take intermittent leave, as needed, when she experienced flare-ups of
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`her conditions. The plaintiff included a certification from her psychiatrist, Dr. Raymond
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`Moy, with her request. Under Children’s policy for administering family and medical leave
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`and requests for accommodation of a disability, this was the first step in receiving such
`3
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`leave or an accommodation. Under the policy, the third-party administrator could grant
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`leave under the FMLA (or Wisconsin’s version of the FMLA) without consulting Danowski
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`or anyone else at the clinic. However, the third-party administrator could not grant a
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`reasonable accommodation without receiving input from Danowski or other Children’s
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`personnel.
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`On March 2, 2018, a meeting was held to discuss the plaintiff’s request for
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`intermittent leave. The plaintiff and Danowski attended this meeting, as did Christine
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`Prud’Homme (from Children’s human-resources department) and a representative from
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`Children’s third-party administrator. After discussing the plaintiff’s need for an
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`accommodation beyond her 9:00 a.m. start time, the meeting participants agreed that the
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`plaintiff would be permitted to arrive late for, or miss entirely, up to eight of her shifts each
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`month without penalty when her health conditions prevented her from working. With this
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`accommodation in place, the plaintiff could arrive late for work, leave early, or be absent
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`for an entire shift, up to eight times per month, provided that Children’s third-party
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`administrator determined that the absence or late arrival was related to her medical
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`condition. Under the terms of the accommodation, the plaintiff was expected to notify both
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`Danowski and the third-party administrator each time she needed to use her leave.
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`Further, the plaintiff was expected to inform Danowski at least one hour prior to the
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`scheduled start of her shift that she would be using leave so that Danowski could attempt
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`to reassign the plaintiff’s responsibilities to other employees. Children’s agreed to provide
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`this accommodation to the plaintiff until August 8, 2018. It was hoped that, by then, the
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`plaintiff would no longer need the accommodation because a revised treatment plan that
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`Dr. Moy had started her on would be successful.
`4
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`While Children’s employed the plaintiff, it maintained an attendance policy under
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`which an unexcused absence or late arrival qualified as an “occurrence.” The policy
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`recommended that the employee receive corrective action after accruing certain numbers
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`of occurrences. For example, after the fourth occurrence, the employee should receive
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`counseling about his or her attendance. The recommended corrective action increased
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`in severity as the employee accrued more occurrences. The policy recommended that
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`the employee be suspended or terminated after accruing 9 or more occurrences in a
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`rolling 12-month period.
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`Once the plaintiff’s leave program was approved, Danowski did not count the
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`plaintiff’s absences or late arrivals as occurrences under the attendance policy so long as
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`the third-party administrator deemed them to be within the scope of the plaintiff’s medical
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`leave. However, Danowski continued to track the plaintiff’s attendance, and she assessed
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`occurrences for any absences or late arrivals that the third-party administrator did not
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`approve.
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`Danowski found it very difficult to manage the plaintiff’s leave. She found it hard to
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`properly staff the clinic when the plaintiff could miss up to 75% of her 12–13 shifts per
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`month. Further, the plaintiff consistently failed to provide Danowski one hour’s notice of
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`when she would be late or not coming in at all. According to Danowski’s records, the
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`plaintiff failed to provide one hour’s notice for her absences and late arrivals on 40
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`occasions. Often, Danowski had to call the plaintiff after the scheduled start of her shift to
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`determine whether the plaintiff intended to report for work at all. When the plaintiff did
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`inform Danowski of her need to use leave, she often was unable to indicate when she
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`would arrive. Danowski did not count the plaintiff’s late notices as occurrences under the
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`attendance policy, but she did keep track of them so that she could factor them into any
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`future evaluation of whether the leave program would be continued.
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`On July 6, 2018, Danowski and Prud’Homme met with the plaintiff to discuss her
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`accommodations. Danowski informed her that her leave was proving very difficult to
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`manage in large part because of how little notice she provided when she was not able to
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`work, which made it difficult for Danowski to properly staff the clinic. Danowski and
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`Prud’Homme informed the plaintiff that she could reapply for intermittent leave after it
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`expired on August 8, 2018. But Danowski stated that, if the plaintiff reapplied, Danowski
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`would have to evaluate the reasonableness of the request and that she would be unlikely
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`to recommend continuing to grant the plaintiff up to eight excused absences per month.
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`Danowski stated that she could, however, continue to provide the plaintiff with a 9:00 a.m.
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`start time.
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`By the middle of August 2018, the plaintiff had accrued 10 occurrences under the
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`attendance policy. None of these occurrences were assessed for absences that were
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`excused under the plaintiff’s leave program; instead, each occurrence represented an
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`instance in which the plaintiff was late or absent and the third-party administrator did not
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`certify that the attendance violation was related to her mental condition. Because the
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`attendance policy recommended termination after 9 absences, Children’s could have
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`terminated the plaintiff at this time. However, on August 14, 2018, Danowski and
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`Prud’Homme met with the plaintiff and delivered a performance warning in lieu of
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`termination. But they made clear that if the plaintiff continued to accrue occurrences, the
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`next step would be termination.
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`6
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`On September 19, 2018, Children’s third-party administrator renewed the plaintiff’s
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`intermittent leave program in modified form. Under the renewed leave program, which ran
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`from September 18, 2018 through December 31, 2018, the plaintiff was granted a total of
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`48 hours’ leave that she could use as needed. The renewal of the plaintiff’s leave came
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`as a surprise to Danowski, who had not been consulted. On September 20, 2018,
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`Danowski wrote an email to the third-party administrator in which she asked why the leave
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`was approved without her input. The administrator told her that because the plaintiff had
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`become eligible for leave under Wisconsin’s version of the FMLA, the administrator could
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`approve such leave without supervisor approval. The administrator stated that, after
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`December 31, 2018, when the plaintiff exhausted her FMLA-style leave, Children’s would
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`reassess whether to grant the plaintiff additional leave as a reasonable accommodation.
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`Danowski stated in response that, because of the difficulty in managing the plaintiff’s
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`leave, she intended to “lobby not to approve any additional leave” once the plaintiff
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`exhausted her FMLA-style leave. See Danowski Dep. Ex. 24.
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`From September through December 2018, the plaintiff continued to be frequently
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`late or absent. Many of these attendance infractions were excused under the leave
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`program, but the plaintiff also accrued several absences that were not excused and thus
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`qualified as occurrences under the attendance policy.
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`On January 10, 2019, the plaintiff contacted Children’s third-party administrator to
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`seek another extension of her leave program. At this time, the plaintiff was not eligible for
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`leave under either the Wisconsin FMLA or the federal FMLA, and thus any additional
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`leave would have to come in the form of a reasonable accommodation under the ADA.
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`On January 11, 2019, the third-party administrator sent the plaintiff a letter stating that,
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`before it could evaluate her request for an accommodation, it would need to receive an
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`updated certification from her medical provider. It advised her that it must receive the
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`certification by January 26, 2019. The plaintiff then contacted Dr. Moy’s office and was
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`told that the doctor had received the certification request from the third-party
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`administrator. But on January 19, 2019, the third-party administrator contacted the plaintiff
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`and told her that it had yet to receive the certification from Dr. Moy. On January 23, 2019,
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`the third-party administrator sent a letter to the plaintiff in which it extended the deadline
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`to receive the certification until January 30. But the certification was never received, and
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`on January 31, 2019, the third-party administrator sent a letter to the plaintiff informing
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`her that her request for an accommodation was denied because the medical certification
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`was not received. On February 4, 2020, the plaintiff contacted Dr. Moy’s office and was
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`told that the doctor did not fill out the paperwork because he was in the process of closing
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`his practice.
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`Because the plaintiff’s request to extend the intermittent leave program was denied
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`for failure to submit the medical certification, the third-party administrator never contacted
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`Danowski to obtain her input on extending the leave program. However, the record
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`indicates that, had the administrator asked for Danowski’s input, she would have opposed
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`extending the program. As noted above, Danowski informed the administrator in
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`September 2018 that she was likely to lobby against an extension of the program when
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`the plaintiff’s FMLA-style leave expired. Further, Danowski drafted an internal document
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`known as an “SBAR” in which she detailed the difficulties she experienced in properly
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`staffing the clinic while the plaintiff was using intermittent leave, and in which she
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`8
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`recommended not approving additional leave once the plaintiff’s FMLA-style leave
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`expired. See Danowski Dep. Ex. 22.
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`Beginning in January 2019, when the plaintiff’s leave expired, all her late arrivals,
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`early departures, and unexcused absences began to be counted as occurrences under
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`the attendance policy. By February 14, 2019, the plaintiff had accrued eleven occurrences
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`over a rolling 12-month period. At that point, Danowski met with Prud’Homme, and they
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`decided to terminate the plaintiff’s employment. They intended to inform the plaintiff of
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`her termination in person when she arrived for her shift on February 19, 2019. However,
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`the plaintiff did not report for her shift that day, thus incurring a twelfth occurrence.
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`Because the plaintiff did not report to work, Danowski called the plaintiff to inform her that
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`she had been terminated. Danowski gave the plaintiff the option of resigning in lieu of
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`termination.
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`The next day, the plaintiff sent an email to Danowski stating that her absence the
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`day before was caused by her bipolar disorder. The plaintiff asked Danowski to
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`accommodate her by granting her time to see her new psychiatrist and allowing the
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`psychiatrist to submit the paperwork necessary for the third-party administrator to process
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`her leave request. The plaintiff said that her appointment with the psychiatrist was
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`scheduled for March 4, 2018. After receiving this email, Danowski attempted to call the
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`plaintiff, but the plaintiff did not answer. Instead, she texted Danowski and said that she
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`was not available to talk over the phone.
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`In a letter dated February 21, 2019, Danowski informed the plaintiff that her
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`employment was terminated because of her history of poor attendance. The letter stated
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`that the plaintiff had accrued 12 occurrences over the past 12 months and identified each
`9
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`occurrence. None of the cited occurrences involved a late arrival or absence that had
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`been excused under the plaintiff’s leave program.
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`C.
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`Background to Claim of Hostile Work Environment
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`The plaintiff contends that her coworkers subjected her to a hostile work
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`environment because of her disabilities while she worked at Franklin Pediatrics. On March
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`26, 2018, the plaintiff asked to meet with Danowski. During the meeting, the plaintiff told
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`Danowski that she thought she was being “nitpicked” by her coworkers and that they were
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`“bullying” her. Torres Dep. at 76–77. By “bullying,” she meant that her coworkers would
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`look at her social media account and then criticize her for making posts about her other
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`part-time job, which was bartending. Id. at 77. The plaintiff told Danowski that she
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`understood that some of her coworkers were not aware that she had a mental disorder,
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`but that she felt like they were “shunning” her or “looking down on” her because she used
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`so much leave. Id. at 78. Danowski told the plaintiff that her coworkers were frustrated
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`with her because they felt like they must work harder and with less assistance due to her
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`attendance. Danowski told the plaintiff to look at the shadow she cast, by which Danowski
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`apparently meant that the plaintiff should pay attention to how she portrayed herself to
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`her coworkers. See Danowski Decl. Ex. 2. Danowski told the plaintiff that she expected
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`all employees to maintain professional relationships with each other but that being friends
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`or even liking each other does not have to be part of that relationship. Id. Danowski then
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`asked the plaintiff what she wanted to see changed or how she would like to see the work
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`environment improve. Id. The plaintiff said that she was not sure but that she felt like she
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`10
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`was doing her job correctly. Id. The plaintiff asked Danowski what Danowski could do to
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`help her, and Danowski said that she would think about it and identify her next steps. Id.
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`That afternoon, Danowski contacted Prud’Homme to tell her about her
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`conversation with the plaintiff and to discuss how she might address the plaintiff’s
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`concerns. They decided that Danowski should speak with the plaintiff’s coworkers about
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`appropriate workplace behavior and work with them on how to manage their frustrations
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`over the plaintiff’s unreliable attendance. Danowski also intended to follow up with the
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`plaintiff to clarify what she considered to be bullying and to solicit feedback from her about
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`what might alleviate her concerns. Danowski Decl. ¶ 28 & Ex. 2. Thereafter, Danowski
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`had one-on-one conversations with the plaintiff’s coworkers “to discuss communicating
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`with respect and maintaining professional relationships in the workplace as it relates to
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`their interactions with [the plaintiff], regardless of her work attendance or any other
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`issues.” Id. ¶ 29.
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`On June 26, 2018, Danowski asked to meet with the plaintiff to discuss concerns
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`about her job performance. The concerns included a family’s complaint about her bedside
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`manner, and physicians’ concerns regarding delays in performing labs and rooming
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`patients and their not being able to find the plaintiff during her shifts. During the meeting,
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`the plaintiff reiterated her belief that she was being nitpicked and bullied by her coworkers.
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`She also said that she thought that her position at Franklin Pediatrics was not a good fit
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`and expressed interest in finding other employment options in the Children’s system.
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`Danowski advised the plaintiff to contact Prud’Homme, who managed human resources
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`for Children’s, to see whether other employment options were available.
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`Later that day, the plaintiff called Prud’Homme and expressed interest in applying
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`for a different position. Prud’Homme advised the plaintiff that she could search for open
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`positions on the Internet. The plaintiff also told Prud’Homme that she felt like she was
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`being bullied by her coworkers at Franklin Pediatrics. See Torres Dep. at 91. When
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`Prud’Homme asked the plaintiff what she meant by “bullying,” the plaintiff was unable to
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`elaborate. Id. But then when Prud’Homme asked for an example of bullying, the plaintiff
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`said that her coworkers “make comments about mental disease,” “shun” her, and refuse
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`to help her do her job. Id. at 91–92. The plaintiff also told Prud’Homme that her coworkers
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`“nitpick” the way she does her job and sometimes fail to say good morning to her or
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`otherwise acknowledge her presence in the office. Id. at 92. Prud’Homme told the plaintiff
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`that the behavior she was describing sounded more like incivility than bullying. Id. At this
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`point, the plaintiff became irritated and felt like her concerns were being dismissed. Id. at
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`92–93.
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`During the following months, Danowski gave several presentations to staff
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`members regarding bullying and proper treatment of coworkers. On July 19, 2018,
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`Danowski conducted an all-staff meeting during which she provided training and guidance
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`about bullying and incivility. She explained that Children’s would not tolerate bullying in
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`the workplace and would address any instances of bullying that came to management’s
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`attention to prevent it from recurring. On September 17, 2018, at another all-staff meeting,
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`Danowski gave a presentation entitled “Bullying Prevention: Creating a Professional
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`Working Environment.” The presentation explained how to treat co-workers with
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`professionalism, ways to create a positive work environment, and identified available
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`resources for those who might be subject to bullying. Finally, at an all-staff meeting held
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`on November 15, 2018, Danowski spoke about integrity and reiterated Children’s
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`expectation that employees treat others with respect and compassion.
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`The plaintiff does not describe any incidents in which her coworkers made insulting
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`comments to her about mental disease or any other disability or health condition.
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`However, she points to two instances in which she thought her coworkers expressed
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`disdain for people with mental conditions. First, the plaintiff describes a staff meeting
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`during which an employee indicated that she would sometimes have panic attacks before
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`coming to work. When Danowski asked whether anyone else had a similar experience,
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`the plaintiff said that she did. She then said that she wakes up every morning wondering
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`whether she should come to work or kill herself. Torres Dep. at 96. Someone in the
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`meeting responded to her comment by saying, “Well, that’s a little extreme.” Id. The
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`plaintiff considered this comment demeaning. Second, the plaintiff describes an instance
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`in which coworkers were gossiping about one of the clinic’s physicians. The physician
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`had what the plaintiff described as a “meltdown” in the clinic one day earlier. Torres Dep.
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`at 78–79. The plaintiff believed that this doctor had bipolar disorder, and she thought that
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`her coworkers were insulting people with mental disease by describing the doctor as
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`having “flipped out.” Id.
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`D.
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`Background to Retaliation Claim
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`
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`The plaintiff also alleges that Children’s retaliated against her for either seeking
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`reasonable accommodations or applying for FMLA leave. Primarily, she claims that
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`Children’s retaliated against her by terminating her employment, but she also points to
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`other alleged retaliatory acts. In this regard, she notes that Danowski often questioned
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`the validity of the plaintiff’s leave requests and that this worked to dissuade her from
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`enforcing her rights under the ADA and the FMLA. Id. Finally, the plaintiff accuses
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`Danowski of falsifying attendance records to make it appear as though the plaintiff
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`reported late to two shifts when she had actually arrived on time. Id.
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`* * *
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`Children’s now moves for summary judgment on all the plaintiff’s claims.
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`II. DISCUSSION
`
`
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` Summary judgment is required where “there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). When considering a motion for summary judgment, I view the evidence in the light
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`most favorable to the non-moving party and must grant the motion if no reasonable juror
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`could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).
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`A.
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`Failure to Provide a Reasonable Accommodation
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`
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`Section 12112(a) of the ADA prohibits employers from discriminating “against a
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`qualified individual on the basis of disability in regard to job application procedures, the
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`hiring, advancement, or discharge of employees, employee compensation, job training,
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`and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To
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`prove a violation of § 12112(a), a plaintiff must show that: (1) she was disabled; (2) she
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`was otherwise qualified to perform the essential functions of the job with or without
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`reasonable accommodation; (3) she suffered an adverse employment action; and (4) the
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`adverse action was caused by her disability. See, e.g., Kurtzhals v. County of Dunn, 969
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`F.3d 725, 728 (7th Cir. 2020).
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`
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`In the present case, the parties agree that the plaintiff’s mental conditions are
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`disabilities. The defendant moves for summary judgment on the ground that the plaintiff
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`was not qualified to perform the essential functions of her job with or without reasonable
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`accommodation. The defendant contends that regular attendance and punctuality were
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`essential functions of a medical assistant at Franklin Pediatrics, and that the plaintiff could
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`not perform those functions with or without reasonable accommodation.
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`
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`The plaintiff does not dispute that regular attendance and punctuality were
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`essential functions of her position. And the Seventh Circuit has repeatedly recognized
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`that regular attendance is an essential function of most jobs. See, e.g., Whitaker v. Wis.
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`Dep’t of Health Servs., 849 F.3d 681, 684–85 (7th Cir. 2017); Preddie v. Bartholomew
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`Consol. Sch. Corp., 799 F.3d 806, 813–14 (7th Cir. 2015); Taylor-Novotny v. Health
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`Alliance Med. Plans, Inc., 772 F.3d 478, 489–90 (7th Cir. 2014); Basden v. Prof’l Transp.,
`
`Inc., 714 F.3d 1034, 1037 (7th Cir. 2013). There is no evidence in the record suggesting
`
`that the job of medical assistant is an unusual one in which regular attendance is not an
`
`essential function. Indeed, because a medical assistant meets with patients and assists
`
`physicians in a clinical setting, it would be impossible to perform the job without coming
`
`into work when scheduled. Thus, regular attendance and punctuality were essential
`
`functions of the plaintiff’s position.
`
`
`
`The plaintiff contends that she could have performed the essential functions of her
`
`job if Children’s would have accommodated her in various respects. In her brief, she
`
`identifies several potential accommodations: (1) allowing her to arrive late, leave early, or
`
`miss shifts entirely when her disability or medications prevented her from working, (2)
`
`scheduling her shifts to begin at 10:00 a.m. or allowing her to work exclusively half-days
`
`in the afternoons, and (3) transferring her to a position in which she worked at the front
`
`desk. I address each potential accommodation in turn.
`15
`
`
`
`
`Case 2:19-cv-01491-LA Filed 11/30/20 Page 15 of 33 Document 35
`
`

`

`
`
`
`
`1.
`
`Permitting sporadic attendance
`
`The plaintiff first contends that Children’s should have accommodated her by
`
`continuing to excuse her absences and late arrivals when her mental conditions flared up
`
`or her medications caused her to oversleep. The plaintiff does not specify the number of
`
`absences or late arrivals she would have required each month, and she submits no
`
`evidence from a psychiatrist or other medical provider indicating how often she could have
`
`been expected to miss work. But based on her track record during her tenure at Franklin
`
`Pediatrics, the only reasonable conclusion is that the plaintiff would have required a
`
`substantial number of late arrivals and absences per month. During the six months in
`
`which she was allowed up to eight excused attendance infractions per month, the plaintiff
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`used medical leave to arrive late or be absent for 25 of her 79 shifts. ECF No. 28-8 (report
`
`stating that between February 9, 2018 and August 8, 2018, plaintiff used medical leave
`
`to cover 25 of 79 shifts). Further, during the same period, the plaintiff was absent or late
`
`for reasons unrelated to her medical condition nine times. See ECF No. 28-7 (list of
`
`occurrences showing absences or late arrivals occurred on nine dates between March 9,
`
`2018 and July 27, 2018). Thus, it appears that the plaintiff would have needed enough
`
`sporadic leave to cover at least one-third of her shifts each month. And because there is
`
`no indication that the plaintiff’s mental condition is temporary, her need for this leave
`
`would likely have continued for as long as she held the job.
`
`
`
`Another aspect of the plaintiff’s proposed accommodation is that she be excused
`
`from providing notice to the clinic when she needs to use leave. Recall that when
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`Children’s initially allowed the plaintiff to miss shifts up to eight times per month, the
`
`company asked her to provide the clinic with one hour’s notice whenever she intended to
`16
`
`
`
`
`Case 2:19-cv-01491-LA Filed 11/30/20 Page 16 of 33 Document 35
`
`

`

`use medical leave. The purpose of the notice requirement was to enable the clinic to
`
`reassign the work the plaintiff was expected to perform. But the plaintiff seldom provided
`
`one hour’s notice, and often Danowski would have to call her after her shift began to
`
`determine whether she would be coming in. In her brief, the plaintiff now contends that
`
`Children’s should have accommodated her further by excusing her from having to provide
`
`one hour’s notice of her absences and late arrivals.1 See Br. in Opp. at 18. The plaintiff
`
`notes that she was given a late start time precisely because her medications caused her
`
`to oversleep, and she contends that it was impossible for her to consistently provide one
`
`hour’s notice of her absences. Essentially, then, the plaintiff contends that the ADA
`
`required Children’s to have allowed her to arrive late or miss shifts several times per
`
`month without informing the clinic ahead of time so that it could attempt to reassign her
`
`duties to other employees.
`
`
`
`Clearly, however,
`
`the ADA did not require
`
`this result. “A
`
`‘reasonable
`
`accommodation’ is one that allows the disabled employee to ‘perform the essential
`
`functions of the employment position.’” Severson v. Heartland Woodcraft, Inc., 872 F.3d
`
`476, 481 (7th Cir. 2017) (quoting 42 U.S.C. § 12111(8)). In this case, as discussed, the
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`essential functions of the plaintiff’s position included regular attendance and punctua

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