Kazmierski v. Bonafide Safe & Lock, Inc.

223 F. Supp. 3d 838, 2016 U.S. Dist. LEXIS 170725, 2016 WL 7187321
CourtDistrict Court, E.D. Wisconsin
DecidedDecember 9, 2016
DocketCase No. 15-C-0059
StatusPublished
Cited by2 cases

This text of 223 F. Supp. 3d 838 (Kazmierski v. Bonafide Safe & Lock, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kazmierski v. Bonafide Safe & Lock, Inc., 223 F. Supp. 3d 838, 2016 U.S. Dist. LEXIS 170725, 2016 WL 7187321 (E.D. Wis. 2016).

Opinion

DECISION AND ORDER

LYNN ADELMAN, District Judge

Michael Kazmierski alleges that Bona-fide Safe & Lock, Inc., terminated his employment in violation of the Americans with Disabilities Act (“ADA”). Before me now is Bonafide’s motion for summary judgment, and also the plaintiffs motion to strike Bonafide’s response to the plaintiffs proposed findings of fact. Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, I take evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. BACKGROUND

The plaintiff began working for the defendant as a locksmith technician in 2004. His job primarily involved traveling to homes and businesses to service or install locks, doors, safes, bank vaults, and related security equipment. The defendant terminated the plaintiffs employment in August 2013. The decision to terminate the plaintiffs employment was made by Mike Egan, the president of the company. The plaintiff contends that he was terminated in violation of the ADA.

In the early 2000s, before the defendant hired him, the plaintiff was diagnosed with three herniated discs in his lower back. According to the plaintiffs evidence, he continues to suffer from back pain associated with the herniated discs and will occasionally experience flare-ups of back pain. For purposes of summary judgment, the defendant concedes that the plaintiffs herniated discs and the associated back pain qualify as a disabilities under the ADA.

In 2008, the plaintiff was diagnosed with chronic sinusitis. He continued to suffer from that condition throughout his employment with the defendant. The sinusitis flares up about two to four times each year and causes the plaintiff to experience sinus infections, cold—and flu-like symptoms, fluid build-up in his ears, headaches, and vertigo. PL’s Proposed Findings of Fact (“PFOF”) ¶ 38. During flare-ups, the plaintiff will take prescribed antibiotics and steroids that significantly affect his ability to function. For purposes of summary judgment, the defendant concedes that the plaintiffs sinusitis qualifies as a disability under the ADA.

Also in 2008, the plaintiff suffered a heart attack. By the time Bonafide terminated the plaintiffs employment, he had [841]*841recovered from the heart attack, and the plaintiff does not claim a heart condition as a disability. However, shortly after the heart attack, the plaintiff began suffering from anxiety attacks, which were triggered by stress and/or fear that he would experience another heart attack. In 2011, the plaintiff began seeing a psychiatrist and a therapist, and he was diagnosed with anxiety and depression and prescribed medication to treat those conditions. For purposes of summary judgment, the defendant concedes that the plaintiffs anxiety and depression qualify as disabilities under the ADA.

During the plaintiffs employment, the defendant provided him with five paid sick days every year. However, in the years preceding his termination, the plaintiff called in to work much more often than that. In 2011, the plaintiff took 16 unplanned sick days.1 Def. PFOF ¶71. In 2012, he took 10 unplanned sick days. Id. ¶ 72. And in the first seven months of 2013, the plaintiff took 10 unplanned sick days. Id. ¶ 85. During these years, when the plaintiff ran out of his allotted five sick days, he used his vacation days and unpaid leave to make up the difference. At least some of the plaintiffs unplanned sick days were necessitated by flare-ups of the conditions that the plaintiff claims as disabilities under the ADA, ie., his herniated discs, sinusitis, anxiety, and depression. However, a large quantity of these unplanned sick days have no connection to these specific conditions. These sick days were used to deal with matters such as the flu, a cough, bronchitis, gastro-intestinal issues, eye pain, colitis, a dental emergency, and a vet emergency. See Def. PFOF ¶¶ 84, 86, 93,100,101,103,107.

Over the years, the defendant occasionally expressed to the plaintiff that it was unhappy with his attendance, although it did not formally discipline the plaintiff for absenteeism until he was terminated. The parties seem to agree that the plaintiffs attendance was satisfactory until at least 2008, when the plaintiff suffered his heart attack. In 2008 and 2009, the defendant’s service manager, Mike Gildemeister, and the company’s president, Mike Egan, completed performance reviews for the plaintiff in which they described his attendance as “marginal.” Def. PFOF ¶¶ 62-63. In 2010, the plaintiff completed a self-evaluation in which he characterized his “attendance/punctuality” as “below expectations.” Yvonne Egan Decl. Ex. 1. It appears that the plaintiffs absences through about 2010 may have been associated with his anxiety and depression, which at that point were undiagnosed. In 2009, Mike Egan noticed that the plaintiff seemed depressed, and he suggested that the plaintiff consider seeing a therapist. The plaintiff did start seeing a therapist in 2009 or 2010. Kazmierski Dep. at 43. However, as noted above, the plaintiffs need for a large number of sick days continued through the end of his employment. By 2011 or 2012, Mike Egan implemented a policy under which the plaintiff was required to report the need for an unplanned sick day directly to him. Kazmi-erski Dep. at 40, 87-88. Egan felt that if the plaintiff were required to report his sick days directly to the company president, he would be less likely to call in sick. M. Egan Decl. ¶¶ 8-9.

The defendant contends that, by July 2013, Egan was concerned with how the plaintiffs absences were affecting the company. Def. PFOF ¶ 108. Egan did not have [842]*842a problem with any of the plaintiffs scheduled absences, such as planned vacations and other days on which the plaintiff reported in advance that he would be absent to deal with a medical issue. This was because if -the absence was planned the company could prepare for it. Egan Dep. at 62. The plaintiffs regular visits with his psychiatrist and therapist were of the “planned” variety, and the company did not have any difficulty ■ accommodating those. PI. PFOF ¶ 54; Decl. of Michael Gildemeister ¶8. What Egan was concerned about was the plaintiffs unplanned absences—those in which he would call in to work to report an absence between 7:00 a.m. or 8:00 a.m. on a day the company expected him to be at work. These unplanned absences created a problem for the company because they would disrupt the schedule for the day. By the time the plaintiff called in, the service manager would have already assigned the majority of the work to be performed during the day to specific locksmiths. Gildemeister Decl. ¶¶ 9-10. Thus, when the plaintiff reported that he would be absent, the company would have to try'to quickly reassign the service calls that had been assigned to the plaintiff to other locksmiths, who themselves were already scheduled to be performing their own service calls, or to find some other way to handle the work that had been assigned to the plaintiff. Id. ¶¶ 9-12.

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223 F. Supp. 3d 838, 2016 U.S. Dist. LEXIS 170725, 2016 WL 7187321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kazmierski-v-bonafide-safe-lock-inc-wied-2016.