Milwaukee Police Ass'n v. Flynn

2011 WI App 112, 801 N.W.2d 466, 335 Wis. 2d 495, 17 Wage & Hour Cas.2d (BNA) 1502, 2011 Wisc. App. LEXIS 470
CourtCourt of Appeals of Wisconsin
DecidedJune 14, 2011
DocketNo. 2010AP2254
StatusPublished
Cited by5 cases

This text of 2011 WI App 112 (Milwaukee Police Ass'n v. Flynn) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milwaukee Police Ass'n v. Flynn, 2011 WI App 112, 801 N.W.2d 466, 335 Wis. 2d 495, 17 Wage & Hour Cas.2d (BNA) 1502, 2011 Wisc. App. LEXIS 470 (Wis. Ct. App. 2011).

Opinion

CURLEY, EJ.

¶ 1. The Milwaukee Police Association and David Grycowski (collectively, "Grycowski") appeal an order affirming a decision of the Board of Fire and Police Commissioners of the City of Milwaukee in which the Board1 determined that Grycowski was not entitled to a "just cause" hearing pursuant to Wis. Stat. § 62.50 (2009 — 10)2 to contest being placed on an unpaid leave of absence under the federal Family Medical Leave Act ("FMLA"). Grycowski argues that § 62.50— which provides that no police officer may be suspended unless the Board determines, following a hearing, there is "just cause" for doing so — applies to unpaid FMLA leave and that the Board and trial court consequently erred in denying him a "just cause" due process hearing and in failing to provide him with continued pay and benefits pending a hearing before the Board. Grycowski also argues, in the alternative, that the Chief of Police improperly placed him on FMLA leave instead of disciplining him for "idling and loafing" in order to bypass the due process review mandated by § 62.50. We do not agree. Section 62.50 applies to disciplinary proceedings, and there is nothing in the statutory language or in the context of the statute that suggests that it applies to unpaid FMLA leave. Moreover, the terms of Grycowski's FMLA are at odds with the procedural framework of § 62.50, and Grycowski was not "disciplined" as contemplated by the statute. We therefore hold that Grycowski was neither entitled to a "just [498]*498cause" due process hearing nor pay and benefits pending such a hearing. We further decline to consider Grycowski's alternative argument, that the Chief placed Grycowski on FMLA leave in order to circumvent Grycowski's statutory due process rights, because it lacks sufficient support from the record. We affirm.

I. Background.

¶ 2. Due to a work-related spinal injury Grycowski suffered just two years into his policing career, Grycowski spent most of his time employed with the Milwaukee Police Department working "limited duty" assignments. Grycowski's most recent assignment— begun in September 2005 — was with the Department's Central Records Division, where he entered data for all stolen and recovered vehicles. His immediate supervisor was administrative specialist senior Drita M. Spahiu. The commanding officer was deputy inspector Mary Hoerig.

¶ 3. Unfortunately, the prescribed medications Grycowski took to alleviate pain from his spinal injury began to interfere with his ability to stay awake and alert at work. In May 2009, Spahiu reported that on several occasions during the past four months she had found Grycowski sleeping at his work station. Spahiu reported that on these occasions, she would wake up Grycowski and tell him he could not sleep at work; Grycowski would reply that his inability to stay awake was due to the medication he was taking. Hoerig also observed Grycowski sleeping on duty on several occasions.

¶ 4. Grycowski attempted to alleviate the problem by changing his medications and by changing the times that he took his medications. He also explained to [499]*499Spahiu in June 2009 that, despite his problems with drowsiness, he preferred his current position over being transferred — an option he discussed with Milwaukee Police Department Health and Safety Coordinator Lieutenant Mercedes Cowan — because his current position allowed him the "least amount of discomfort."

¶ 5. Despite Grycowski's attempts to alleviate the problem, his on-the-job drowsiness persisted. On August 19, 2009, Spahiu noted, in a report titled, "In the matter of Idling and Loafing — EO. David Grycowski," that Grycowski had again fallen asleep on the job for at least the second time that week:

At approximately 9:24[ ]a.m., I approached EO. David Grycowski at his workstation and found him sleeping .... I woke [him] up... and I observed that his eyes were red. I informed EO. Grycowski that he was currently idling and loafing and that he would have to find a way to stay awake. I offered that he could go home sick, unpaid, if he so chose to but I was not ordering him to do so .... It should [also] be noted that on Monday, August 17, 2009, EO. Grycowski was found sleeping at his workstation several times throughout the day. Due to his inability to stay awake he was sent home, paid sick leave, 2.0 hours.

(Punctuation added.) Additionally, Lieutenant Cowan observed Grycowski sleeping at his desk on August 24, 2009.

¶ 6. Consequently, the Department scheduled a "fitness for duty" examination for Grycowski with Dr. Theodore Bonner. It did so pursuant to Department Rule 450.00, which provides:

Any member of the Department may be ordered to submit to an examination, at any time, to determine whether a member is physically, mentally, or emotion[500]*500ally fit for the proper performance of duties. A medical doctor, licensed clinical psychologist or a psychiatrist may conduct the aforementioned examination.

¶ 7. Dr. Bonner sent Lieutenant Cowan a preliminary report dated August 27, 2009, and a full report dated September 2, 2009,3 in which he advised that Grycowski was "permanently disabled from performing the job functions of a police officer, including limited duty assignments." (Punctuation added.) Dr. Bonner listed several reasons for Grycowski's incapacitation, including constant pain from his lumbar disc disease, anxiety attacks, depression, post-traumatic stress disorder, disturbed and fragmented sleep resulting from being sedated during the day, and untreated sleep apnea. Dr. Bonner further opined:

Mr. Grycowski is unable to function in any job which requires alertness and mental focus. He is also unable [501]*501to perform tasks, such as reading homicide reports, which exacerbate his post-traumatic stress disorder. In addition, he is unable to perform activities which require lifting over 15 pounds, bending, twisting, or prolonged sitting.

¶ 8. A few weeks later, Grycowski attended a meeting with Lieutenant Cowan to discuss Dr. Bonner's evaluation. Cowan told Grycowski that the Police Department would allow him to take leave under the federal FMLA so that he could continue his health insurance. She advised him that under the federal FMLA, he could take up to twelve weeks of medical leave. She also told him that if his treating doctor allowed him to work before the expiration of the twelve weeks, he could return to work and be assigned to duties consistent with his medical capabilities, as indicated by his physician. She explained that all the time he took off — with the exception of eight hours — would be unpaid, however, because he only had eight hours of paid leave available as of September 16, 2009. Grycowski was placed on unpaid FMLA leave for a period of three months.

¶ 9. On September 18, 2009, Hoerig issued a report outlining the details of Grycowski's FMLA leave. In portions of the report titled, "Charged With," "Incident or Citation #," and "Date & Time of Arrest," the report stated "N/A." (Punctuation omitted.) Similarly, in the portion of the report titled, "Department Rule Violated," the reported stated "N/A." The "Facts of Incident" portion provided:

[Grycowski] reported for a department ordered fitness for duty evaluation on August 26, 2009.

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Related

Bryan W. Massman v. City of Prescott
2020 WI App 3 (Court of Appeals of Wisconsin, 2019)
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Bluebook (online)
2011 WI App 112, 801 N.W.2d 466, 335 Wis. 2d 495, 17 Wage & Hour Cas.2d (BNA) 1502, 2011 Wisc. App. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milwaukee-police-assn-v-flynn-wisctapp-2011.