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Goelzer v. Sheboygan County

May 12, 2010


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 C 451-Charles N. Clevert, Jr., Chief Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

After two decades of employment with her county government, Dorothy Goelzer was fired from her job. Her supervisor informed her of the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act (FMLA). This leave did not mark the first time Goelzer was away from work on FMLA leave, as Goelzer had taken a significant amount of authorized FMLA leave during the four preceding years to deal with her own health issues and those of her mother and husband. After she lost her job, Goelzer brought this suit and alleged that her employer had interfered with her right to reinstatement under the FMLA and had retaliated against her for taking FMLA leave. The defendants contend that her supervisor simply decided to hire another person with a larger skill set. The district court agreed with the defendants and granted summary judgment against Goelzer. We, how-ever, conclude that Goelzer has marshaled enough evidence for this case to reach a trier of fact, including comments suggesting her supervisor's dissatisfaction with her use of FMLA leave, her positive performance reviews, and the timing of her termination. Therefore, we reverse the entry of summary judgment against her.


Sheboygan County, Wisconsin hired Dorothy Goelzer in 1986 to serve as a Clerk Typist in its office of the Register of Deeds. Two years later, Goelzer applied for the position of Administrative Assistant to the County Board Chairperson and received the job. Goelzer's boss worked part-time and was only present intermittently in the office.

In 1997, the County Board enacted an ordinance that created a full-time Administrative Coordinator position. The Board hired a new Administrative Coordinator the next year, and Goelzer's position was converted to that of Administrative Assistant to the County Administrative Coordinator. The Board hired Adam Payne as its Administrative Coordinator in January 1999. Goelzer became the administrative assistant to Payne, who unlike her previous boss was in the office full-time, and Goelzer also assisted the County Board Chairperson.

Payne consistently gave Goelzer good performance reviews. For the 2000 year, Payne rated Goelzer with an overall performance score of 3.8 on a scale of zero to five, and Goelzer received a merit pay increase of 1.5%. Payne commented in that year's performance evaluation that Goelzer was "rarely absent," and he gave her a 4.0 in the "attendance" category. Payne gave her a 4.0 for attendance the following year and noted she "is rarely absent (36 hours of sick leave in 2001)." Goelzer received an overall rating of 3.72 in that evaluation and again received a merit increase.

Goelzer began to have significant health issues in 2002. She had eye surgery in July and took approximately a month of FMLA leave during her surgery and recovery. She also had multiple doctors' appointments in the months before and after her surgery. All in all, she used 312.50 hours of sick leave in 2002, the equivalent of nearly eight forty-hour weeks. Payne wrote in Goelzer's 2002 performance evaluation that, "[t]hough Dorothy has had an excellent record in the past, (36 hours of sick leave in 2001), she utilized 312 hours or 39 days of sick leave in 2002."

Goelzer continued to have health problems in 2003. She had another eye surgery that year and took two weeks of FMLA leave as a result. She also had many doctors' appointments throughout the year. Goelzer took time off on thirty-two different days during 2003 for her health issues and used a total of 176.50 hours of leave. Payne commented on Goelzer's use of sick leave again in that year's performance evaluation, stating: "Dorothy utilized 176.50 hours or 22 days of sick leave in 2003." He gave her an overall rating of 3.36, with a 3.5 in the attendance category. He did not award her a merit pay increase. Goelzer disagreed with some of the reasons Payne gave for not awarding her a merit increase, and she wrote Payne a memorandum detailing her position. Payne responded on February 5, 2004 in a memorandum to Goelzer that said in part:

On page 3 of 4, you have denoted goals you believe to have accomplished. As we discussed during your performance review and I have noted in your annual performance review, your perspective is different than mine.

I am very pleased that you understand the importance of having a user-friendly filing system in place. As you mentioned, you were out of the office having eye surgery in 2002 and 2003. In fact, the past two years, use of sick leave and vacation combined, you were out of the office 113 days. As the only support person in the office, this has presented challenges in the functionality and duties associated with the office.

Goelzer used 94 hours of sick leave in 2004. She received a merit increase of 1.5% after her 2004 evaluation. The next year, Goelzer's health was stable, but her mother's health was not. Goelzer took FMLA leave on nine days in 2004 for appointments related to her mother or husband, and her 2005 FMLA applications included requests for intermittent leave to care for her mother. Goelzer received a 1.25% merit increase after 2005. Goelzer stated in an affidavit that when she asked why she did not receive a higher merit pay increase, Payne responded that she had missed a lot of time at work due to appointments with her mother.

Goelzer learned in 2006 that she would need foot surgery that year. On May 10, 2006, Goelzer submitted an FMLA leave request for time away from work from September 22, 2006 to November 20, 2006 for her foot surgery and recovery. At Payne's request, Goelzer provided a medical certification for the foot surgery to Human Resources Director Michael Collard on June 1, 2006. Collard wrote directly to Goelzer's doctor five days later and asked whether Goelzer could return to light duty office work before November 19, 2006, and if so, when. Goelzer's doctor responded that ...

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