Webster v. Milwaukee County

731 F.Supp.2d 837

Dewitt WEBSTER, Plaintiff,

v.MILWAUKEE COUNTY, Defendant.

Case No. 08-C-481.

United States District Court, E.D. Wisconsin.

July 21, 2010.

Christopher M. Kloth, Cross Law Firm SC, Milwaukee, WI, for Plaintiff.

Molly J. Zillig, Roy L. Williams, Milwaukee County Corporation Counsel, Milwaukee, WI, for Defendant.

DECISION AND ORDER DENYING THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT

AARON E. GOODSTEIN, United States Magistrate Judge.

I. PROCEDURAL AND FACTUAL HISTORY

Dewitt Webster ("Webster") was terminated from his position with Milwaukee County as a Highway Maintenance Worker I on September 26, 2006. (Docket No. 22 at 2.) This termination was the culminationof a lengthy progressive discipline against Webster for what the Milwaukee County Personnel Review Board ("PRB") determined were his repeated failures to comply with the County's attendance policy. The first relevant instance occurred on June 30, 2005, for which Webster was counseled. (Docket No. 26-39 at 14.) Webster received a warning for a second allegedly unauthorized absence occurring on July 7, 2005. (Docket No. 26-39 at 15.) A third allegedly unauthorized absence on October 26, 2005 resulted in Webster being issued a written reprimand. (Docket No. 26-39 at 15-16.) When Webster again was absent allegedly without authorization on December 29, 2005, he was suspended for one day. (Docket No. 26-39 at 16.) A three-day suspension resulted from Webster's fifth alleged unauthorized absence on February 22, 2006. (Docket No. 26-39 at 16.) Webster's allegedly unauthorized absence on March 29, 2006 resulted in a five-day suspension, (Docket No. 26-39 at 16-17), and a ten-day suspension resulted from Webster's seventh allegedly unauthorized absence on April 3, 2006, (Docket No. 26-39 at 17). Finally, on April 5, 2006, when Webster was again allegedly absent without proper authorization for the eighth time, Webster was suspended pending termination. (Docket No. 26-39 at 17-18.) Webster challenged his termination with the PRB and he appeared at a PRB hearing with two attorneys. (Docket No. 22 at 4.) Following the presentation of evidence, which included the testimony and cross-examination of witnesses, the PRB issued written findings of fact and conclusions of law sustaining Webster's termination, (Docket No. 25-1, 25-2.)

However, what is crucial to this dispute and is the reason why this federal lawsuit was commenced is the fact that, prior to each of these alleged absences, Webster had requested intermittent leave under the Family and Medical Leave Act ("FMLA") of 1993, 29 U.S.C. § 2601 et seq., in order to care for his seriously ill daughter. (Docket No. 1.) On January 16, 2005, Webster submitted a request for intermittent FMLA leave between February 16, 2005 and December 31, 2005, which Webster alleges was approved by the county. (Docket No. 22 at 2.) On January 30, 2006, Webster again submitted a request for intermittent FMLA leave between February 1, 2006 and December 31, 2006, which he again alleges was approved by the county. (Docket No. 22 at 2.)

Both parties have moved for summary judgment. (Docket Nos. 23, 26.) The pleadings on these motions are closed and the matters are ready for resolution.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment will be granted when there are no genuine issues as to material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As provided under Rule 56(c), only "genuine" issues of "material" fact will defeat an otherwise "proper" motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those facts which, under the governing substantive law, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of such material facts is "genuine" if the evidence is such that a reasonable trier of fact could find in favor of the nonmoving party. Id.

The movant bears the burden to establish that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The movingparty satisfies its burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988); Spring v. Sheboygan Area School Dist., 865 F.2d 883, 886 (7th Cir.1989). Further, "on summary judgment, a court can neither make a credibility determination nor choose between competing interests." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.1993).

If the moving party meets its burden, the nonmoving party then has the burden to present specific facts showing that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. MILWAUKEE COUNTY'S MOTION FOR SUMMARY JUDGMENT

Milwaukee County contends that summary judgment in its favor is appropriate because all of Webster's claims are barred by the doctrine of issue preclusion. Specifically, Milwaukee County contends that the propriety of Webster's termination was already adjudicated by the quasi-judicial PRB, and Webster is simply seeking to re-litigate that issue in this court. (Docket No. 24 at 11.)

The preclusion doctrines have confused generations of law students and attorneys, and often perplexed the courts. Contributing to much of the confusion surrounding these doctrines is that "varying and, at times, seemingly conflicting terminology" has frequently been used in discussing these doctrines. Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Generally speaking, there are two separate doctrines which control the preclusive effect a former adjudication should receive: issue preclusion and claim preclusion. Both of these doctrines fall under the broad heading of res judicata, Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 77, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), although there are many instances where the term res judicata has been utilized to refer to only claim preclusion, see, e.g., McDonald v. West Branch, 466 U.S. 284, 287, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). Similarly, issue preclusion has often gone by the alternative name of collateral estoppel. The Wisconsin Supreme Court, following the lead of the Restatement (Second) of Judgments, has adopted the phrases issue preclusion and claim preclusion as the preferred terms to replace the antiquated phrases collateral estoppel and res judicata (when used to refer only to claim preclusion). See Kruckenberg v. Harvey, 2005 WI 43, ¶ 18 n. 11, 279 Wis.2d 520, 694 N.W.2d 879 (citing Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 232, 601 N.W.2d 627, 636 (1999) in turn citing Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723 (1995)).

Issue preclusion addresses the effect of a prior judgment on the ability to re-litigate an identical issue of law or fact in a subsequent action. Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550-51, 525 N.W.2d 723 (1995). In order for issue preclusion to be a potential limit on subsequent litigation, the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment. Town of Delafield v. Winkelman, 2004 WI 17, P34, 269 Wis.2d 109, 675 N.W.2d 470; Michelle T. v. Crozier, 173 Wis.2d 681, 687, 495 N.W.2d 327 (1993). If the issue actually has been litigated and is necessaryto the judgment, the circuit court must then conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand. Paige K.B. [ v. Steven G.B.], 226 Wis.2d [210,] 220-21 [ (1999) ]. For this analysis, the circuit court considers any of the following factors that are relevant to its decision: (1) whether the party against whom preclusion is sought could have obtained review of the judgment; (2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law; (3) whether there are apt to be significant differences in the quality or extensiveness of the two proceedings such that relitigation of the issue is warranted; (4) whether the burden of persuasion has shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and (5) whether matters of public policy or individual circumstances would render the application of issue preclusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation. Michelle T., 173 Wis.2d at 688-89, 495 N.W.2d 327 (citing Restatement (Second) of Judgments § 28 (1980)). Some of these factors are decided as questions of law, e.g., factors 1, 2 and 4. Paige K.B., 226 Wis.2d at 223-24, 594 N.W.2d 370. Other factors require the circuit court to exercise its discretion, for example, factors 3 and 5. Id. at 225, 594 N.W.2d 370.

Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶ 17, 281 Wis.2d 448, 699 N.W.2d 54.

Thus, in order to conclude that issue preclusion bars the plaintiff's claim in the present action, the court must answer all of the following questions in the affirmative. First, under the FMLA, may prior administrative agency decisions ever bar subsequent litigation of an FMLA claim under the doctrine of issue preclusion? Second, was the issue actually...