Metal Recycler on Hook for Bias Against Worker With Autistic Son

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Patrick Dorrian

A struggling scrap metal recycler in Milwaukee must pay nearly $300,000 in damages and legal fees to an employee who a jury found was fired in retaliation for seeking medical leave to care for her autistic son, the U.S. Court of Appeals for the Seventh Circuit ruled ( Wink v. Miller Compressing Co. , 2017 BL 5139, 7th Cir., No. 16-2336, 1/9/17 ).

The ruling involves a novel situation under the Family and Medical Leave Act in which a mother split her time between caring for her son and working from home to assist her employer, Alan C. Olson of Olson & Associates in New Berlin, Wis., said Jan. 9. He represented Tracy Wink in the case against Miller Compressing Co.

Wink and Miller had operated for about five months under an arrangement in which she worked from home two days a week so she could care for her son, who had been expelled from day care. Under the arrangement, Wink took unpaid, intermittent leave under the FMLA for those portions of her work-at-home days that she spent caring for her son. She was paid by Miller only for the hours that she actually worked.

Miller abruptly ended the arrangement when it decided, due to financial difficulties, to require all employees to work in the office full time. Wink was told about the change on a Friday, and it was effective the following Monday. She objected, explaining that she wouldn’t be able to find day care for her child on such short notice.

Wink went into work that Monday to confirm that she’d been unable to find day care, and a Miller human resources officer told her she would be fired if she didn’t stay and work a full day from the office. After Wink left to care for her son, she was fired.

That’s enough to support the jury’s finding of retaliation under the FMLA, the appeals court said in a Jan. 9 opinion.

“The best inference, or at least an inference that a reasonable jury could draw, is that Wink’s superiors were angry with her for requesting to be allowed to stay home (albeit working part of the day) two days a week, though she’d been doing that since February to the satisfaction of the employer,” Judge Richard A. Posner wrote.

HR Provided Bogus Information on Leave Rights

Posner said the human resources officer misinformed Wink about her rights under the FMLA, stating that the federal medical leave law only covers doctors’ appointments and therapy. The law expressly allows eligible workers to take up to 12 workweeks of leave to care for a sick child, he said.

The jury might have been swayed by the HR officer’s “phony line” about Wink’s FMLA rights and how it might have misled her, Posner said.

The appeals court also upheld the trial judge’s finding that Wink was entitled to a doubling of the jury’s $60,000 compensatory damages award under the FMLA’s liquidated damages provision. Miller didn’t show that it acted in good faith in holding Wink to its new rule requiring employees to work solely from the office despite her special circumstances, the court said.

Wink’s win also includes separate awards of $1,800 on claims for breach of her employment contract, which entitled her to three weeks’ advance notice of discharge, and for nonpayment of wages for the three weeks she should have at least been allowed to work under that agreement.

FMLA Served Its Purpose

Olson told Bloomberg BNA that the FMLA here served one of the precise purposes for which it was enacted: to enable a mother to take time off to care for a disabled child.

Although the FMLA doesn’t cover employees working from home, the arrangement between Wink and Miller carefully separated out the time she was working from home from the time she was providing day care for her son, Olson said.

“The irony is” that in the end, Miller held it against Wink for trying to juggle the business’s need to have her work the hours she did from home with her need to care for her child, Olson said. Wink could have taken full FMLA leave for the time she needed to spend with her son and not done any work for Miller during that time, he said.

With more and more people working from home on a regular basis, there are going to be more work-from-home arrangements that also include the provision of leave time under the FMLA, Olson said. Workers in such situations are basically “donning and doffing their FMLA hats” when they break to care for an ill or disabled family member, he said.

Attorneys’ Fees Ruling Overturned

Although it otherwise upheld the trial judge’s amended judgment in favor of Wink, the appeals court found the lower court erred when it awarded her only $103,216 of the $164,586 she requested. The trial judge cut Wink’s request because the jury found against her claim that Miller also interfered with her FMLA rights.

FMLA interference and retaliation claims are very similar, and Wink’s two claims under the statute were “based largely on the same facts,” Posner said. Thus, her lawyers acted prudently in pressing both theories and the additional cost of presenting the losing interference argument was marginal and didn’t provide a basis for reducing Wink’s entitlement to full attorneys’ fees, he said.

Olson said Wink also is entitled to recover additional fees and costs incurred in defending the judgment on appeal.

Miller’s lawyers didn’t respond Jan. 9 to Bloomberg BNA’s request for comment.

Judges Kenneth F. Ripple and Ilana Diamond Rovner joined the opinion.

Susan Lorenc and Ryan J. Gehbauer of Thompson Coburn LLC in Chicago represented Miller.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Christopher Opfer at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law