Tracy L. Wink v. Miller Compressing Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-2336, 16-2339
TRACY L. WINK,
Plaintiff-Appellee/Cross-Appellant,
v.
M ILLER C OMPRESSING C OMPANY ,
Defendant-Appellant/Cross-Appellee.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-cv-00367-NJ — Nancy Joseph, Magistrate Judge.
____________________
A RGUED DECEMBER 1, 2016 — DECIDED J ANUARY 9, 2017
____________________
Before POSNER , R IPPLE, and R OVNER , Circuit Judges.
POSNER , Circuit Judge. In this suit by the plaintiff, Wink,
against her former employer, Miller Compressing Company,
a three-day jury trial ended with a verdict in favor of Wink
on three of her claims: retaliation in violation of the Family
and Medical Leave Act (FMLA), violation of Wis. Stat.
§ 109.03 (a wages statute), and breach of contract. But the ju-
ry returned a verdict for Miller on Wink’s fourth claim,
which was that Miller had interfered with her rights under

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2 Nos. 16-2336, 16-2339
the FMLA. Miller moved for judgment as a matter of law on
the ground that no reasonable jury could have found enough
evidence to justify its verdict. The district judge denied the
motion, precipitating this appeal by Miller. Wink has cross-
appealed, seeking a higher award of attorneys’ fees for her
successful suit.
Wink had been employed in Miller’s order-processing
department since 1999 (order processing includes paper-
work, which was what Wink did, and other procedures in-
volved in the distribution of products, such as recycled scrap
metal, which Miller sells), and Miller had granted Wink’s
request in July 2011 for intermittent FMLA leave through
July 2012 to take her autistic two-year-old son to medical
appointments and therapy. FMLA entitles eligible employ-
ees to take up to 12 workweeks of leave during any 12-
month period for qualifying reasons, one of which is to care
for a child who has a serious health condition. 29 U.S.C.
§§ 2612(a)(1), (a)(1)(C).
In February 2012, Wink’s son was expelled from day
care, which he had been attending for two days a week, be-
cause of his aggressive behavior, a product of his autism.
Wink asked her employer’s human resources department to
grant her FMLA leave to enable her to work from home two
days a week, which would give her enough free time to take
care of the child. (Wink’s mother was able to watch the tod-
dler the remaining three workdays.) FMLA does not cover
working at home, Taylor-Novotny v. Health Alliance Medical
Plans, Inc., 772 F.3d 478, 498 (7th Cir. 2014), but working at
home would enable Wink to spend several hours a day car-
ing for her son—indeed she might have been entitled to two
full days of FMLA leave per week to care for him at home.

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Nos. 16-2336, 16-2339 3
Human resources agreed to a hybrid arrangement that
would require Wink to inform the company of the number
of hours she worked each day at home, a computation that
would be made by subtracting from the normal eight-hour
workday the hours in which she was taking care of her
son—hours of FMLA leave time for which the company
would not be required to compensate her.
Although Wink was an experienced and highly valued
employee, in the summer of 2012 the Miller company, expe-
riencing serious financial problems, decided that none of its
employees would be allowed to work at home during the
week; all of them would be required to work a full 5-day 40-
hour week on the company’s premises. On a Friday in July
the company gave Wink an ultimatum: she had to show up
on the coming Monday and work eight hours a day (8 a.m.
to 4 p.m.) five days that week, as well as in all subsequent
weeks, in the office. When told this, she started to cry and
said she “knew that it was going to be nearly impossible for
[her] to find day care over the weekend by Monday.” The
jury was entitled to believe both that she had said that and
that it was true, and that the reason she needed day care—
her son’s autism—was also true, but that if she couldn’t find
a day-care service willing to take him (because he’s such a
difficult child) at a price she could afford, she’d have to pro-
vide the care, or at least some of it (maybe she could obtain
and afford very limited day care, or get help from family),
herself, when the child was awake and hyperactive.
But the human resources officer to whom she explained
all this told her falsely that the FMLA covers leave from
work only for doctors’ appointments and therapy. That was
on Friday; Wink returned to the office on Monday morning

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4 Nos. 16-2336, 16-2339
and explained that she’d been unable to find day care for her
son over the weekend. The human resources officer told her
that the first day she didn’t work in the office, full time,
she’d be considered a “voluntary quit.” Because Wink had to
return home to take care of her child, not having been able to
obtain day care for him over the weekend, she left the office,
never to return to work for Miller. For that same Monday,
shortly after she’d gone home to take care of her autistic
child, the human resources officer ordered Wink’s termina-
tion processed “today” (i.e., Monday) and that it reflect that
her last day of work had been the previous Friday.
The Family and Medical Leave Act entitled Wink to take
leave necessary to take care of a very difficult (at times vio-
lent) sick child. 29 U.S.C. § 2612(a)(1), (a)(1)(C); 29 C.F.R.
§ 825.124. Wink proved, and the jury determined, that the
company had retaliated against her for asserting her FMLA
right to take leave necessary to enable her to take care of her
sick child for several hours two days a week. As she was a
valued and experienced employee who had worked for the
company at home two days a week since February without
the company’s complaining, the company had no compel-
ling reason to fire her. Maybe, because of its financial trou-
bles, it would have had to lower her wage, on the plausible
supposition that an employee is likely to do less work for
her employer at home than in the office—in Wink’s case if
only because her child might take more than the allotted
time (two hours a day) to be cared for by her. But that is not
argued.
The best inference, or at least an inference that a reasona-
ble jury could draw, was that Wink’s superiors were angry
with her for requesting to be allowed to stay home (albeit

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Nos. 16-2336, 16-2339 5
working part of the day) two days a week, though she’d
been doing that since February to the satisfaction of the em-
ployer. Hence the phony line that FMLA can’t be used to au-
thorize leave to take care of a very sick child even when ob-
taining day care for the child is difficult or even impossible
because of the child’s particular ailment—autism that in this
case manifested itself at times in violent behavior. The
FMLA is explicit that an eligible employee (which Wink is
conceded to have been) is entitled to take up to 12 work-
weeks of unpaid leave per year in order to care for a family
member with a serious health condition, including a child
with such a condition. 29 U.S.C. §§ 2611(11), 2612(a)(1)(C).
In addition to actual damages based on the employee’s
loss of wages, the violation of this right entitles the employee
to “liquidated damages equal to the sum of the amount” of
the loss plus interest, unless the employer can show that it
acted in good faith. 29 U.S.C. § 2617(a)(1)(A)(iii). Because the
liquidated damages are thus equal to the amount of damag-
es actually sustained, the employee can receive twice his or
her actual damages. See, e.g., Shea v. Galaxie Lumber & Con-
struction Company, Ltd., 152 F.3d 729, 733 (7th Cir. 1998); Avi-
tia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1223 (7th
Cir. 1995). Miller argues that it acted in good faith, and
therefore shouldn’t have to pay double damages, but the dis-
trict court correctly rejected that argument. Human re-
sources’ reaction to Wink’s plight could reasonably be found
to be retaliation against her for asking for FMLA leave for
anything other than a doctor’s appointment or therapy (it’s
not clear what exactly human resources meant by “therapy,”
but presumably it meant professional therapy rather than a
mother’s care). Wink’s employment contract with Miller
provided that a termination of it “without a reason arising

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6 Nos. 16-2336, 16-2339
from Employee’s own action or inaction” was a termination
without cause that obligated Miller either to give her three
weeks’ advance notice of termination or continue paying her
wages for the three weeks. The jury was within its rights in
finding that Miller had fired Wink without cause, or advance
notice, and therefore had broken its contract with her and
violated the Wisconsin wage statute, Wis. Stat. § 109.03, by
not paying her three weeks of wages. That action by Miller
gave Wink a further right to damages beyond that created
by the FMLA.
One issue remains to be considered. The FMLA entitles a
winning plaintiff to an award of attorneys’ fees. 29 U.S.C.
§ 2617(a)(3). A presumptive award is calculated by multiply-
ing the hourly fees charged by the plaintiffs’ attorneys by the
number of hours they had worked on the case. But adjust-
ments are common, and in this case the district judge decid-
ed to reduce the award of attorneys’ fees to Wink by 20 per-
cent because she had failed to persuade the jury to find that
the defendant had interfered with her FMLA rights, which
as mentioned earlier is a separate violation from retaliation.
Wink’s cross-appeal challenges the district judge’s ruling
persuasively. It’s not as if her lawyers had dropped the ball
in arguing that Miller had not only retaliated against her for
claiming her FMLA rights but had also interfered with her
efforts to assert them. The two FMLA breaches are very simi-
lar, so it was prudent for the lawyers to press both in order
to reduce the likelihood of a total defeat. And because the
claims were so similar and based largely on the same facts,
the marginal cost of presenting the interference claim to the
jury was slight.

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Nos. 16-2336, 16-2339 7
We conclude that the judgment of the district court must
be affirmed except for the judge’s 20 percent reduction in the
attorneys’ fees awarded the plaintiff; we remand that ruling
with directions to rescind it and award the plaintiff her full
attorneys’ fees.

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