Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—W.D. Wis.: Former 911 dispatcher’s post-trial motions denied following employer’s success on FMLA claim, (Dec 12, 2025)

By Kathleen Kapusta, J.D.

The parties disputed whether the evidence admitted at trial supported the jury verdict and whether a new trial was necessary.

Evidence presented during a two-day trial was sufficient to support the jury’s finding that a county employer would have declined to rehire a former 911 dispatcher based on her attendance and would have terminated her as an on-call dispatcher regardless of her past FMLA use, a federal court in Wisconsin ruled, denying the employee’s motion for judgment as a matter of law. Nor was she entitled to a new trial based on her assertion the jury instructions were unfair (Young v. Monroe County, No.23-cv-729-amb (W.D. Wis. Dec. 8, 2025)).

Jury verdict. The former 911 dispatcher sued her employer under the ADA and FMLA. The court dismissed her FMLA interference and ADA claims but allowed her retaliation claim to proceed to trial. Although the jury found she proved her use of FMLA leave was a motivating factor in the county’s decisions not to re-hire her as a full-time dispatcher and to terminate her employment as an on-call dispatcher, it also found the county proved it would have taken the same employment actions even if she had not used FMLA leave.

After the court entered judgment for the county, the employee moved for judgment as a matter of law and, alternatively, for a new trial.

Judgment as a matter of law. The employee first argued that the jury heard insufficient evidence to find the county would have taken the same adverse actions against her even if she had not used FMLA leave. Claiming her former supervisor’s belief she abused FMLA motivated his decision not to rehire her as a full-time dispatcher or to retain her as an on-call dispatcher, she pointed to an email from him in which he said he “had serious doubts about [her] reliability and dependability and noted that she had been “absent so many times [over the previous two years] that” she missed the equivalent of six months of work and that it had been “mostly miss” since her return to on-call status.

Empty chair. The supervisor also testified that the employee’s absences in 2022 had created a situation that was “absolutely stupid;” that “[a]nybody that has a work ethic would know they should have been fired a long time ago instead of being an empty chair;” that he did not “care if it’s FMLA or just regular sick time. If you take so much time off, time off is time off,” and while FMLA is “protected,” over a third of the employee’s absences “were uncovered days.” This evidence, said the court, supported the jury’s finding the employee’s use of FMLA leave was a motivating factor in the county’s decisions.

Same action. It did not, however, negate other evidence supporting the jury’s additional finding that the county would have taken the same adverse actions regardless of the employee’s use of FMLA leave. This included evidence the employee voluntarily quitting her full-time position in December 2021 and failing to provide the requisite three weeks’ notice and that after returning to on-call status, she signed up to work 11 shifts in January and February 2022 but worked only one and then left after working only 1.25 hours to help with a family business during a time the dispatch center was under stress from a higher-than-normal volume of calls.

There was also evidence her absences and late shift swaps caused hardship on her coworkers and the call center. The jury further reviewed a draft plan her supervisor was developing for her before her termination in which he emphasized her significant absences and parsed out her 635 hours of non-FMLA leave over two years along with a coworker’s complaint about her frequent call outs. In addition, the HR director testified that the employee was ineligible for rehire as a full-time dispatcher after giving insufficient notice of her resignation from her full-time position and that she was not entitled to FMLA leave after resigning from that position and returning to on-call, part-time status. This evidence, the court observed, sufficiently supported the jury’s finding that the county would have declined to rehire her as a full-time dispatcher and would have terminated her as an on-call dispatcher regardless of her past use of FMLA leave.

Motion for a new trial. As to her motion for a new trial, she argued that the court failed to give the Seventh Circuit’s mixed-motive instruction. At trial, the court gave Seventh Circuit Civil Jury Instruction 10.1, Nature of FMLA Claim, and Instruction 10.4, Elements of FMLA Retaliation Claim, as requested by the employee. In her motion for a new trial, she argued that the court should have given the mixed-motive instruction because it was supported by the evidence and would have allowed her to recover her costs and attorneys’ fees.

Key difference. The court pointed out that Instruction 10.4 and the mixed-motive instruction have significant overlap. As relevant here, they differ in that Instruction 10.4 directs the jury to find for the defendant when it proves by a preponderance of the evidence that it would have taken the same adverse employment action regardless of any motivating factor while the mixed motive instruction directs the jury to enter a verdict for the plaintiff in such a case, but not to award damages.

Waiver. However, the court observed, the employee waived this argument because she did not request the mixed motive instruction. And while she argued that a court can consider a plain error in the jury instructions even if the party did not object, she did not explain how the instruction that was given was clearly erroneous and the court did not see any plain error. The one difference between the instruction given and the mixed-motive instruction would not have affected the jury’s findings on the substance of her claims, said the court, especially in light of special interrogatories it posed that directedly asked the jury to make findings as to motivating factor and other reasons for taking adverse employment actions.

And even had she received the mixed-motive instruction and gotten the affirmative verdict she contemplated, the court pointed out that it could not have awarded the equitable relief she sought. Though she argued that she could have sought costs and attorneys’ fees had the jury entered a partial verdict in her favor, the FMLA “provides no relief unless the plaintiff can prove that [she] was prejudiced by the violation,” and the jury found the county would have terminated or declined to re-hire her irrespective of her use of FMLA leave.

Finally, as to the cases she cited in support of her position, the court found they “stand for the general proposition that a plaintiff may pursue a mixed motive theory, but they do not speak to whether the jury instructions were prejudicial to plaintiff in this case.” Accordingly, the court also denied her motion for a new trial.

The case is No.23-cv-729-amb.

Judge: Boor, A.

Attorneys: Attorneys: Colin B. Good (Hawks Quindel.) for Amanda J. Young. Laurie J. McLeroy (Von Briesen & Purtell) for Monroe County.

Companies: Monroe County, Wisconsin

Cases: EmployeeLeave Discharge EvidenceDiscovery RemediesDamages Procedure WisconsinNews