Felix v. Wis. Dep't of Transp.
| Decision Date | 06 July 2016 |
| Docket Number | No. 15-2047,15-2047 |
| Citation | 32 A.D. Cases 1576,828 F.3d 560 |
| Parties | Eileen M. Felix, Plaintiff–Appellant, v. Wisconsin Department of Transportation, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jesse Dill, Attorney, Walcheske & Luzi, LLC, Brookfield, WI, for Plaintiff–Appellant.
Jody J. Schmelzer, Attorney, Office of the Attorney General, Wisconsin Department
of Justice, Madison, WI, for Defendant–Appellee.
Before Wood, Chief Judge, Rovner, Circuit Judge, and Blakey, District Judge.*
, Circuit Judge.
Eileen Felix sued her former employer, the Wisconsin Department of Transportation, under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. ,
contending that she was discharged solely because of an anxiety disorder and related disabilities. The district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others. Felix v. Wis. Dep't of Transp. , 104 F.Supp.3d 945 (E.D. Wis. 2015). We affirm.
Eileen Felix suffers from a variety of mental health disabilities, including post-traumatic stress disorder
(“PTSD”), major depressive disorder, anxiety, obsessive compulsive disorder, and a medical phobia. For ease of reference, and because her PTSD and anxiety disability appear to be the conditions most relevant to the facts of this case, we will refer to her disabilities collectively as an anxiety disorder. She manages the symptoms of her disorder by taking prescribed medication and attending counseling and therapy sessions.
Felix was employed by the Wisconsin Department of Transportation (“WisDOT”) from 1998 to 2013 in the Division of Motor Vehicles (“DMV”) customer service facility in Appleton, Wisconsin. At the time of her discharge in 2013, she held the position of DMV Field Agent Examiner—Advanced. Her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and performing a variety of duties behind the counter at the DMV office, including processing paperwork for vehicle and driver's licenses and other DMV documentation and collecting the fees associated with these transactions. She was regarded as a good employee overall: “she was punctual, reliable, friendly with customers, and patient with new drivers.” R. 26 at 4. She excelled in administering road tests.
The one area in which Felix tended not to meet expectations was in financial accountability. She would occasionally collect the wrong fee amount from a customer or key in the wrong amount in recording a transaction, accept an unsigned or undated check, or make an error in tallying customer payments that would result in discrepancies between her record-keeping and the amount actually present in her cash register at the close of business. Prior to 2011, her performance in this area was rated unsatisfactory in seven annual reviews, but her performance overall was nonetheless deemed satisfactory. In 2011, however, a rule change precluded an overall rating of satisfactory if the employee did not meet expectations in certain specified areas, including financial accountability. Because WisDOT determined that Felix did not meet financial accountability performance standards in 2011, she was given an overall evaluation of unsatisfactory. Felix was placed on probation from April through September 2012 on this basis, and she received an unsatisfactory evaluation at the end of that period when her difficulties persisted. Her performance improved during a consecutive three-month probationary period that ended in December 2012. But her performance evaluation at the end of the first quarter in 2013 reflected renewed problems. Under WisDOT's procedures, this called for the commencement of a final performance improvement plan which, if Felix did not complete successfully, would result in her discharge. Felix contacted WisDOT's human resources director, Randy Sarver, on both April 17 and 18, 2013, regarding her evaluation. She was concerned about the evaluation and the possibility that she was at risk of losing her job.
Prior to April 18, Felix had experienced a number of panic attacks at work, but typically not in front of others and not in the public areas of the office. One exception was an attack that occurred on June 19, 2012, after a supervisor informed her that her cash drawer was missing ten dollars and a check. She was noticeably upset, and reported to a supervisor that she was having difficulty breathing and holding back tears and needed to leave work. She was then absent from work for the remainder of the week. It was at that time that she first apprised her employer that she suffered from an anxiety-related disorder. But in general, if Felix felt an attack coming on, she would inform her supervisor that she needed to retreat to the restroom for 15 minutes and do some breathing exercises, after which she could return to her station and continue working.
Felix had also explored the possibility of a transfer to another WisDOT facility. She requested a transfer to the Eau Claire DMV facility in or around June 2012. But because she was subject to a performance improvement plan due to her unsatisfactory performance, she was deemed ineligible for a transfer at that time. She later inquired about the possibility of a medical transfer as an accommodation to her disability, but according to WisDOT, she never followed through on the inquiry by completing and submitting the appropriate paperwork.
On the morning of April 18, 2013, a coworker known by the nickname “Ace” came into Felix's work area at the DMV to look through some reference materials that were stored on a shelf. Ace bent over while looking through the reference materials, and when she straightened up at the conclusion of her search, static electricity caused strands of her long hair to cling to Felix's person. As Ace left the area, Felix felt a panic attack coming on. She went to her supervisor, Cliff Ehlert, and told him that she needed to visit the restroom in order to calm down. Ehlert told her to take all the time she needed.
About 30 minutes later, Ehlert heard muffled screaming coming from the public lobby of the office. As he was rising from his desk to investigate, an employee told him that Felix had fallen down. When Ehlert arrived in the lobby area, he saw Felix on the floor behind one of the work counters. She was lying on her side, clutching her cell phone, and crying out. Ehlert noticed that she had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly. As Felix struggled to speak through her cries, Ehlert could only make out some of what she was saying. He would later recall her saying that “[y]ou all hate me ... they all hate you ... everybody hates you” and “[t]hey think you're crazy ... you all think I'm crazy ... they want to get rid of you.” R. 36 at 55 ¶ 89. She also said, “I want my insurance ... they will take your insurance ... don't let them take your insurance ...” and “I need to get my money—don't take my money ... they don't trust you ... they steal your money.” R. 36 at 55 ¶ 89. At one point, Felix rolled onto her back and began kicking her legs. Ehlert then noticed that she also had scratches and cuts on her left wrist. Ehlert heard Felix say, “They're too dull ... the knives were too dull” and “God let me die ... I just want to die.” R. 36 at 56 ¶ 91. Felix would later aver that at no time had she ever been suicidal, including during the April 18th incident.
Emergency personnel were summoned to the DMV by an employee's 9-1-1 call. A paramedic and a co-worker eventually succeeded in calming Felix down and moving her to a break room. She was ultimately transported to the hospital. Felix's co-workers were shaken and concerned by the incident. Ehlert subsequently brought in a counselor to meet with staff members.
On the following day, in response to an email inquiry from regional manager Don Genin, Sarver indicated that Felix would have to undergo an independent medical examination (“IME”) in order to determine whether she could return to work. Sarver wanted the IME to consider both her own safety and the safety of others in the workplace. Ehlert, as Felix's supervisor, was concerned about the fact that Felix's road-test responsibilities regularly placed her alone in automobiles with 16-year-old drivers seeking their first licenses. He wanted to be sure that Felix would not have another panic attack during one of these tests. Sarver thus notified Felix by letter on April 25, 2013, that she would be required to participate in a fitness-for-duty evaluation as a result of the events of April 18, and that she would not be able to return to work until this evaluation had been conducted and the results reviewed by management personnel.1 At no time between the April 18th episode and Felix's subsequent discharge did WisDOT permit Felix to return to work.
Meanwhile, on April 19, Ehlert and Genin signed an evaluation officially deeming Felix's performance during the preceding three-month performance improvement period to be unsatisfactory. They were aware, obviously, that Felix was out of the office, but their evaluation was due to human resources and they did not know when Felix would return. In view of the negative rating, Felix thereafter would be subject to a final performance improvement plan if and when she returned to work.
Ehlert, in the meantime, filled out a Family & Medical Leave Act (“FMLA”) leave request on Felix's behalf several days after...
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