Whitaker v. Wis. Dep't of Health Servs.
| Decision Date | 27 February 2017 |
| Docket Number | No. 16-1807,16-1807 |
| Citation | 849 F.3d 681 |
| Parties | Joyce WHITAKER, Plaintiff–Appellant, v. WISCONSIN DEPARTMENT OF HEALTH SERVICES, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James A. Walcheske, Attorney, Walcheske & Luzi, LLC, Brookfield, WI, for Plaintiff–Appellant.
Jennifer L. Vandermeuse, Attorney, Office of the Attorney General, Madison, WI, for Defendant–Appellee.
Before Bauer, Flaum, and Hamilton, Circuit Judges.
Plaintiff Joyce Whitaker worked for the Wisconsin Department of Health Services. The Department fired Whitaker when she did not return to work after exhausting her unpaid statutory and contractual medical leave. Whitaker sued, claiming that the Department failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act. The district court granted summary judgment in favor of the Department on several grounds. We agree with the district court that Whitaker failed to establish that she was an "otherwise qualified" employee, as required by the Rehabilitation Act, and we affirm the grant of summary judgment.
On appeal from a grant of summary judgment, we accept as true the evidence offered by the non-moving party, and we draw all reasonable inferences in that party's favor. Zerante v. DeLuca , 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff Joyce Whitaker first started working for Milwaukee County in 2001. She initially worked as a corrections officer, but after suffering a back injury in 2005, she transitioned to other positions with the County. She ultimately became an economic support specialist in the Income Maintenance Program, which manages Milwaukee's applications for public assistance. Whitaker's responsibilities included processing applications for benefits, answering phone calls, and general case management.
In 2009, the Wisconsin legislature directed the Wisconsin Department of Health Services to assume administration of Milwaukee County's public assistance program. 2009 Wis. Act. 15, § 22, codified at Wis. Stat. § 49.825. Whitaker continued in her position, where she worked on behalf of the County but was under the supervision of the Department of Health Services. The Department had authority to make employment decisions regarding Whitaker, Wis. Stat. § 49.825(3)(b)(1), and it made the termination decision that she challenges in this suit.
The Department was aware of Whitaker's disability at least as early as 2009. On December 8, 2009, Whitaker filed a disability form seeking an accommodation for her chronic back pain. She requested permission to stand and stretch for five minutes once every thirty minutes during the workday. The Department approved her request.
In the summer of 2010, Whitaker took the first of several consecutive leaves of absence. She never returned to work before she was fired in November 2010. During those months, Whitaker requested and received a number of extensions until she had exhausted several types of leave that were available to her. At times she made clear that she was requesting leave due to her disability. At other times it was less clear why she requested leave. The events unfolded as follows.
On August 27, 2010, Whitaker requested two weeks of continuous leave under the Family and Medical Leave Act (FMLA) due to her "recurrent back pain." The Department approved her request and set her return date for September 10, 2010. Then, on September 8, Whitaker requested additional FMLA leave until December 27, 2010 to take care of a family member and because of her medical condition. The Department authorized leave through October 18, 2010, but informed Whitaker that her FMLA leave for the year would be exhausted at that point. The Department advised Whitaker that she could, however, request an unpaid leave of absence for up to 30 more days under section 2.24 of her contract: The Department also explained the process for requesting that leave.
On October 18, Whitaker submitted a request for contractual leave without pay through December 28, 2010. This time her request said that she sought leave to "take care of [her] ill father" and due to her "own personal illness." It did not mention her back condition specifically. The Department approved her contractual leave until November 5, 2010, but noted that it "will not be granting any additional extensions of this leave" and Whitaker was "expected to return to work on Monday, November 8, 2010 ." (Emphasis in original.) The Department warned Whitaker that if she failed to return to work, it would begin the termination process.
Whitaker did not return to work on November 8. She did, however, submit two additional notes from her doctor. One, dated November 3, 2010, said only "medical leave of absence until 11/17/10." The second was dated November 12, 2010 and said only "medical leave of absence until 12/17/10." Neither note provided any detail on Whitaker's condition, her course of treatment, or the likelihood of her recovery.
On November 15, 2010, the Department notified Whitaker that it was considering terminating her employment due to her failure to return to work. It scheduled a meeting with her for November 18 to "discuss this pending action and provide any documentation you wish to submit for consideration." Whitaker attended the November 18 meeting with a union representative. She indicated that she still could not return to work. The Department then terminated her employment on November 30, and Whitaker sued.
Whitaker's legal claims have gone through several iterations. On appeal, she argues that the Department of Health Services violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by rejecting what she calls her request for an accommodation of "finite, unpaid leave" and instead terminating her employment.1
The district court granted summary judgment in favor of the Department. First, the court found that Whitaker failed to provide evidence that she could perform the essential functions of her position, either with or without an accommodation. Second, the court found that Whitaker had admitted that she was not terminated "solely by reason of her ... disability," as required by the Rehabilitation Act. Finally, the court found that Whitaker's accommodation request "amounted to an open-ended leave request," which was not reasonable and would have imposed an undue burden on the Department.
We review de novo the district court's grant of summary judgment. Magnus v. St. Mark United Methodist Church , 688 F.3d 331, 336 (7th Cir. 2012). Except for its "solely by reason of" standard, the Rehabilitation Act "incorporates the standards applicable to Title I of the [Americans with Disabilities Act]." Brumfield v. City of Chicago , 735 F.3d 619, 630 (7th Cir. 2013). To prevail on her Rehabilitation Act claim, Whitaker must show that: "(1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or the subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance." Felix v. Wisconsin Dep't of Transportation , 828 F.3d 560, 568 (7th Cir. 2016).
To avoid a motion for summary judgment challenging each element, Whitaker must present evidence that, if believed by a trier of fact, would establish each of these elements. Kotwica v. Rose Packing Co. , 637 F.3d 744, 748 (7th Cir. 2011). It is undisputed that Whitaker is disabled within the meaning of the statute and that the Department receives federal funds. However, Whitaker failed to present evidence that would allow a trier of fact to find that she was an "otherwise qualified" employee. An employee is "otherwise qualified" when she is capable of performing the "essential functions" of the job with or without a reasonable accommodation. Brumfield , 735 F.3d at 631. Since Whitaker failed to establish that she could perform the essential functions of her job, her Rehabilitation Act claim fails. We need not address the Department's argument that Whitaker never made a proper accommodation request in the first place, nor the district court's conclusion that her request was not reasonable.
For purposes of the Americans with Disabilities Act and the Rehabilitation Act, regular attendance is an essential function of many jobs. See, e.g., Basden v. Professional Transportation, Inc. , 714 F.3d 1034, 1037 (7th Cir. 2013) (), citing EEOC v. Yellow Freight System, Inc. , 253 F.3d 943, 948–49 (7th Cir. 2001) ; Jovanovic v. In–Sink–Erator Division of Emerson Elec. Co. , 201 F.3d 894, 899–900 (7th Cir. 2000) ().
While there may be exceptions to this general rule, the record shows there was no exception in this case: Whitaker's economic support specialist position required regular attendance. The position's responsibilities included answering phone calls, attending in-person meetings with clients, using the Department's internal computer system, and other tasks that required attendance. Whitaker does not provide any evidence that attendance was not an essential function of...
To continue reading
Request your trial
-
Reed v. Columbia St. Mary's Hosp.
...only if it is "solely by reason of" a person’s disability. The ADA permits mixed-motive claims. See Whitaker v. Wisconsin Dep't of Health Servs. , 849 F.3d 681, 684 (7th Cir. 2017).A plaintiff suing under the Rehabilitation Act can assert that she was intentionally discriminated against or ......
-
Santos v. Cnty. of Lake
...of' a person's disability." Reed v. Columbia St. Mary's Hosp., 915 F.3d 473, 484 (7th Cir. 2019) (citing Whitaker v. Wis. Dep't of Health Servs., 849 F.3d 681, 684 (7th Cir. 2017)); see 29 U.S.C. § 794(a). The Sheriff's Department argues that Plaintiff has failed to state a claim under the ......
-
Cesario v. Jewel Food Stores, Inc.
...affidavit for each plaintiff.5 Generally, self-serving affidavits are permissible on summary judgment, Whitaker v. Wisconsin Dep't of Health Servs., 849 F.3d 681, 685 (7th Cir. 2017) (citing Widmar v. Sun Chemical Corp., 772 F.3d 457, 459-60 (7th Cir. 2014)), particularly to clarify ambiguo......
-
Gates v. Bd. of Educ. of Chi.
...(7th Cir. 2007) ; Johnson v. Advocate Health and Hospitals Corp. , 892 F.3d 887, 894 (7th Cir. 2018) ; Whitaker v. Wisconsin Dep’t of Health Services , 849 F.3d 681, 684 (7th Cir. 2017). Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material f......
-
Chapter § 3-9 § 1630.9. Not Making Reasonable Accommodation
...regular attendance. For an employer who did and was able to obtain a summary judgment, read on. • Whitaker v. Wis. Dep't of Health Servs., 849 F.3d 681 (7th Cir. 2017) (plaintiff suffered from back pain that caused her to be absent from work; she claimed that she was undergoing cortisone in......