Watt v. Brown County

Filing 39

ORDER GRANTING in part and DENYING in part 15 Defendant's Motion for Summary Judgment; GRANTING 36 Plaintiff's Motion for Leave to File and Plaintiff's suggestion that this Court grant summary judgment for Plaintiff 25 is Denied. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KARI L. WATT,
Plaintiff,
v.

Case No. 15-CV-0196

BROWN COUNTY,
Defendant.

DECISION AND ORDER

Plaintiff Kari Watt filed this employment discrimination action against Defendant Brown
County, alleging that Brown County intentionally discriminated against her on the basis of her
disability, a right rotator cuff tear. More specifically, Plaintiff alleges that Defendant failed to
reasonably accommodate her disability and terminated her in reckless disregard for her federally
protected rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and
the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).

This Court has

jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 & 1343. This case is now before the
Court on Defendant’s motion for summary judgment. ECF No. 15. Though Plaintiff has not filed
a motion for summary judgment, she suggests in her brief in opposition that this Court should grant
summary judgment in her favor pursuant to Fed. R. Civ. P. 56(f). Also pending before this Court
is Plaintiff’s motion for leave to file a surreply in opposition to Brown County’s motion for summary
judgment. ECF No. 36. For the reasons that follow, Plaintiff’s motion for leave to file a surreply
will be granted, Defendant’s motion for summary judgment will be only partially granted, and the
Court will decline to grant summary judgment for Plaintiff pursuant to Fed. R. Civ. P. 56(f).

BACKGROUND
Beginning in May, 1998, Plaintiff Kari Watt worked for Ashwaubenon Public Safety as a
Public Safety Telecommunicator. Watt’s position was absorbed into Defendant Brown County in
October 2010 after Ashwaubenon Public Safety merged with Defendant.

Watt’s duties in

Defendant’s 911 Center included receiving calls for emergency services via 911 and non-911 lines
and dispatching police, fire, and emergency calls via electronic and radio dispatch equipment. Watt’s
employment with Defendant ceased when Defendant terminated her employment on April 2, 2013.
Watt performed her duties as a Telecommunication Operator with Defendant at a two-tiered
workstation. A workstation similar to the one Plaintiff worked from is depicted in Photograph 1
below:

Photograph 1. Walcheske Dec. Ex. E at 7, Workstation at Brown County, ECF No. 29-5.
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Telecommunication Operators did not have assigned workstations. Instead, they used the
available workstations depending upon shift assignments. The workstations have two heightadjustable tiers which may be lowered or raised at the discretion of the individual Telecommunication
Operator. The lower (front) tier contains buttons for controlling the heights of the tiers, a computer
keyboard, a mouse, and a keypad for the telephone. The second (back) tier holds the four computer
monitors, which include three call screens and a touchscreen monitor for the telephone. The
telephone monitor is the only touchscreen. Telecommunication Operators have the ability to use
either the touchscreen monitor or the keypad to use the telephone.
Around February or March of 2012 Watt was diagnosed with a rotator cuff tear in her right
shoulder. Watt underwent surgeries for her recurrent rotator cuff tears on March 9, 2012, October
1, 2012, and April 9, 2013. After her first surgery Watt was off work from March 9, 2012, to May
30, 2012, and was paid short term disability (STD) benefits for 83 days. Beginning on September
27, 2012, Watt began missing work due to her second surgery. Watt was paid STD benefits from
September 30, 2012 to January 6, 2013, for a total of 99 days. On January 7, 2013, Watt returned
to work with significant medical restrictions. She could only work four hours per day and could not
use her right arm. Watt used STD to offset her lost income due to her reduced work hours during
this period.
After her second surgery, Watt did not return to her Telecommunication Operator position,
but instead was assigned light-duty work consisting of developing a training manual and updating
systems manuals. On January 8, 2013, Watt was medically cleared to use both hands to write and
type, though her other restrictions remained. On March 8, 2013, Watt was cleared to work six hours
a day. On April 2, 2013, Watt was removed from payroll and terminated. On that same day Watt
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was given a letter explaining the reasons for her termination. The letter stated that Watt was being
terminated because she had exhausted her 180 days of STD and was unable to work full-time
without restrictions. Brown County’s STD policy provides coverage for a maximum of 180 calendar
days. ECF No. 24-1. Though Brown County will not force an employee to file for long term
disability benefits, if the employee cannot return to work at the end of the six-month STD period,
the employee is removed from payroll.
Watt’s third surgery took place on April 9, 2013, rendering her unable to work until April
24, 2013. Watt was cleared for one-handed work on April 24, 2013, and by July 3, 2013, Watt was
able to use both arms (though she was restricted from performing lifting above waist level with her
right arm). By September 24, 2013, Watt was only restricted in her ability to lift weight and by
November 4, 2013, Watt was cleared to return to work without any restrictions. Watt applied to
be rehired for a Telecommunication Operator position in August 2013 but her application for
employment was denied.
ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.; see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460–61 (E.D. Wis.1991). “Material facts” are
those under the applicable substantive law that “might affect the outcome of the suit.” See
Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. In deciding a motion for
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summary judgment, the court will view the facts in the light most favorable to the non-moving
parties. Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004).
B. Plaintiff’s Motion for Leave to File a Surreply
As an initial matter, Plaintiff’s motion for leave to file a surreply in opposition to Defendant’s
motion for summary judgment (ECF No. 36) will be granted. “The decision to permit the filing of
a surreply is purely discretionary and should generally be allowed only for valid reasons, such as when
the movant raises new arguments in a reply brief.” Meraz-Camacho v. United States, 417 F. App’x
558, 559 (7th Cir. 2011); see Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 631 n.2 (7th
Cir. 2010). Here, Plaintiff has met her burden for leave to file a surreply because Defendant’s reply
brief cited to evidence that was not even in existence at the time Defendant filed its motion for
summary judgment. ECF No. 31-3; see also ECF Nos. 32-1, 32-2, 32-3, 32-4, 32-5, 32-6.
Defendant’s request for an opportunity to file a response to Plaintiff’s surreply will be denied.
Defendant sufficiently responded to Plaintiff’s surreply in its brief in opposition to Plaintiff’s motion
for leave to file a surreply. ECF No. 37.
C. Rehiring
In her complaint Watt alleged that the County intentionally discriminated against her on the
basis of her disability by subjecting her to a different hiring criteria and by denying employment to
her in reckless disregard for her federally protected rights under the Americans with Disabilities Act,
as amended by the ADAAA, 42 U.S.C. § 12101, et. seq. Compl. 15–16, ECF No. 1. The County
moved for summary judgment on this issue, arguing that: Watt was subjected to the normal hiring
procedure; Watt was not the best person for the position; similarly situated employees were not
treated more favorably; there is no evidence of pretext; and there is no direct evidence of
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discrimination against Watt. Watt failed to respond to these arguments in her brief in opposition.
As such, Watt has abandoned this claim and summary judgment will be granted for the County on
Watt’s rehiring claim. See Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir.
1999).
D. Termination
The ADA prohibits discrimination on the basis of disability against “qualified individual[s].”
42 U.S.C. § 12112(a).

To establish a claim under the ADA, a plaintiff must prove by a

preponderance of the evidence that she was a qualified person with a disability and that her employer
took an adverse action against her on account of her disability. Hoffman v. Caterpillar, Inc., 256
F.3d 568, 571–72 (7th Cir. 2001). The term “disability” is defined in the ADA means any of the
following:
(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such and impairment (as described in paragraph (3)).
42 U.S.C. § 12102(1). Paragraph 3 qualifies Paragraph (1)(C) by stating that it does not apply to
impairments that are “transitory and minor.” 42 U.S.C. § 12102(3). Paragraph 3 further states “[a]
transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Id.
For purposes of its motion for summary judgment, the County has not challenged Watt’s
assertion that her torn rotator cuff constitutes a disability within the meaning of the ADA or that the
County had knowledge of her condition. Instead, the County argues that Watt cannot prove that the
County terminated her on account of her disability. The County contends:
Watt cannot establish that the reasons given for the termination were factually
baseless, not the real reason or insufficient to motivate the decision makers. In March
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of 2013, Watt was advised that if she exhausted her 180 days of short term disability
(STD), she would need to apply for long term disability. (DPF 45) Because her 180
days of STD were exhausted and she could not return to her regular work schedule
or job duties, pursuant to Brown County policy and the short term disability plan,
Watt was removed from the payroll. (DPF 50)
Def.’s Br. in Supp. at 8, ECF No. 16. In other words, the County claimed, at least initially, that it
terminated Watt because she exhausted her short term disability benefits and was unable to work fulltime and without restrictions.
The problem with the County’s argument, however, as Plaintiff points out, is that terminating
a person with a disability because they cannot return to work without any limitations ignores the
mandate of the ADA that employers must make reasonable accommodations for individuals with
disabilities. 42 U.S.C. § 12112(b)(5) (defining discrimination under ADA as “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual with
a disability who is an applicant or employee, unless such covered employee can demonstrate that the
accommodation would impose an undue hardship on the operation of the business or such covered
entity”). Thus, policies requiring that employees be 100% healed in order to return to work have
been held to constitute per se violations of the ADA as applied to individuals with disabilities. See
Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012) (“Since a ‘100% healed’ policy prevents
individual assessment, it necessarily operates to exclude disabled people that are qualified to work,
which constitutes a per se violation.”); see also Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th
Cir.2001) (stating that all courts “agree that a 100% rule is impermissible as to a disabled
person—but one must first be disabled”).
Apparently recognizing the problem, the County argues in its reply brief that Watt was not
a qualified individual at the time it terminated her employment and that no reasonable
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accommodations would have made her qualified. The ADA defines “qualified individual” as “an
individual who, with or without reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Regulations
enacted under the ADA create a two-prong test for determining whether an individual with a
disability is qualified:
First, the disabled individual “satisfies the requisite skill, experience, education and
other job-related requirements of the employment position [he] holds or desires.” 29
C.F.R. § 1630.2(m). Second, he “can perform the essential functions of such
position” with or without accommodation. Id.
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1058 (7th Cir. 1998).
The determination about whether an individual is qualified “should be based on the qualified disabled
individual’s capabilities at the time of the employment decision.” Id. at 1059.
Since Watt had held the position of telecommunications officer since 1998, it seems clear that
Watt had the “requisite skill, experience, education and other job-related requirements for the job.”
The County argues, however, that at the time it terminated Watt on April 2, 2013, she could not
perform the essential functions of her position. The County contends that Watt was restricted to
doing work with only her left had and no work over shoulder level. In support, the County cites to
an office note from Watt’s doctor which states in part:
On a self-reported survey, [Watt] reports difficulty sleeping, difficulty using her arm
away from the body for a prolonged period of time. She cannot work as a
dispatcher. Reaching overhead she has lost some significant strength and function of
the arm. She denies any neurogenic symptoms. She has no radicular complaints. She
is quite debilitated by the shoulder pain and dysfunction with her recurrent cuff tear.
Letter from Dr. Hennigan at 1, ECF No. 20-3 (emphasis added). The County also discusses the fact
that Watt’s position at the 911 Call Center demanded timely responses in emergency situations that

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Watt was not able to perform efficiently. However, as to this second point, the County is only able
to cite to Watt’s performance on her July 2013 application test—which took place after her third
surgery and, therefore, is outside the scope of the relevant time frame for the inquiry here.1 Finally,
the County contends that the Telecommunication Operator position required reaching and that Watt
could not reach with her right hand due to the medical restriction.
Watt, on the other hand, argues that she could have performed the essential functions of a
Telecommunication Operator with or without reasonable accommodations. Specifically, she claims
that her disability did not prevent her from performing essential tasks of the position. Watt first
argues that her medical restrictions did not prevent her from reaching above shoulder height at the
time of her termination. Next, Watt contends that Telecommunication Operators can still dial the
phone (an essential function) without reaching to touch the touchscreen on the second level of the
workstations. According to Watt, there is evidence that Telecommunication Operators could simply
use a lower-tier phone keypad to perform the essential duties of the position. Alternatively, Watt
argues that there were numerous accommodations available that would have allowed her to perform
the essential functions of the position, including: lowering her workstation, using a taller chair, using
solely the lower-level of the workstation, performing her duties one-handed, or even granting her an
unpaid leave of absence.
I find that there is a genuine dispute of fact regarding Watt’s ability to perform the essential
tasks of the Telecommunication Operator position. Though Watt continued to have some limitations

1

Plaintiff also indicates that she was unable to type with both hands during the test because she
was waiting to undergo bilateral carpal tunnel surgery. Pl.’s Surreply 8, ECF No. 36-1.
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on April 2, 2013,2 factual disputes exist regarding what capabilities were required of a
Telecommunication Operator and whether accommodations would have permitted Watt to perform
the essential functions of a Telecommunication Operator. For example, there is a factual dispute
regarding the meaning of an email sent by Shelly Nackers, the County’s Communications Manager.
Nackers’ email stated that Watt’s inability to reach over her shoulder “should not be a problem, we
really do not reach over our shoulders for anything unless you are sitting on the floor.” ECF No. 293 (emphasis added). The County argues that “floor” in Nackers’s email refers to the floor where the
Telecommunication Operators all sit or stand and direct calls. Plaintiff argues that “floor” means
“floor,” i.e., the lower surface of a room. Other evidence paints a similarly mixed picture. Compare
ECF No. 33-3 (“She does not need to do any over the shoulder work while call taking/dispatching.”),
with Letter from Dr. Hennigan at 1, ECF No. 20-3 (“She cannot work as a dispatcher.”), and Smith
Aff. 8, ECF No. 23 (“[S]he would have been required to reach at or above shoulder level.”). As
such, for the purposes of summary judgment, the County has failed to show that essential functions
of the Telecommunication Operator position necessarily required reaching to touch a screen.
Likewise, factual disputes remain regarding whether particular accommodations could have
allowed Watt to perform the essential functions of the position. The fact that Watt applied for and
remained on temporary disability suggests that she herself thought she was incapable of performing
the essential functions of her job. But other facts in the record raise a question about whether a taller

2

When Plaintiff returned to work on January 7, 2013, she was originally limited to four hours
of work per day and no use of her right arm. ECF No. 24-7. On January 8, 2013, that restriction was
revised to allow Plaintiff to use her right hand to write. ECF No. 24-8. Her restriction was clarified
on January 15, 2013, to allow writing and typing while prohibiting over shoulder level work, limiting
lifting, and restricting Plaintiff to 4 hours of work per day. ECF No. 24-9. By March 8, 2013,
Plaintiff’s restriction allowed her to work six hours per day.
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chair, lower workstation, or use of only one hand could have allowed Watt to perform the essential
functions of the position. Critically, it stands to reason that given the layout of the workstations
described by the parties, the kinds of adjustments sought by Watt (making her taller or the monitors
lower) would have allowed her to perform the tasks without over-shoulder reaching.
For these reasons, the County is not entitled to summary judgment on Watt’s claim that it
terminated her on account of her disability in violation of the ADA.
E. Reasonable Accommodations
Watt also claims that the County failed to accommodate her as required by the ADA. Under
the ADA, “not making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or employee” is a form of
discrimination against a qualified individual unless the employer “can demonstrate that the
accommodation would impose an undue hardship on the operation of” their business. 42 U.S.C.
§ 12112(b). “To establish a prima facie case for failure to accommodate, ‘a plaintiff must show that:
(1) he is a qualified individual with a disability; (2) the employer was aware of his disability; and (3)
the employer failed to reasonably accommodate the disability.’” James v. Hyatt Regency Chicago,
707 F.3d 775, 782 (7th Cir. 2013) (quoting Kotwica v. Rose Packing Co., 637 F.3d 744, 747–48 (7th
Cir. 2011)). “[T]he standard rule is that a plaintiff must normally request an accommodation before
liability under the ADA attaches.” Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d
894, 899 (7th Cir. 2000). When an employee requests an accommodation, the employer is required
to engage in a flexible, interactive process to identify a reasonable accommodation. Beck v.
University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (1996). Of course, “the failure to
engage in the interactive process required by the ADA is not an independent basis for liability under
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the statute, and that failure is actionable only if it prevents identification of an appropriate
accommodation for a qualified individual.” Basden v. Professional Transp., Inc., 714 F.3d 1034,
1039 (7th Cir. 2013).
The County argues it is entitled to summary judgment on this claim because the undisputed
evidence establishes that it did accommodate Watt’s medical restrictions by providing her light work
and reduced hours. The County contends that the fact that it did not terminate Watt in January of
2013 “shows the flexibility and the individualized assessment employed by the County in its
application of its policy of removing employees from the payroll after exhaustion of their STD. The
County also repeats its argument that none of the accommodations suggested by Watt, i.e., lowering
her work station, providing a taller chair, providing unpaid leave, transferring her to a vacant
position, would have allowed her to perform the essential functions of her job.
The County is not entitled to summary judgment on Watt’s failure to accommodate claim.
As an initial matter, it is not the case that Watt’s continued employment with the County from
January 7, 2013, through April 2, 2013, was an attempt to accommodate Watt and engage in the
required “interactive process.” It is true that Watt had exhausted her 180 days of STD by January
7, 2013. But the County’s failure to terminate her at that time appears to have been the result of a
mistake. Emails from the County’s employees suggest that the reason for the delay in terminating
Watt immediately after she exhausted her STD was because the County miscalculated the time she
was on STD. Compare ECF No. 24-2 (noting that by March 15, 2013, Plaintiff had used 176 days
of STD), with ECF No. 33-3 (stating that Plaintiff had exhausted her STD by January 1, 2013).
The County’s remaining arguments concerning whether other accommodations suggested by
Watt would have allowed her to perform her job likewise fail. The County’s argument that
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accommodations such as a taller chair or lowering the work station would not permit Watt to
perform her duties are subject to factual disputes that preclude entry of summary judgment in favor
of the County. Other suggested accommodations, such as continuing Watt on light duty, placing her
in a vacant position or giving her an unpaid leave of absence would all have allowed Watt to continue
her employment for the relatively brief period of time she needed to regain full functioning. The
County’s argument that these suggested accommodations were not reasonable at best raises factual
issues that are also not resolvable on summary judgment. Accordingly, the County’s motion must
be denied on Watt’s failure to accommodate claim as well.
F. Summary Judgment in Favor of Watt
Finally, Watt has asked the court to consider granting summary judgment in her favor
pursuant to Rule 56(f)(1), which authorizes the court to grant summary judgment for the non-movant
after giving the non-movant notice and an opportunity to respond. Watt notes that a 100% healed
policy is a per se violation of the ADA and argues that because the undisputed evidence shows that
the County applied such a policy in terminating her employment, summary judgment should be
granted in her favor. But as already noted, a 100% healed policy is only a violation of the ADA if
applied to a qualified individual with a disability. See Powers v. USF Holland, Inc., 667 F.3d 815,
819 (7th Cir. 2011) (citing Henderson v. Ardco, Inc., 247 F.3d at 653). It is not clear on this record
whether Watt was such an individual.
It is true that the County did not challenge Watt’s allegation that her torn rotator cuff
constituted a disability in its motion for summary judgment. But it did not concede the point either,
except for purposes of its motion. In an ADA case, the plaintiff has the burden of proving she has
a disability, and Watt has produced neither evidence or argument that the injury she sustained meets
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the statutory definition of disability. The issue is far from clear. See, e.g., Settle v. S.W. Rodgers Co.,
Inc., 998 F.Supp. 657, 662 (E.D. Va. 1998) (holding that former employee's allegation that he had
rotator cuff shoulder injury was insufficient, by itself, to show that he had “disability” within meaning
of ADA). While the court in Settle also rejected the defendant’s argument that a rotator cuff injury
was insufficient as a matter of law to constitute a disability and the case was decided under a previous
version of the law, it nevertheless suggests that the issue is not a given. Since neither party has raised
the issue, the court will not decide it and therefore declines Watt’s invitation to grant summary
judgment in her favor.
CONCLUSION
Based upon the foregoing analysis Defendant’s motion for summary judgment (ECF No. 15)
is GRANTED IN PART AND DENIED IN PART. The motion is granted as to Plaintiff’s rehiring
claim, but denied in all other respects. Plaintiff’s suggestion that this Court grant summary judgment
for Plaintiff pursuant to Fed. R. Civ. P. 56(f) (ECF No. 25) is DENIED. Additionally, Plaintiff’s
motion for leave to file a surreply (ECF No. 36) is GRANTED. The Clerk is directed to set a
telephone conference for further scheduling.
SO ORDERED this 23rd

day of September, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Judge

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