Whitaker v. Milwaukee County DHS et al

Filing 57

ORDER signed by Judge J P Stadtmueller on 11/12/13: denying 50 Plaintiff's Expedited Motion for Leave to File a Second Amended Complaint; granting 33 Defendant's Motion for Summary Judgment; and, DISMISSING this action on its merits together with costs as taxed by the Clerk of the Court. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOYCE WHITAKER,
Plaintiff,

Case No. 12-CV-1006-JPS

v.
MILWAUKEE COUNTY,
Defendant.

ORDER

On October 3, 2012, plaintiff Joyce Whitaker (“Whitaker”) filed a
complaint naming Milwaukee County DHS and the State of Wisconsin
Department of Health Services (“Wisconsin DHS”) as defendants. (Docket
#1). Whitaker’s complaint alleges that defendants violated Title I of the
Americans with Disabilities Act (“ADA”) when they failed to accommodate
her disability and discharged her. On December 26, 2012, defendant
Wisconsin DHS filed a motion to dismiss, arguing that the State’s immunity
under the Eleventh Amendment to the United States Constitution bars
Whitaker’s action against it. (Docket #11). On January 30, 2012, this court
granted the motion and dismissed Wisconsin DHS from the action. (Docket
#15). On March 28, 2013, the parties stipulated that Whitaker may file an
amended complaint; defendant Milwaukee County1 filed an answer to the
amended complaint. (Dockets #26, #28). Presently before the court are:
Milwaukee County’s motion for summary judgment, and Whitaker’s
expedited motion for leave to file a second amended complaint. (Dockets #33,
#50). The motions are fully briefed and ready for adjudication.

1

On April 22, 2013, the name of the defendant was changed from
“Milwaukee County DHS” to “Milwaukee County.” (April 22, 2013 Docket Entry).

1.

Background Facts
1.1

Whitaker’s Employment History

Whitaker was hired by Milwaukee County as a Corrections Officer in
July of 2001. Defendant’s Proposed Finding of Fact (“Def. PFOF”) (Dockets
#35, #41) ¶ 1. On May 23, 2005, Whitaker sustained an injury while working
as a Corrections Officer; this injury resulted in permanent restrictions that
prevented her from performing the essential functions of the Corrections
Officer position. Def. PFOF ¶¶ 2-3. In February of 2006, Milwaukee County
accommodated Whitaker’s permanent restrictions by transferring her to a
position as an Energy Assistance Specialist. Def. PFOF ¶ 4. In September of
2008, Whitaker sought, was offered, and commenced employment in another
position with Milwaukee County, that of an Economic Support Specialist.
Def. PFOF ¶¶ 5-6.
1.2

Wisconsin’s Act 15 and its Implementation

On May 29, 2009, Wisconsin Act 15 (“Act 15”) became law in
Wisconsin. Def. PFOF ¶ 7. Pursuant to Act 15, the State of Wisconsin
assumed responsibility for the administration of income maintenance
programs in Milwaukee County. More specifically, pursuant to part of Act
15, Wis. Stat. § 49.825(2)(a), entitled “Department administration in
Milwaukee County,” the State created a unit of State government to
administer several welfare programs in Milwaukee County. Def. PFOF
¶¶ 8-11. The State created the Milwaukee County Enrollment Services
(“MilES”) unit, the unit to which Whitaker was assigned. Plaintiff’s Proposed
Finding of Fact (“Pl. PFOF”) (Dockets #40, #45) ¶ 29, ¶ 36.
Wis. Stat. § 49.825(3) set forth the division of responsibility for
employment-related functions between the State and Milwaukee County.

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Def. PFOF ¶ 12. These provisions applied to Whitaker beginning on May 29,
2009, and throughout the remainder of her employment as an Economic
Support Specialist. Def. PFOF ¶ 15.
Milwaukee County provided the staff to operate the MilES unit, and
thus, even after the implementation of Act 15, Whitaker remained an
employee of Milwaukee County. Pl. PFOF ¶ 30, ¶ 23. Milwaukee County
compensated Whitaker, and Whitaker received benefits from and through
Milwaukee County. Pl. PFOF ¶ 24. Whitaker worked at a facility owned and
operated by Milwaukee County, wore a badge identifying her as an
employee of Milwaukee County, and remained a member of Milwaukee
County’s union with corresponding seniority rights. Pl. PFOF ¶ 25.
Wisconsin DHS has authority to “hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, discipline, and adjust grievances
with respect to, and state supervisory employees may supervise, county
employees performing services under this section for the unit.” Def. PFOF
¶¶ 12-13. Wis. Stat. § 49.825(3)(b)(4) states that Wisconsin DHS “may
unilaterally resolve” disputes between the Wisconsin DHS and county
employee unions regarding hours or conditions of employment. Def. PFOF
¶ 14. Wisconsin DHS is responsible for maintaining the personnel and
medical files for MilES employees. Def. PFOF ¶ 40.
1.3

Whitaker’s Leave and Accommodation Requests

Subsequent to Act 15 taking effect, Whitaker’s supervisors, including
Vanessa Robertson (“Robertson”) and Mario Reed (“Reed”) were Wisconsin
DHS employees. Def. PFOF ¶ 16. Whitaker’s work accommodation requests
and Family and Medical Leave Act (“FMLA”) leave requests were approved
by Wisconsin DHS employees. Def. PFOF ¶¶ 17-19. David Lopez approved

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a work accommodation request in January 2010; Nicole Teasley (“Teasley”)
approved a request for intermittent FMLA leave in June 2010, and a request
for continuous FMLA leave in August 2010. Def. PFOF ¶¶ 17-19. Whitaker’s
absence from work continued and, in a letter dated October 25, 2010, Teasley
informed Whitaker that her FMLA leave was exhausted as of October 18,
2010, but that she was approved for a leave of absence through November 5,
2010. Def. PFOF ¶ 20. In a letter dated October 25, 2010, Robertson informed
Whitaker that she was expected to return to work on November 8, 2010. Def.
PFOF ¶ 21.
1.4

Whitaker’s Termination

Whitaker did not return to work on November 8, 2010. Def. PFOF
¶ 29. In a letter dated November 15, 2010, Robertson informed Whitaker that
Wisconsin DHS intended to medically separate her from employment. Def.
PFOF ¶ 30. The letter stated “[w]hen an employee has exhausted all leave
entitlements and remains unable to work, the Department of Health Services
is granted authority under s. 230.37, Wis. Stats., to medically separate the
employee from state service.…termination of your employment with the
State of Wisconsin may be necessary.” Def. PFOF ¶ 31. The letter set a
November 18, 2010 meeting “to discuss this pending action.” Def. PFOF ¶ 32.
Milwaukee County was copied on and received a copy of this letter. Pl.
PFOF ¶ 78.
Whitaker, a union representative, Teasley, and Robertson attended a
meeting on November 18, 2010; at this meeting Whitaker was informed of
her termination. Def. PFOF ¶¶ 33-34. Eli Soto (“Soto”), a Wisconsin DHS
employee, mailed a letter dated November 30, 2010, to Whitaker informing
her that her employment with Wisconsin DHS was “being terminated

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effective November 30, 2010 for medical reasons.” Def. PFOF ¶ 35.
Milwaukee County was copied on and received a copy of this letter. Pl.
PFOF ¶ 85.
1.5

Whitaker’s Equal Employment Opportunity Commission
Charge

On November 3, 2010, Whitaker filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) naming Milwaukee
County DHS and Wisconsin DHS as discriminating entities. Def. PFOF
¶¶ 22-23. Whitaker’s charge stated “[t]he work I do is under the supervision
of the State of WI Department of Health Services.” Def. PFOF ¶ 24.
The charge also stated “I believe I have been discharged on the basis of
my disability,” named “10-25-2010” as the earliest and latest dates of
discrimination, and did not indicate that there was a “continuing action.”
Def. PFOF ¶¶ 24-27.
On December 22, 2010, Attorney Lara M. Herman of the Office of
Legal Counsel, Wisconsin DHS, sent a position statement with attached
exhibits to the EEOC. Def. PFOF ¶ 38. The position statement indicated that
the State took over Milwaukee County Income Maintenance programs
pursuant to Act 15, and that the State assumed full responsibility of the
activities on January 1, 2010, including the authority to hire, to fire, and to
accommodate employees under the Americans with Disabilities Act
(“ADA”). Def. PFOF ¶¶ 39-42. On July 26, 2012, the EEOC issued a “right to
sue” letter to Whitaker indicating that the EEOC found reasonable cause to
believe that the Wisconsin DHS engaged in discriminatory behavior. Def.
PFOF ¶¶ 43-44. On May 8, 2013 the EEOC issued a “Dismissal and Notice of
Rights” letter to Whitaker stating that the EEOC is “unable to conclude that
the information obtained establishes violations of the statutes” regarding
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Milwaukee County DHS and informing her of her right to sue within ninety
days. Def. PFOF ¶ 53.
1.6

Whitaker’s Federal Lawsuit

On October 3, 2012, Whitaker initiated this lawsuit in the Eastern
District of Wisconsin, naming Milwaukee County DHS and Wisconsin DHS
as defendants. (Docket #1). On December 26, 2012,Wisconsin DHS moved to
dismiss on grounds of Eleventh Amendment immunity from suit. (Docket
#11). On January 30, 2012, this court granted the motion and dismissed
Wisconsin DHS from the action. (Docket #15). On March 28, 2013, the parties
stipulated that Whitaker may file an amended complaint; defendant
Milwaukee County moved for summary judgment. (Dockets #26, #33).On
November 6, 2013, Whitaker filed an expedited motion for leave to file a
second amended complaint. (Docket #50).
2.

Whitaker’s Expedited Motion for Leave to Amend
2.1

Legal Standard

Under Federal Rule of Civil Procedure 15, a court should “freely”
grant leave to amend pleadings “when justice so requires.” Fed. R. Civ. Pro.
15 (a)(2). However, a trial court has “broad discretion to deny leave to amend
where there is undue delay, bad faith, dilatory motive, repeated failure to
cure deficiencies, undue prejudice to the defendants, or where the
amendment would be futile.” Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir.
2012) (citations omitted).
2.2

Analysis

Whitaker seeks to amend her complaint to rejoin Wisconsin DHS as
a defendant and to add a cause of action asserting a violation of the
Rehabilitation Act of 1973. Motion to Amend (Docket #50) at 2. Whitaker

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argues that the parties would not be prejudiced by granting leave to amend,
that the operative facts in the second amendment complaint are the same as
those in the amended complaint, and that amendment serves the interests of
justice. Motion to Amend at 2-3. Milwaukee County opposes Whitaker’s
motion. Milwaukee County asserts that granting Whitaker’s motion would
unduly delay the proceedings and prejudice Milwaukee County. Response
to Motion to Amend (Docket #51) at 2.
The court finds that Whitaker’s motion was filed much too late in the
proceedings and that granting the motion would prejudice Milwaukee
County. First, with regard to the timing of the motion, the court notes that
this matter has been pending for over a year, and that its scheduled trial date
is fast-approaching. The court dismissed Wisconsin DHS from this matter
early in the proceedings, prior to plaintiff counsel’s appearance and the filing
of Whitaker’s amended complaint. (Dockets #15, #25, #28). Whitaker’s motion
points out that the operative facts of the proposed second amended
complaint are the same as those of the amended complaint; which is to say,
plaintiff knew all the operative facts before she filed the amended complaint,
and the impetus to amend again is not newly-discovered evidence, but
belatedly-identified claims. Plaintiff offers no explanation for the tardiness.
Furthermore, this matter is scheduled for jury trial to commence in less than
three weeks, on November 25, 2013; the court scheduled the matter on
February 26, 2013, and the parties have had notice since that time. (Docket
#22). Permitting amendment would necessarily interfere with this longestablished trial schedule.
Additionally, the court finds that it would prejudice Milwaukee
County to permit Whitaker to file a second amended complaint raising new

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theories of liability and adding a new party. Milwaukee County has
answered, engaged in discovery, and fully briefed a motion for summary
judgment predicated upon the amended complaint. If the court granted leave
to amend again, Milwaukee County would have to reassess its entire strategy
in this matter, laying waste to significant efforts made in its defense. The
court concludes that permitting Whitaker to amend her complaint literally
on the eve of trial would cause undue delay in the adjudication of this
matter, and would prejudice Milwaukee County. Accordingly, Whitaker’s
motion for leave to file a second amended complaint will be denied;
Whitaker’s amended complaint (Docket #28) remains the operative complaint
for the balance of this Order.
3.

Milwaukee County’s Motion for Summary Judgment
3.1

The Scope of Whitaker’s Lawsuit

The first point of analysis requires the court to identify the claims
properly included in Whitaker’s federal lawsuit. Whitaker’s amended
complaint alleges that Milwaukee County violated the ADA by four acts or
omissions: first, by “denying an extended medical leave of absence and/or
time off of work”; second, by denying her transfer to another position or
positions; third, by failing to accommodate her disability; and fourth by
terminating her employment. Am. Compl. at 20. Milwaukee County argues
that the scope of Whitaker’s lawsuit must be limited to her claim of
discriminatory discharge because Whitaker did not raise the other claims in
her EEOC charge. Motion Brief (Docket #34) at 6. Whitaker does not dispute
that she did not raise all of these claims with the EEOC, but argues that the
allegations in her amended complaint fall within the scope of her EEOC
charge. Response (Docket #39) at 29-30.

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Before a plaintiff may file a federal lawsuit alleging a violation of the
ADA, the plaintiff must file a charge with the EEOC. As the Seventh Circuit
explained in Conley v. Village of Bedford Park, “A plaintiff may pursue a claim
not explicitly included in an EEOC complaint only if her allegations fall
within the scope of the charges contained in the EEOC complaint. To
determine whether the allegations in the complaint fall within the scope of
the earlier EEOC charge, we must look at whether the allegations are like or
reasonably related to those contained in the charge.” Conley v. Village of
Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000) (citations, internal quotations
omitted). Allegations in a civil complaint and an EEOC charge are reasonably
related if they “describe the same conduct and implicate the same individuals.”
Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994)
(emphasis in original).
The court concludes that Whitaker’s claims of liability predicated on
a denial of an extended medical leave, denial of transfer to another position,
and failure to accommodate are not “like or reasonably related to” the
wrongful termination action articulated in her EEOC charge. Whitaker’s
EEOC charge states “I have been out on a medical leave of absence since
September 1, 2010. In a letter dated October 25, 2010 I was notified by
Vanessa Robertson, Deputy Director of MILES, that I would be terminated
if I failed to return to work by November 8, 2010. I am unable to return at
that time due to medical reasons.” (Docket #37-3). The charge gives
October 25, 2010, as the earliest and latest dates of discrimination; the box
indicating a continuing action is unchecked. Whitaker’s description of
the discriminatory conduct does not mention any denied requests for
extended leave, requests to transfer to another position, or requests for

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accommodation. The EEOC charge alleges only one basis for liability: the
October 25, 2010 letter notifying Whitaker that she must return to work or
face termination.
It is established in the Seventh Circuit that a claim for failure to
accommodate under the ADA is separate and distinct from a claim of
wrongful termination. In Green v. National Steel Corp., Midwest Div., the
Seventh Circuit provided analysis in a case with a similarly narrow EEOC
charge followed by a broader civil complaint. There, defendant National
Steel Corporation, Midwest Division (“National”) suspended and terminated
its employee, plaintiff Cynthia Green (“Green”). 197 F.3d 894, 896-97 (7th Cir.
1999). Green filed a charge with the EEOC, alleging that she was terminated
because of her disability. Id. at 897. National responded, the EEOC
investigated, and ultimately the EEOC dismissed the action and issued a
Notice of Right to Sue. Id. Green then filed suit against National, alleging that
National violated the ADA in terminating her employment and in failing to
accommodate her disability, among other claims. Id. The District Court for
the Northern District of Indiana granted National’s motion for summary
judgment on the failure to accommodate claim, and the Seventh Circuit
affirmed. Id. at 898. The Seventh Circuit compared the EEOC charge to the
civil complaint, noting that Green’s civil complaint articulated several
accommodations that National allegedly denied Green, but Green had not
included any of these allegations in her EEOC charge. Id. As the Seventh
Circuit explained:
a failure to accommodate claim is separate and distinct from a
claim of discriminatory treatment under the ADA. In fact, the
two types of claims are analyzed differently under the law.
Therefore, they are not like or reasonably related to one
another, and one cannot expect a failure to accommodate claim
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to develop from an investigation into a claim that an employee
was terminated because of a disability.
Id. (citations omitted).
Whitaker’s civil complaint and EEOC charge are similar to Green’s.
Following the reasoning of Green and Conley, the court concludes that
Whitaker did not articulate claims for failure to accommodate, denial of
extended leave of absence, and denial of transfer in her EEOC charge, that
those three claims are “analyzed differently under the law,” and that they are
not “like or reasonably related to one another.” Accordingly, the scope of
Whitaker’s federal lawsuit must be limited to the exhausted claim of
wrongful termination.
3.2

Whitaker’s Joint Employer Theory of Liability

Milwaukee County’s motion for summary judgment argues that it is
entitled to summary judgment on Whitaker’s complaint because no
reasonable trier of fact could conclude that Milwaukee County was involved
in the decision to terminate her employment. Motion Brief at 11. Whitaker’s
argument in response to Milwaukee County’s motion for summary judgment
hinges on her theory that Milwaukee County is liable for her allegedly
unlawful termination because Milwaukee County and Wisconsin DHS were
joint employers. Response at 1. In its Reply brief, Milwaukee County argues
both that Whitaker’s joint employer theory fails as a matter of procedure and
merit. Reply (Docket #44) at 3.
Whitaker’s joint employer theory is not stated in her amended
complaint. Instead, the amended complaint articulates an agency theory
follows: “By assuming the management responsibilities of [Milwaukee
County’s] Income Maintenance programs, [Wisconsin DHS] became an agent
of [Milwaukee County].” Am. Compl. at 8 ¶ 49. In its motion for summary
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judgment, Milwaukee County confronts this allegation, arguing that the
relationship between Milwaukee County and Wisconsin DHS was
“mandated by Wisconsin state law. For this reason the Plaintiff can present
no evidence [...] that the Wisconsin DHS was an ‘agent’ of Milwaukee
County, as the amended complaint alleges.” Motion Brief at 10 n.1. In her
responsive briefing, Whitaker does not rebut Milwaukee’s argument, but
instead offers a new theory: that Milwaukee County and Wisconsin DHS
were joint employers, and that therefore Milwaukee County “is liable for
[Wisconsin] DHS’s unlawful actions, and vice versa.” Response at 17.
Milwaukee County argues that Whitaker may not raise a new theory of
liability in opposition to its motion for summary judgment. Reply at 3.
Milwaukee County argues that it was prejudiced by this change of course
because it denied Milwaukee County adequate notice of the nature of
Whitaker’s claims. Reply at 4.
It is well-established in this Circuit that a party “may not amend his
complaint through arguments in his brief in opposition to a motion for
summary judgment.” Shanhan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996). The Seventh Circuit has affirmed district courts that refused to
consider claims raised in opposition briefing. For example, in Anderson v.
Donahoe, plaintiff’s pro se complaint asserted claims for disability
discrimination and failure to accommodate, but his two subsequent amended
complaints failed to reassert those claims. 699 F.3d 989, 997 (7th Cir. 2012).
Anderson sought to raise the claims in opposition to defendant’s motion for
summary judgment; the district court deemed the claims “forfeited” and
granted the defendant’s motion for summary judgment. Id. at 994. The
Seventh Circuit affirmed, explaining that by the time Anderson filed his brief

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in opposition, defendant had not received fair notice of Anderson’s claim, as
required by federal pleading rules. Id. at 997 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545 (2007)).
Similarly, a party may not raise new theories of liability in opposition
briefing to a motion for summary judgment. In Abuelyaman v. Ill. State Univ.,
Eltayeb Abuelyaman (“Abuelyaman”) filed a complaint alleging that his
employer, Illinois State University (“Illinois State”), refused to renew his
contract due to his race, national origin, and religion, and in retaliation for
three specific discrimination complaints he lodged. 667 F.3d 800, 803, 806 (7th
Cir. 2011). Illinois State filed for summary judgment and, in his opposition
briefing, Abuelyaman asserted a new theory in support of his retaliation
claim. Id. at 806. The district court rejected this theory and granted Illinois
State’s motion for summary judgment on this theory due, in part, to the fact
that Abuelyaman raised it late. Id. The Seventh Circuit affirmed on this point,
explaining that, “It is well settled that a plaintiff may not advance a new
argument in response to a summary judgment motion.” Id. at 814 (citing
Andree v. Ashland Cnty., 818 F.2d 1306, 1314 n.11 (7th Cir. 1987)). The court
held that the district court did not err in refusing to consider Abuelyaman’s
late-raised argument. Id. See also Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.
2002) (holding that plaintiff “failed to present to the trial judge” a claim of
retaliation, because the plaintiff raised it for the first time in opposition to
defendants’ motion for summary judgment).
With these authorities in mind, the court can only conclude that
Whitaker’s joint employer theory of liability was not timely raised. The
allegation that Milwaukee County and Wisconsin DHS are joint employers
does not appear in Whitaker’s amended complaint, and, therefore,

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Milwaukee County did not have adequate notice that Whitaker’s claim is
predicated on this theory of liability. Therefore, the court will not consider
this argument in its analysis of Milwaukee County’s motion for summary
judgment.
3.3

Milwaukee County’s Motion for Summary Judgment

Milwaukee County argues that it is entitled to summary judgment
because it was not involved in the allegedly discriminatory decision to
terminate Whitaker’s employment. Motion Brief at 10. The foundation of
Milwaukee County’s argument is an intuitive principle: a qualified
individual with a disability who suffers an adverse employment action as a
result of her disability has a cause of action under the ADA, but only against
entities properly liable for that discrimination. Milwaukee County argues it
is not a proper defendant because it was not involved in the decision to
terminate Whitaker. Motion Brief at 11.
The general standard for assessing motions for summary judgment
applies, namely: “The court shall grant summary judgment 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(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Material facts” are
those under the applicable substantive law that “might affect the outcome of
the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Plaintiff’s amended complaint pled agency as her theory of liability,
stating: “By assuming the management responsibilities of [Milwaukee
County’s] Income Maintenance programs, [Wisconsin DHS] became an agent

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of [Milwaukee County].” Am. Compl. at 8 ¶ 49. Unfortunately for Whitaker,
the undisputed facts show that Wisconsin DHS was not Milwaukee County’s
agent under Wisconsin law. “To establish agency under Wisconsin law, a
principal must: (1) manifest an express or implied intent to have another
party act for him; (2) retain the right to control the details of the other party’s
work; and (3) operate in a distinct occupation or business from the other
party.” St. Paul Mercury Ins. Co. v. The Viking Corp., 539 F.3d 623, 626 (7th Cir.
2008) (citing James W. Thomas Constr. Co. v. Madison, 255 N.W.2d 551, 554
(Wis. 1977); Peabody Seating Co. v. Jim Cullen, Inc., 201 N.W.2d 546, 549 (Wis.
1972)). The undisputed facts show that Whitaker cannot prove the second
prong of this agency test. As explained in sections 1.2, 1.3, and 1.4 of this
Order, supra, the State created the unit to which Whitaker was assigned, and
had authority to supervise and discharge employees of the unit. While
Whitaker remained a Milwaukee County employee in name and in some
other minor respects, Wisconsin DHS undisputedly had the authority to
terminate Whitaker. Milwaukee County did not “retain the right to control
the details” of Wisconsin DHS’s decision to terminate Whitaker’s
employment. The only evidence in the record that Milwaukee County even
knew of the Wisconsin DHS’s decision to terminate Whitaker is that
Milwaukee County was copied on the written letters from Robertson and
Soto notifying Whitaker of her termination. All of the individuals involved
in Whitaker’s supervision and termination (Robertson, Reed, Lopez, Teasley,
Soto) were Wisconsin DHS employees. In sum, the record does not support
a finding that Wisconsin DHS was acting as Milwaukee County’s agent
because nothing in the record shows that Milwaukee County retained any

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control over Wisconsin DHS as it supervised and ultimately terminated
Whitaker’s employment.
There are no genuine disputes as to any material facts in this case. The
undisputed facts before the court show that Milwaukee County did not act
with regard to Whitaker’s termination; rather, the facts demonstrate the
direct opposite, namely that Milwaukee County had no power to act. It
follows that Whitaker may not seek relief from Milwaukee County under the
ADA. Milwaukee County has met its burden as movant and “is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Accordingly,
IT IS ORDERED that Whitaker’s expedited motion for leave to file a
second amended complaint (Docket #50) be and the same is hereby DENIED;
and
IT IS FURTHER ORDERED that Milwaukee County’s motion for
summary judgment (Docket #33) be and the same is hereby GRANTED and
this action be and the same is hereby DISMISSED on its merits together with
costs as taxed by the Clerk of the Court.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of November, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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