Cole v. Kenosha Unified School District Board of Education

Filing 47

ORDER signed by Judge J P Stadtmueller on 4/11/16 denying 25 Defendant's Motion for Summary Judgment and denying 46 Plaintiff's Motion to File a Surreply. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMIE COLE,
Plaintiff,
v.

Case No. 14-CV-1546-JPS

KENOSHA UNIFIED SCHOOL DISTRICT
BOARD OF EDUCATION,

ORDER
Defendant.
In this action, the plaintiff, Jamie Cole (“Cole”), claims that the
Kenosha Unified School District Board of Education (“the District”) violated
the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”),
and Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“Rehabilitation
Act”).1 (Docket #1). Specifically, Cole claims that the District unlawfully
discriminated against her by failing to: (1) reasonably accommodate her
disabilities (diabetes and major depression); and (2) engage in a constructive,
interactive process to solve her long-term workplace issues.(Docket #1, #36;
Cole II Docket #1). Cole also claims that the District retaliated against her for
requesting accommodations and filing complaints to the EEOC about this
allegedly discriminatory conduct. (Docket #1, #36; Cole II Docket #1).

1

Initially, Cole filed the civil complaint in this case pursuant to an Equal
Employment Opportunity Commission (“EEOC”) right-to-sue letter dated
September 15, 2014. (See Docket #1; Docket #15, Exs. 1-4). However, on September 3,
2015, Cole received another right-to-sue letter from the EEOC based on two
additional EEOC complaints. (See Docket 15 at 1-2). Cole filed a separate civil action
embodying the allegations underlying those two additional EEOC complaints. (See
Cole v. Kenosha Unified Sch. Dist. Board of Ed., Case No. 15-CV-01142 (filed Sep. 22,
2015)) [hereinafter Cole II]. Because all three of Cole’s EEOC complaints involved
the same series of allegedly discriminatory events that occurred from 2012-2014, the
Court consolidated both of Cole’s cases into the current action. (Docket #17).

Before the Court is the District’s motion for summary judgment.2
(Docket #25). Pursuant to Federal Rule of Civil Procedure 56, the District
moves for judgment as a matter of law with respect to all of Cole’s claims.
(Docket #25). That motion is now ripe for adjudication. (Docket #27, #36, #40).
For the reasons described herein, the Court concludes that there are
genuine issues of material fact that preclude the grant of summary judgment
for the District; thus, the District’s motion will be denied in its entirety
(Docket #25).
1.

BACKGROUND3
1.1

The Parties

Cole began working for the District in 2006 teaching special education
at Bradford High School. (Docket #36, Ex. 2 ¶ 1). Since that time, however,
Cole has held both regular education and special education positions at
various schools within the District, including Bradford High School, Indian
Trail High School and Academy (“ITHSA”), Tremper High School, and
Lincoln Middle School. (Docket #36, Ex. 2 ¶¶ 2-4; Docket #36, Ex. 2 ¶¶ 1-4).
Cole has Type 1 diabetes, which she has been controlling since 2003, and
major depression, which was diagnosed in 2010. (Docket #36, Ex. 3 ¶¶ 10-11).

2

Cole has also filed an expedited motion to file a surreply. (Docket #46). As
Cole correctly points out, the statements made by various employees of the District
are admissible under Fed. R. Evid. 801(d). Moreover, Cole filed a sufficient
declaration attesting to her medical conditions. (Docket #36, Ex. 1). Because
summary judgment can be disposed of without Cole’s surreply, however, the
motion (Docket #46) will be denied.
3

The facts will generally be taken from the parties’ proposed findings of fact
(Docket #26, #36, Ex. 2) and the parties’ responses thereto (Docket #36 Ex. 3, #38,
#39), unless otherwise indicated. Any disputes of fact will be noted accordingly.

Page 2 of 17

The District encompasses the City of Kenosha, the Village of Pleasant
Prairie, and the Town of Somers and is comprised of 23 elementary schools,
5 middle schools, 5 high schools, 5 charter schools, and 1 Head Start Child
Development Center. (Docket #26 ¶ 2). It employs more than 1600 teachers
among more than 2300 full-time equivalent employees. (Docket #26 ¶¶ 3-4).
1.2

Facts

The relevant time frame for this action is the 2012/2013 school year
and the 2013/2014 school year. (Docket #1; Cole II Docket #1). However,
because certain events from the 2011/2012 school year provide context for
understanding the issues at play in this case, the Court will briefly address
the relevant facts from that time period as well.
Cole transferred to Tremper High School to teach social studies for the
2011/2012 school year. (Docket #36, Ex. 2 ¶ 4). However, prior to the
beginning of school, Cole realized that, as a non-air-conditioned school,
Tremper High School was too hot for her diabetes. (Docket #36, Ex. 2 ¶ 5).
Therefore, Cole submitted an accommodation request to the District
seeking a transfer or reassignment to a “regular education [position] at an
air-conditioned building” and “to be a stationary teacher.” (Docket #39 ¶ 6).
To support this request, Cole submitted a letter from her doctor that stated
that she needed an “entire work environment to be adequately cool and
ventilated and will require transfer if this cannot be accommodated.” (Docket
#39 ¶ 6). The District responded by transferring Cole to Lincoln Middle
School to teach social studies. (Docket #36, Ex. 2 ¶ 7). Cole did not have to
“compete” for that reassignment. (Docket #36, Ex. 2 ¶ 8).
In light of certain layoffs projected for the 2012/2013 school year, Cole
participated in the District’s “Arena” scheduling process in order to be
placed into her 2012/2013 school year position. (Docket #26 ¶ 27). Due to

Page 3 of 17

Cole’s seniority and credentials, the only remaining jobs from which she
could chose from within the Arena process for that year were special
education positions. (Docket #26 ¶¶ 28-29). In light of these options, Cole
began working at ITHSA—a building that has air conditioning—as a special
education teacher for the 2012/2013 school year. (Docket #26 ¶¶ 30-32 ).
Shortly thereafter, in September of 2012, Cole met with Principal Dr.
Beth Ormseth (“Dr. Ormseth”) to discuss Cole’s disability accommodations.
(Docket #36, Ex. 2 ¶ 11). Among other things, Cole and Dr. Ormseth
discussed: (1) transferring Cole out of special education due to stress; (2)
moving Cole’s office; (3) allowing Cole to use a refrigerator for insulin; and
(4) consolidating Cole’s classes onto a single level within the building.
(Docket #37, Ex. 12). However, as there were no regular education positions
currently open at ITHSA, Dr. Ormseth stated that Cole’s request for
reassignment out of special education “would be deferred to [human
resources].” (Docket #36, Ex. 2 ¶ 12). Other than the transfer request, Cole
admits that at this time Dr. Ormseth worked with to Cole to try and
accomplish each requested accommodation. (Docket #26 ¶¶ 38-46).
Approximately two months later, however, Cole met with the
District’s Executive Director of Business Services Sheronda Glass (“Glass”),
Dr. Ormseth, and Union Representative Juan Jimenez (“Jimenez”) to discuss
Cole’s oustanding accommodation needs, which included having her classes
arranged on the same floor, changing her Local Education Agency (“LEA”)
Representative, and transferring Cole to a regular education position.
(Docket #26 ¶ 46). During that meeting, Glass again explained that there were
no regular education positions available and that Cole’s schedule could not
be modified to confine her classes to a single room or floor based on students’
needs and the effect on other teachers. (Docket #26 ¶ 48). Dr. Ormseth also

Page 4 of 17

stated that the District would not change Cole’s LEA Representative because
the District did not find evidence that Cole’s representative had bullied her.4
(Docket #26 ¶¶ 49, 54).
As a result of this meeting, Cole began a period of administrative
leave for thirty days. (Docket #26, Ex. 2 ¶ 13). However, the parties dispute
the terms under which Cole began her leave. On the one hand, the District
claims that Cole had stated that working was “too difficult for her,” and that
the leave was mutually agreed upon. (Docket #26 ¶¶ 59-60). On the other
hand, Cole claims that she only stated that working without her requested
accommodations was “much more difficult” and that she was told her
supporting medical information was “invalid.” (Docket #36, Ex. 3 ¶¶ 58-60).
Though the parties agree that at least one of the goals of this administrative
leave was to gather medical documentation to support Cole’s
accommodation requests, Cole claims that she was “surprised” by having to
go on leave because in the past she was allowed to continue working while
the District attempted to accommodate her. (Docket #39 ¶ 13).
The events that occurred after the meeting are also in dispute. Cole
claims that she submitted four letters from various physicians and therapists
attesting to her need for a regular education position. (Docket #36, Ex. 2
¶ 15). The District argues that none of these letters sufficiently identified: (1)
the specific accommodations needed to address Cole’s medical conditions;
and (2) the reasons or bases for the purported accommodations. (Docket #39

4

The parties dispute the definition of an LEA Representative. (Compare
Docket #26 ¶ 50 with Docket #36, Ex. 3 ¶ 50). However, this dispute is immaterial
because Cole does not argue in her opposition to summary judgment that the
District’s handling of her LEA Representative situation constituted discrimination.
See Carroll v. Lynch, 698 F.3d 561, 568 (7th Cir. 2012) (arguments not raised at
summary judgment are waived).

Page 5 of 17

¶ 16; Docket #26 ¶¶ 61-67). To that end, Cole again met with the District on
December 13, 2014, to discuss these issues. (Docket# 36, Ex. 2 ¶ 16; Docket #26
¶¶ 68-70). Though the parties dispute whether Cole actually agreed to the
arrangement, it is undisputed that after the meeting Cole began a period of
medical leave. (Docket #36, Ex. 2 ¶ 18; Docket #38 ¶¶ 71-72).
Thereafter, on December 18, 2012, Cole submitted another formal
accommodation request, which included “reassignment to an honor or
regular education teaching position or one in which is self-paced.…” (Docket
#36, Ex. 2 ¶ 25). She also submitted a letter from her therapist, Jim Lucchesi,
which referenced, among other things, the need for Cole to be “reassign[ed]
to a mainstream classroom.” (Docket #36, Ex. 2 ¶ 26). The District claims that
this was the first time that they received documentation from a medical
provider supporting Cole’s request to transfer. (Docket #26 ¶ 74). Moreover,
during this time, Glass and Kupka exchanged various emails stating that
Cole’s situation would “become a project” for the District and that it would
“hold[] strong on this” despite “what medical loopholes [Cole] might
explore.” (Docket #36, Ex. 2 ¶¶ 28, 31).
After receiving the second accommodation request, Kupka responded
on behalf of the District and stated that he was “unable to accommodate
[Cole’s] current requests.” (Docket #39 ¶ 27). Cole thereafter wrote a followup email asking for clarification as to which requests the District was unable
to accommodate.5 (Docket #36, Ex. 2 ¶ 28). After the winter holiday, Kupka
repeated the same conclusion: that the District was unable to provide Cole
her requested accommodations. (Docket #36, Ex. 2 ¶ 29).

5

The District claims that any purported delay in response was due to the
winter holiday, which ended on January 3, 2013. (Docket #26 ¶ 29).

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Next, Cole directed her therapist to write a third letter to the District.
(Docket #36, Ex. 2 ¶¶ 27-34; Docket #26 ¶¶ 76-77). This January 8, 2013 letter,
however, did not reference reassignment. (Docket #36, Ex. 2 ¶¶ 27-34; Docket
#26 ¶ 82).
On January 15, 2013, Cole met with Kupka, Dr. Ormseth, and Jimenez
to discuss the accommodations proposed by Cole. (Docket #26 ¶ 84). During
that meeting, the parties established an accommodation plan for Cole which
did not include reassignment to a regular education position. (Docket #26
¶ 85). Cole returned to work the next day. (Docket #36, Ex. 2 ¶ 37-38).
Cole had little contact with the District regarding her accommodations
until the following school year. Then, just before the start of the 2013/2014
school year, the District held another meeting with Cole to discuss her preexisting accommodation plan. (Docket #26 ¶ 94). Cole claims that she had
inadequate notice of this meeting and was not offered the opportunity to
secure union representation. (Docket #36, Ex. 3 ¶¶ 94-97). Cole did not
express any issues with the accommodation plan. (Docket #39 ¶ 42).
Nonetheless, Cole claims that the District had continued to be aware
of her requests to be removed from special education. (Docket #36, Ex. 2 ¶ 41;
Docket #36, Ex. 3 ¶ 97). The District disputes this, and states that Cole’s plan,
along with her first accommodation plan made in January of 2013, enabled
Cole to perform all of the essential functions of her job. (Docket #39 ¶¶ 41, 98;
Docket #26 ¶90). Cole also claims that: (1) despite the District’s purported
knowledge of her outstanding desire to transfer, the District had failed to
inform her of open positions for the 2013/2014 school year that matched
Cole’s accommodation request; and (2) the District failed to properly
communicate with her thereafter. (Docket #36, Ex. 2 ¶¶ 42-45, 47). The
District disputes that any available regular education openings existed, and

Page 7 of 17

further claims that Cole did not express any interest in any position that may
have been available for the 2013/2014 school year.6 (Docket #39 ¶ 42).
Following the meeting, Cole submitted a fourth letter from Jim
Lucchesi that outlined various accommodations for Cole’s stress. (Docket
#36, Ex. 2 ¶ 48). The parties dispute the extent to which the District
responded to Cole following receipt of this document. (Docket #39 ¶¶ 50-54).
Cole then claims that she was informed of the need to submit a
transfer request in order to be considered for a reassignment. (Docket #36, Ex.
2 ¶ 58). Cole submitted her request on January 10, 2014. (Docket #36, Ex. 2
¶ 58). The parties again dispute whether the District properly responded to
Cole’s communications regarding the transfer. (Docket #39 ¶¶ 59-65).
On June 9, 2014, Cole met with Judy Rogers (“Rogers”) and Rade
Dimitrejevic to discuss two potential reassignment positions at Bradford
High School and Lakeview Technology Academy. (Docket #26 ¶ 101).
The District claims that it offered Cole these positions, which Cole rejected.
(Docket #26 ¶¶ 102-107). Cole, however, states that: (1) the “offered”
positions were not made unconditionally to her (Docket #38 ¶ 102); and (2)
the District failed to suggest other potential teaching opportunities that were
available (Docket #39 ¶ 70).7 Moreover, though the District claims that Cole

6

The parties also dispute whether the part-time nature of some of these
positions and/or the qualifications that Cole had to teach certain subjects affected
the District’s decision not to offer Cole with certain reassignment options. (Docket
#39 ¶¶ 42-45).
7

At least one of these positions involved teaching a subject for which Cole
had no license, economics. (Docket #39 ¶ 70). The parties dispute the ability and
willingness of the District to obtain “emergency certifications” for teachers who are
not certified, but are assigned, to teach regular education subjects. (Docket #39
¶¶ 71-74). In addition, the parties dispute whether Cole had expressed a disinterest
in transferring to a middle school. (Docket #39 ¶ 70).

Page 8 of 17

rejected its offer to teach at Lakeview Technology Academy because it was
a part-time position (Docket #26 ¶ 107), Cole claims that she did apply for
the job, but was not hired. (Docket 38 ¶ 107). After the meeting, Rogers
referred Cole to the District’s WECAN website, which posted employment
opportunities in the District. (Docket #38 ¶ 109). Rogers also referred Cole to
the District’s attorney for further questions. (Docket #38 ¶ 109).
On September 26, 2014, the District made a third reassignment offer
to Cole to teach United States History to 9th graders at ITHSA. (Docket #36,
Ex. 2 ¶ 83). Cole rejected that position. (Docket #36, Ex. 2 ¶¶ 84-85). She
claims that she did not feel the position was suitable to her needs and would
have forced her to displace a teacher in order to accept the job. (Docket #36,
Ex. 2 ¶¶ 84-85). As a result of this alleged lack of accommodation, Cole’s
thoughts of hopelessness and suicide peaked in 2015, when she left school for
the emergency room. (Docket #36, Ex. 2 ¶ 85).
2.

LEGAL STANDARD
When a party files a motion for summary judgment, it is their

“contention that the material facts are undisputed and the movant is entitled
to judgment as a matter of law.” Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund,
778 F.3d 593, 601 (7th Cir. 2015) (citing Fed. R. Civ. P. 56(a)). “Material facts”
are those facts which “might affect the outcome of the suit,” and “summary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is,
if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, to have a genuine dispute about a material fact, a party opposing
summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 474 U.S. 574, 586 (1986); namely, the party in opposition
Page 9 of 17

“must set forth specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e).
“Where…the movant is seeking summary judgment on a claim as to
which it bears the burden of proof, it must lay out the elements of the claim,
cite the facts it believes satisfies these elements, and demonstrate why the
record is so one-sided as to rule out the prospect of a finding in favor of the
non-movant on the claims.” Hotel 71 Mezz, 778 F.3d at 601. In analyzing
whether summary judgment should be granted, a court must draw all
reasonable inferences from the materials before it in favor of the non-moving
party. Id. When a court denies a motion for summary judgment, it “reflects
the court’s judgment that one or more material facts are disputed or that the
facts relied on by the motion do not entitle the movant to judgment as a
matter of law.” Id. at 602.
3.

ANALYSIS
“Failure to accommodate is a form of ADA discrimination.” Hooper v.

Proctor Health Care Inc., 804 F.3d 846, 851 (7th Cir. 2015) (citing 42 U.S.C.
§ 12112(b)(5)(A)). “In order to establish a prima facie ADA claim for failure
to accommodate, a plaintiff must establish that: (1) the plaintiff is a qualified
individual with a disability; (2) the employer was aware of the disability; and
(3) the employer failed to reasonably accommodate the plaintiff’s disability.”
Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir. 2015).
“[T]he standard rule is that a plaintiff must normally request an
accommodation before liability under the ADA attaches.” Jovanovic v.
Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000). Seventh Circuit case law
has “consistently held that disabled employees must make their employers
aware of any nonobvious, medically necessary accommodations with
corroborating evidence such as a doctor’s note or at least orally relaying a
Page 10 of 17

statement from a doctor, before an employer may be required under the
ADA’s reasonableness standard to provide a specific modest accommodation
the employee requests.” Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 976
(7th Cir. 2009).
After an employee has disclosed that she has a disability, the
ADA requires an employer to “engage with the employee in an
‘interactive process’ to determine the appropriate accommodation under
the circumstances.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th
Cir.2 005) (quoting Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir.
2000)). “[W]hile an employer’s failure to engage in the interactive process
alone is not an independent basis for liability, it is actionable ‘if it prevents
identification of an appropriate accommodation for a qualified individual.’”
Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (internal
citations omitted); see also Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281,
1286 (7th Cir. 1996) (holding that an employer should have sought an
explanation from the doctor if it had concerns with the employee’s medical
diagnosis). “When there is a communication breakdown, [courts] are
required ‘to isolate the cause of the breakdown and then assign
responsibility.’” Ekstrand, 583 F.3d at 976 (internal citations omitted).
“[A] plaintiff/employee (to defeat a defendant/employer’s motion for
summary judgment) need only show that an ‘accommodation’ seems
reasonable on its face, i.e., ordinarily or in the run of cases.” U.S. Airways, Inc.
v. Barnett, 535 U.S. 391, 401 (2002). “Once the plaintiff has made this showing,
the defendant/employer then must show special (typically case-specific)
circumstances that demonstrate undue hardship in the particular
circumstances.” Id.

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“[T]he ADA…mandate[s] that an employer appoint employees with
disabilities to vacant positions for which they are qualified, provided that
such accommodations would be ordinarily reasonable and would not present
an undue hardship to that employer.” E.E.O.C. v. United Airlines, Inc., 693
F.3d 760, 761 (7th Cir. 2012). However, “there are significant limitations on
an employer’s potential obligation to reassign a disabled employee as
reasonable accommodation.” Gile, 95 F.3d at 499. “An employer may be
obligated to reassign a disabled employee, but only to vacant positions; an
employer is not required to ‘bump’ other employees to create a vacancy so
as to be able to reassign the disabled employee. Nor is an employer obligated
to create a ‘new’ position for the disabled employee.” Stern v. St. Anthony's
Health Ctr., 788 F.3d 276, 291 (7th Cir. 2015) (internal citations omitted); see
also Lasisi v. Follett Higher Educ. Grp., Inc., 598 F. App’x 437, 442 (7th Cir. 2015)
(finding a defendant could be “liable for refusing to reassign [the plaintiff]
because [the plaintiff] failed to justify the accommodation request with
evidence of its necessity. Moreover, the record contain[ed] no evidence of a
vacant position for which [the plaintiff] was qualified.”). “[W]hen an
employee requests a transfer…and the employer offers alternative reasonable
accommodation, which the employee then refuses, the employer cannot be
liable for failing to reasonably accommodate the employee by not
transferring him to another position.” Gile, 95 F.3d at 499.
“‘The duty of reasonable accommodation is satisfied when the
employer does what is necessary to enable the disabled worker to work in
reasonable comfort.’” Sears, Roebuck & Co., 417 F.3d at 803 (internal citations
omitted). “An employer is not obligated to provide an employee the
accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” Gile, 95 F.3d at 499.
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At this juncture, there remains a significant number of disputed
material facts in this case. As a threshold matter, the District states that it
does not dispute the first and second elements of Cole’s prima facie failure
to accommodate claim. (Docket #27 at 6); see also Dunderdale, 807 F.3d at 853.
However, based on the parties briefs, there does appear to be some dispute
as to when the District’s duty to accommodate Cole’s disabilities attached.
(Compare Docket #27 at 6 (stating that the District does not contest that it
was “aware” of Cole’s disabilities) with Docket #27 at 9 (explaining that
as of November 8, 2012, the District was neither aware of the specific
accommodations that Cole was requesting nor the specific reason for those
accommodations) and Docket #36 at 19 (arguing that the District’s duty to
reassign the plaintiff attached as early as September of 2012)).
It is important to note here that Cole suffers from two disabilities,
diabetes and major depression. (Docket #26 ¶¶ 10-11). And, the thrust of her
failure to accommodate claim relates to the District’s failure to reassign Cole
to a different teaching position. (See Docket #36 at 13-27). For her part, Cole
suggests that this reassignment request stemmed from Cole’s “stress” and,
presumably major depression. (Docket #26 at 19). In any case, the District’s
duty to accommodate Cole’s request for reassignment based on her
disabilities was not triggered until she informed the District, with proper
corroborating evidence, of the necessity of this accommodation. See Ekstrand,
583 F.3d at 976. The parties not only dispute when this was accomplished,
but they also dispute whether this request to transfer remained outstanding
thereafter. (Docket #39 ¶ 41).
In addition, the third element of a Cole’s reasonable accommodation
claim—whether the District failed to reasonably accommodate her
disabilities—is undoubtedly in dispute. (Docket #27 at 6). The District does
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not argue that Cole’s requested accommodation of transfer was per se
“unreasonable”—it had, after all, offered to transfer Cole at least three times
during the relevant time period. (See Docket #27 #40); see also Barnett, 535 U.S.
at 401. However, it does argue that: (1) the accommodations provided by the
District satisfied its duty to “enable” Cole to “to perform the essential
functions of” her job; and (2) that it had no duty to reassign Cole to a
different position because either there were no positions available for the
transfer, Cole was not qualified for the positions that were available, or that
Cole had rejected her opportunities to transfer. (Docket #27).
Numerous issues of fact underlie the District’s arguments. First, the
District ignores the crux of Cole’s claim: that the failure to transfer Cole out
of special education exacerbated her disabilities to the point of mental
breakdown. (Docket #27, #40). Thus, there exists an issue of fact as to whether
the multiple accommodations offered by the District did indeed satisfy its
obligations under the ADA. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934
(7th Cir.1995) (“If the disability affects the employee’s work ability, the
employer must then consider if a ‘reasonable accommodation’ can be
made.”). Second, the plaintiff claims that during the transition from the
2012/2013 to the 2013/2014 school year there were numerous available
positions for which she was qualified and not considered. (Docket #36, Ex. 2
¶ 42). Though the District was undoubtedly not required to promote Cole as
part of its efforts to accommodate her, Dalton v. Subaru-Isuzu Auto., Inc., 141
F.3d 667, 679 (7th Cir. 1998), the Court cannot determine whether the
District’s placement efforts were appropriate given the parties’ disputes
about: (1) whether the plaintiff could have been accommodated through
various part-time positions; (2) whether Cole stated that she should not be
considered for middle school positions; and, (3) whether Cole’s certifications
Page 14 of 17

imposed a genuine barrier to her teaching options. (Docket #36 at 21).
Moreover, Cole claims that of the three positions she was “offered,” she had
been rejected for at least one, a process which seems inconsistent with the
reassignment procedure followed by the District when it transferred Cole for
the 2011/2012 school year.8 (Docket #36, Ex. 2 ¶¶ 7-8, 67, 76). Based on these
facts, the Court remains unclear as to what other factors, if any, played into
the calculus of determining whether (and how) to transfer Cole to a different
teaching position within the District. And, only with a more complete picture
of these facts, can the Court properly evaluate whether the District’s
purported referral of Cole to the public job posting site, WECAN, was
proper. Cf. Dunderdale, 807 F.3d at 857 (“Furthermore, it was Dunderdale’s
duty to search Skynet for job openings while he was receiving benefits on
EIS, and his failure to do so does not establish that United failed to
reasonably accommodate his disability.”).
It also remains unclear as to who is to blame for the seemingly
multiple breakdowns in communications between the parties. Cf. E.E.O.C. v.
Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005) (An “employer may not
simply reject it without offering other suggestions or at least expressing a

8

The District makes a valid argument that Cole’s rejection of transfer
opportunities may effect whether its efforts to accommodate her were reasonable.
See Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344-45 (7th Cir. 1996)
(concluding that a plaintiff’s failure to accept reasonable accommodations
“render[ed] him unqualified under the ADA.”) (citing 29 C.F.R. § 1630.9(d)). Here,
however, it is unclear whether: (1) Cole’s rejection of the Bradford High School
position matters in light her apparent “acceptance” of the Lakeview Technology
Academy position; and (2) the Bradford High School, Lakeview Technology
Academy, and ITHSA reassignment opportunities were indeed first and only
available transfer positions available to Cole. Thus, the Court cannot decide on the
current record what effect Cole’s rejections have on her claim.

Page 15 of 17

willingness to continue discussing possible accommodations.”). On the one
hand, Cole claims that the District frequently failed to respond to her many
requests for accommodations and information, which includes the period of
time in which she was alleged “forced” to take administrative and medical
leave. (Docket #36 at 17-18). On the other hand, the District maintains that it
consistently responded to Cole’s requests with all of the information that it
was able to provide at the given time. (Docket #39 ¶¶ 50, 56, 59). Without
further factual development on the extent of the parties’ communication
efforts and the motivations behind—and terms of—Cole’s leaves of absence,
the Court cannot fairly assign responsibility for the purported breakdown in
the interactive process between Cole the District. Ekstrand, 583 F.3d at 976.
With respect to Cole’s retaliation claim “[t]he ADA prohibits
employers from retaliating against employees who assert their right under
the act to be free from discrimination.” Dickerson v. Bd. of Trustees of Cmty.
Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (citing 42 U.S.C.
§ 12203(a)). A plaintiff can establish a valid case of retaliation using either the
direct or indirect method of proof. See Kersting v. Wal–Mart Stores, Inc., 250
F.3d 1109, 1117 (7th Cir.2001). “To establish a case of retaliation under the
direct method of proof, a plaintiff must show (1) she engaged in a statutorily
protected activity; (2) she suffered an adverse action; and (3) a causal
connection between the two.” Casna v. City of Loves Park, 574 F.3d 420, 426
(7th Cir. 2009).
Cole claims that her request to transfer was not satisfied in retaliation
for her requests for reasonable accommodations and her EEOC complaints.
(Docket #36 at 27). Both the manner in which Cole was allegedly encouraged
to withdraw her EEOC complaint and the various emails exchanged between
District employees indeed suggest that Cole’s requests may not have been
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handled promptly due to her “history” with the District. (Docket #36 at 2728). Thus, the Court cannot fairly dispose of this claim before trial.
4.

CONCLUSION
In sum, the Court concludes that there are genuine issues of material

fact with respect to Cole’s claim for a reasonable accommodation and for her
claim of retaliation under the ADA and the Rehabilitation Act. Therefore, the
District’s motion for summary judgment pursuant to Rule 56 (Docket #25)
will be denied.
Accordingly,
IT IS ORDERED that the District’s motion for summary judgment
(Docket #25) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Cole’s motion to file a surreply
(Docket #46) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 11th day of April, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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