McFarland-Laswson v. US Department of Housing and Urban Development et al

Filing 180

ORDER signed by Magistrate Judge William E Duffin on 1/26/2022. The plaintiff's motion for clarification (ECF No. 179 ) is GRANTED. (cc: all counsel and mailed to pro se party)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMESETTA MCFARLAND-LAWSON,
Plaintiff,
v.

Case No. 16-CV-685

MARCIA FUDGE,
SECRETARY OF HOUSING
AND URBAN DEVELOPMENT,
Defendant.
ORDER
On January 14, 2022, plaintiff Jamesetta McFarland-Lawson filed a motion for
clarification. (ECF No. 179.) She filed that motion both with this court and with the
Seventh Circuit Court of Appeals. (See id.) Because McFarland-Lawson’s case is pending
before this court, this court will grant her motion for clarification and address the
questions that she asks in that motion.
In her motion, McFarland-Lawson asks this court to clarify what the Court of
Appeals meant in its April 19, 2021 decision when it said it was vacating that portion of
the dismissal of her complaint about “whether McFarland-Lawson filed (but did not
exhaust) a grievance over delays in her ability to return from unpaid indefinite enforced

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leave[.]” (ECF Nos. 160, 179.) She also asks this court to explain how that decision
relates to the government’s motion for summary judgment that is pending before this
court. (ECF No. 170.)
1. The Court of Appeals’ Decision
On July 17, 2019, Magistrate Judge David Jones issued an order dismissing
McFarland-Lawson’s second amended complaint. (See ECF No. 124.) In that order,
Judge Jones dismissed all of McFarland-Lawson’s claims, concluding that the court
lacked the jurisdiction—in other words, lacked the authority—to hear them. (Id. at 2.)
The Court of Appeals disagreed with Judge Jones as to one of McFarlandLawson’s claims—specifically, her claim that alleged discrimination when, “On April 4,
2013, she learned that she needed to authorize an extension of an independent medical
examination and review of her medical files, thus delaying a determination of when she
would be allowed to return to work.” (ECF No. 160 at 11.) As to this claim, the Court of
Appeals stated that there was a factual dispute as to whether McFarland-Lawson had
exhausted her administrative remedies. Therefore, Judge Jones should not have
dismissed that claim for lack of jurisdiction. Consequently, the Court of Appeals vacated
that portion of Judge Jones’s order.
When the Court of Appeals vacates part of an order, it means that the Court of
Appeals has set aside that part of the order. When the Court of Appeals vacates or sets
aside part of an order, it also remands the case—in other words, sends the case back to

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the trial court—so that the trial court can reconsider the part of the order that has been
set aside.
Here, because Judge Jones is no longer available, the Court of Appeals
remanded—or sent—McFarland-Lawson’s case to this court, with Judge Duffin
presiding, to reconsider the portion of Judge Jones’s order that dismissed McFarlandLawson’s claim that alleged discrimination when, “On April 4, 2013, she learned that
she needed to authorize an extension of an independent medical examination and
review of her medical files, thus delaying a determination of when she would be
allowed to return to work.” The Court of Appeals did not instruct this court to
reconsider any other portions of Judge Jones’s order—in other words, all of McFarlandLawson’s other claims remain dismissed. (See ECF No. 160 at 3 (“[W]e otherwise
AFFIRM the dismissal of the complaint.”).)
In reconsidering only that portion of Judge Jones’s order, this court must
determine whether McFarland-Lawson filed a grievance relating to that claim with her
union, the American Federation of Government Employees. If this court concludes that
McFarland-Lawson filed such a grievance, it must also determine whether she
exhausted that remedy—in other words, whether she followed the steps that her
collective bargaining agreement requires her to follow once the Department of Housing
and Urban Development had denied her grievance. McFarland-Lawson and the
government, represented by Attorney Pawlak, can file motions—like a motion for

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summary judgment—arguing that this court should reach one conclusion or another in
answering those questions.
2. The government’s pending motion for summary judgment
A motion for summary judgment is “a request that the court enter judgment
without a trial because there is no genuine issue of material fact to be decided by a factfinder—that is, because the evidence is legally insufficient to support a verdict in the
nonmovant's favor.” Motion for Summary Judgment, Black's Law Dictionary (11th ed.
2019). What that means in this case is that the government argues it has evidence to
show that McFarland-Lawson filed a grievance with her union but did not first exhaust
her administrative remedies relating to that grievance. Because she did not exhaust her
administrative remedies relating to that grievance, the government argues, this court
does not have the authority to hear her claims about the delays in her ability to return
from unpaid indefinite enforced leave. Therefore, the government argues, her claims
should be dismissed.
3. What happens next?
McFarland-Lawson is entitled to respond to the government’s motion for
summary judgment. See Civ. L. R. 56. She should follow the instructions provided in the
Civil Local Rules in her response. See id. Her response is due by February 2, 2022.
Should she need more time, she may file a motion asking for it.

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As this court explained at the December 2, 2021 telephonic hearing, it will not
rule on McFarland-Lawson’s motion to compel until after ruling on the government’s
motion for summary judgment. (See ECF Nos. 175, 176.)
IT IS THEREFORE ORDERED that the plaintiff’s motion for clarification (ECF
No. 179) is GRANTED.
Dated at Milwaukee, Wisconsin this 26th day of January, 2022.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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