Walker v. Children's Hospital of Wisconsin

Filing 43

ORDER signed by Judge Lynn Adelman on 11/8/19 granting 27 Motion for Summary Judgment. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHERRY WALKER,
Plaintiff,
v.

Case No. 17-C-0583

CHILDREN’S HOSPITAL OF WISCONSIN,
Defendant.
______________________________________________________________________
DECISION AND ORDER
Sherry Walker commenced this action against her former employer, Children’s
Hospital of Wisconsin, alleging that she was terminated in violation of Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act, and
42 U.S.C. § 1981. She alleges that Children’s terminated her because of her race and
because of a perceived disability. Before me now is Children’s motion for summary
judgment.
I. BACKGROUND
Walker, an African-American woman, was employed by Children’s as a
“performance analytics intelligence analyst” from September 29, 2014 to May 6, 2016.
In this position, Walker worked in Children’s strategic-planning department and was
responsible for analyzing information and providing it to Children’s administrative and
medical leaders, who used the information to make the company’s strategic decisions.
At all times, Walker performed the analysis function of her position to Children’s
satisfaction. However, beginning in May 2015, and continuing over the course of about
one year, Walker made increasingly bizarre accusations against her coworkers and
supervisors. Walker initially complained that her coworkers were saying negative things

about her and that her supervisors were monitoring her emails and internet usage. She
eventually accused her coworkers and supervisors of secretly altering her work product
and spying on her from a van in the company parking lot. Children’s repeatedly
investigated Walker’s accusations and found nothing to substantiate them. It
recommended that Walker consider taking advantage of the company’s employeeassistance program (“EAP”), which was provided by an independent contractor known
as Empathia, Inc. The EAP assisted employees with personal or work-related problems
that affected their job performance, health, or mental or emotional well-being. Def.
Proposed Finding of Fact (“PFOF”) ¶ 39. Walker did not immediately enroll in the
program, and she continued to accuse her coworkers of spying on her, bullying her, and
altering her work product, among other things.
Eventually, Children’s determined that Walker’s unsupported accusations were
placing a strain on her department and the company. Walker’s belief that her coworkers
and supervisors were targeting her interfered with her ability to collaborate with other
team members, and the coworkers she accused of wrongdoing felt hurt by her
accusations. Moreover, Walker’s accusations caused Children’s to expend resources
investigating her claims, which always turned out to be baseless. For these reasons, in
April 2016, Walker’s supervisors informed Walker that Children’s would make her
participation in EAP mandatory. Her supervisors told her that Children’s was imposing
this requirement because it believed that EAP would provide her with “access to
resources that will help build trust with her co-workers and alleviate the impact her
accusations were causing to her relationships with her team members.” Def. PFOF
¶ 91.
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During the meeting in which Walker’s supervisors told her that she would be
required to attend EAP sessions, they also presented her with Empathia’s authorization
form for disclosure of protected health information. This was a form that Walker was
expected to sign so that Empathia could inform Walker’s supervisors whether she was
attending EAP sessions and following Empathia’s recommendations. If Walker did not
sign the form, Empathia would not share such information with Walker’s supervisors, for
then it would be concerned that disclosure of the information might violate the Health
Information Portability and Accountability Act (“HIPAA”).
Walker told her supervisors that she did not want to sign Empathia’s form
because she did not want her health information disclosed. In response, Walker’s
supervisors assured her that neither Empathia nor Children’s would disclose her health
records; rather, they were interested only in knowing whether Walker attended the EAP
sessions and whether she was following Empathia’s recommendations.
During a subsequent meeting, Walker agreed to participate in EAP sessions, but
she again refused to sign the authorization form. Her supervisors again told her that
they needed her to sign the form so that they could confirm that she was attending the
sessions and following Empathia’s recommendations. They also told Walker that if she
did not sign the form, it would affect her employment. Walker said that she understood.
Walker’s supervisors told her that she must sign the form by April 28, 2016.
Walker did not sign the form by April 28, 2016. For this reason, Children’s
suspended her employment. However, over the next few days, Walker and her
supervisors continued to discuss the form in an effort to allay her concerns. After
several discussions, Children’s agreed to modify the form such that the only information
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Empathia would be allowed to share with Children’s was whether and when she
attended EAP sessions. Children’s dropped its insistence that Empathia be allowed to
share whether Walker was following its recommendations.
Walker still refused to sign the form. The sticking point was a clause
acknowledging that Empathia could not prevent Children’s from redisclosing information
it received from Empathia. Walker wanted this clause removed from the form, but
Empathia would not agree to remove it because Empathia had no control over
Children’s and could not prevent Children’s from redisclosing any information it shared.
Children’s told Walker that it had no interest in learning any specific information about
her EAP sessions and that the only information Empathia would disclose to it is whether
she attended the sessions.
On May 6, 2016, after Walker made clear that she would not sign the form as
long as it contained the redisclosure clause, Children’s terminated her employment.
Walker then filed a charge of discrimination with the Equal Employment Opportunity
Commission in which she alleged that Children’s had discriminated against her on the
basis of race and disability. After the EEOC issued Walker a right-to-sue letter, she
commenced this lawsuit. She alleges that Children’s discriminated against her on the
basis of race and on the basis of a perceived disability.
II. DISCUSSION
Summary judgment is required where “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). When considering a motion for summary judgment, I view the evidence in the
light most favorable to the non-moving party and must grant the motion if no reasonable
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juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255
(1986).
A.

Disability Discrimination
The Americans with Disabilities Act provides that an employer may not

“discriminate against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). 1 The ADA defines “disability” as follows: (1) a physical or mental
impairment that substantially limits one or more major life activities; (2) a record of such
an impairment; or (3) being regarded as having such an impairment. Id. § 12102(1). In
the present case, Walker does not allege that she has a physical or mental impairment
that substantially limits one or more major life activities or that she has a record of such
an impairment. Instead, she contends that Children’s “regarded” her as having a
physical or mental impairment, and that it discriminated against her based on this
perceived impairment.
Children’s contends that Walker cannot show that it regarded her as having a
physical or mental impairment that substantially limited a major life activity. However, to
meet the definition of “disability” under the “regarded as” prong, Walker does not have
to show that Children’s regarded her as being substantially limited in a major life activity.

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The legal standards governing a claim for disability discrimination under the
Rehabilitation Act are largely the same as those under the ADA. See Jaros v. Ill. Dep’t
of Corr., 684 F.3d 667, 671 (7th Cir. 2012). In the present case, the parties identify no
relevant differences between the two laws. Thus, although the analysis in the text
focuses on the ADA, it applies with equal force to Walker’s claims under the
Rehabilitation Act.
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Rather, under recent amendments to the ADA, “[a]n individual meets the requirement
of ‘being regarded as having such an impairment’ if the individual establishes that he or
she has been subjected to an action prohibited under this chapter because of an actual
or perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). In the present case, the
evidence arguably suggests that Children’s regarded Walker as having a mental
impairment that caused her to be unusually suspicious of her coworkers and
supervisors. Thus, for purposes of this motion only, I will assume that Walker meets the
ADA’s definition of “disability” under the “regarded as” prong.
To prevail on her claim, Walker must also show that she is a “qualified
individual,” which the ADA defines 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). However, because Walker is
proceeding under the “regarded as” prong, Children’s was not required to provide her
with a reasonable accommodation. See 42 U.S.C. § 12201(h); Majors v. General Elec.
Co., 714 F.3d 527, 535 n.4 (7th Cir. 2013); Powers v. USF Holland, Inc., 667 F.3d 815,
823 n.7 (7th Cir. 2011). Thus, to succeed, Walker must show that she was performing
the essential functions of her position at the time Children’s allegedly discriminated
against her on the basis of a perceived impairment.
Children’s does not dispute that Walker adequately performed the primary
function of her position, which involved the preparation of materials to assist Children’s
decisionmakers with strategic planning. However, by the time it required her to attend
EAP sessions, Children’s had determined that Walker was not working well with her
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coworkers and that her string of baseless accusations was disrupting the department.
The ability to work reasonably well with others and not disrupt the workplace are
essential functions of any position. See Williams v. Motorola, Inc., 303 F.3d 1284,
1290–91 (11th Cir. 2002) (“An employee’s ability to handle reasonably necessary stress
and work reasonably well with others are essential functions of any position. Absence of
such skills prevents the employee from being ‘otherwise qualified.’”); Palmer v. Circuit
Court of Cook County, Ill., 117 F.3d 351, 352 (7th Cir. 1997) (recognizing that employer
may terminate mentally impaired employee if mental impairment causes disruptions in
the workplace). Thus, although Children’s insistence that Walker attend EAP may have
been an act taken on the basis of a perceived mental impairment, it would not be an
illegal form of discrimination on the basis of disability if it was taken in response to
Walker’s demonstrated distrust of her coworkers and supervisors.
Here, there is no evidence to suggest that Children’s was not genuinely
concerned that Walker’s unfounded accusations against her coworkers and supervisors
harmed morale in the department and required Children’s to waste resources
investigating her claims. To the contrary, the record compels the conclusion that
Children’s made Walker’s participation in EAP mandatory to address those concerns.
On April 26, 2016, Walker’s supervisor, Lisa Vande Yacht, wrote Walker a letter in
which she explained that, as a result of Walker’s many accusations, “staff resources
have been expended for allegations that have proven to be baseless.” ECF No. 30-5.
Vande Yacht also explained that Children’s wanted “to work towards establishing a
more trusting work environment,” which would involve Walker “becoming less distrusting
of Children’s and [her] peers.” Id. The letter continued:
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One of the first steps in assisting you in this regard involves having a
consultation with our Employee Assistance Program, Empathia. Empathia
is a valuable resource for Children’s employees. By speaking with the
Empathia team, you will be able to confidentially discuss current concerns
that you are having with the work environment. Empathia, in turn, will work
with you to determine a plan for moving forward.
Id.

In her response to Children’s motion for summary judgment, Walker does not
dispute that she had trust issues involving her coworkers and supervisors or that EAP
sessions might have been a constructive way to deal with those issues. Instead, she
contends that Children’s should have allowed her to attend EAP sessions without
signing the authorization form. Walker points out that the form itself states that an
employee may participate in EAP without signing the form, and she contends that
Children’s should have allowed her to participate without signing the form as a
reasonable accommodation.
It is true that the form states that an employee may participate in EAP even if he
or she refuses to sign the authorization form. But that provision was designed to apply
to a situation in which Children’s did not make the employee’s participation in EAP
mandatory and insist on receiving confirmation that the employee attended the
sessions. In Walker’s case, Children’s determined that her continued employment was
conditioned on her attending EAP sessions, and thus Children’s needed confirmation
that Walker was attending the sessions, which Empathia could not provide unless
Walker signed the authorization form. Lisa Vande Yacht explained this to Walker in an
email:
As we’ve made clear, you can voluntarily seek assistance from EAP
regardless of whether you provide confirmation to us that you’ve done so.
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We would never condition your right to receive EAP services on providing
us with such confirmation. But we can and are conditioning your ongoing
employment on providing confirmation that you have sought EAP services
and are complying with EAP recommendations. If we do not receive
confirmation that you’ve consulted with and followed recommendations
from EAP in circumstances where we have every right to require such
confirmation, your refusal constitutes insubordination and will, if not
rectified, cost you your job.
ECF No. 35-3 at p. 12 of 29.

Moreover, as explained above, Children’s had no obligation to provide Walker
with a reasonable accommodation. Walker does not claim to have had a physical or
mental impairment that substantially limited one or more major life activities and that
required a reasonable accommodation. Rather, she contends that Children’s regarded
her as having a physical or mental impairment. Under the ADA, an employer is not
required to provide a reasonable accommodation to an employee who meets the
definition of “disability” only under the “regarded as” prong. 42 U.S.C. § 12201(h). Only
if Walker proved that she had a mental impairment that prevented her from signing the
authorization form could Children’s waiver of that requirement be considered a required
reasonable accommodation. But because Walker does not claim that she had such an
impairment at the time Children’s terminated her employment, she cannot succeed on a
reasonable-accommodation claim.
Walker also points out that she received two positive employment evaluations
during her tenure at Children’s, and that they do not criticize her for causing disruptions
in the workplace. However, the employment evaluations focus primarily on the quality of
Walker’s work rather than on her behavior. As noted above, Children’s does not dispute
that Walker always produced satisfactory work-product. Instead, the problem was her
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distrust of others, which harmed the morale of the department and prevented Walker
from working as part of a team. Walker is correct that the performance evaluations do
not document her trust issues or any disruptions she caused within the department. But
one of the performance evaluations was completed in January 2015, before Walker
began to engage in her distrustful behavior. See ECF No. 35-3 at p.13 of 29. The other
was completed in November 2015, five months before Children’s decided that Walker’s
distrust of others was becoming a problem. See ECF No. 35-3 at p.17 of 29. Thus, the
absence of criticism in Walker’s performance evaluations is not evidence from which a
jury could reasonably conclude that Children’s is lying when it says it was concerned
with Walker’s trust issues.
In short, the only reasonable conclusion that may be drawn from the record is
that Children’s determined that Walker’s unfounded complaints against her coworkers
and supervisors placed a strain on the department. Based on this determination,
Children’s required Walker to attend EAP sessions and to allow the EAP provider to
confirm her attendance. When Walker refused to sign the authorization form allowing
the EAP provider to confirm her attendance, Children’s terminated her employment.
Based on these facts, a reasonable jury could not find that Children’s unlawfully
discriminated against Walker on the basis of a perceived disability. I will grant Children’s
motion for summary judgment on her claims under the ADA and the Rehabilitation Act.
B.

Race Discrimination
Walker also alleges a claim for race discrimination under Title VII and 42 U.S.C.

§ 1981. However, Walker points to no evidence that would support such a claim. Her
only reference to race discrimination in her brief is to note that she was “a Black woman
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in an overwhelmingly White professional employment environment.” ECF No. 35 at
p.13. That, by itself, does not prove race discrimination. Moreover, Walker points to no
similarly situated employee who was not black and who received more favorable
treatment than her. Finally, as discussed above, Children’s had legitimate,
nondiscriminatory reasons for terminating her, namely, Walker’s inability to work well
with her colleagues and her refusal to sign the authorization form. No evidence in the
record suggests that these reasons were pretexts for race discrimination. Accordingly, I
will grant summary judgment to Children’s on Walker’s claims under Title VII and
§ 1981. See Reed v. Freedom Mortg. Corp., 869 F.3d 543, 547 (7th Cir. 2017) (noting
that, for race-discrimination claims, “the ultimate legal question ‘is simply whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff’s race . . .
caused the discharge or other adverse employment action’”).
III. CONCLUSION
For the reasons stated, IT IS ORDERED that Children’s motion for summary
judgment (ECF No. 27) is GRANTED. The Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 8th day of November, 2019.

s/Lynn Adelman_______
LYNN ADELMAN
United States District Judge

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