Sturz v. State of Wisconsin Department of Corrections

Filing 46

ORDER granting in part and denying in part 16 Motion for Summary Judgment. Signed by Chief Judge Barbara B. Crabb on 7/20/09. (krj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------W EN D Y STURZ, OPINION and ORDER Plaintiff, 0 8 - cv -6 2 5 - b b c v. S TA T E OF WISCONSIN DEPARTMENT OF CORRECTIONS, D efendan t. --------------------------------------------P lain tiff Wendy Sturz leads a challenging life. She suffers from a degenerative joint d isease that makes it difficult for her to engage in many activities most people take for granted, such as walking, reaching and even sleeping. In 2003 and 2004, plaintiff was w o r kin g as a probation and parole agent for defendant Wisconsin Department of Co rrections. She requested a number of accommodations for her condition, including an electric door to get into the office building, maintenance of the parking lot after inclement w e ath er, a reduced workload and eliminating home visits that threatened her health and safety. Although defendant approved a number of her requests, most were not implemented. A fter waiting for more than a year, plaintiff decided she could not wait any longer and

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r eti re d. Plaintiff contends that defendant's failure to accommodate her disability violated her rights under the Rehabilitation Act, 29 U.S.C. § 794, and led to her constructive discharge. D efendan t's motion for summary judgment is ripe for review. I will grant the motion with resp ect to plaintiff's claim that defendant failed to accommodate her request to work from ho m e because she has failed to show that the policy prohibiting that request is unreasonable. The motion will be denied in all other respects because a reasonable jury could find that d efen dan t violated the Rehabilitation Act by failing to provide the remaining requests and that defendant's failure led to plaintiff's constructive discharge. F ro m the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

U N D IS PU T ED FACTS A. Plaintiff's Disability Plaintiff Wendy Sturz suffers from chondromalacia (a softening of the back of her knee cap), Ehlers Danlos Syndrome (loose ligaments) and arthritis. As a result of Ehlers D anlos Syndrome, plaintiff has unstable joints and is prone to sprains and dislocations. The co n ditio n affects joints in her knees, shoulders, back, neck and ankles. Plaintiff's joint disease is degenerative, meaning that the cartilage in her joints is eroding in her knees,

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elbo w s, shoulders and ankles. This causes her significant pain when she goes up and down stairs, gets up from chairs and reaches for things. Despite more than 20 surgeries plaintiff h as had performed, she cannot walk or stand without pain for more than five minutes and has difficulty maintaining her balance. She walks with a limp and a slow gait. She also has d ifficu lty sitting for any period of time and moving heavy objects. Driving for more than 3045 minutes causes pain in her lower back and knees.

B . Plaintiff's Requests for Accommodations Plaintiff began working as a probation and parole officer for defendant Wisconsin D e partm en t of Corrections in 1993. Defendant receives federal funding. In 2003 and 2 0 0 4, plaintiff worked at defendant's office in the village of Ellsworth. Defendant did not have any problems with plaintiff's work performance. As early as 2000, defendant was aware that its Ellsworth office had problems with accessibility for people with disabilities, in particular with respect to the parking lot and the fron t door. In July 2003, plaintiff's doctor wrote defendant, requesting accommodations to plaintiff's work schedule that would allow her to continue working: I am sending you this letter regarding a patient of mine, Wendy Sturz. As you are probably aware, she has had a significantly rocky course with severe joint disease ov er the last several years. Symptoms are getting worse for her and we are trying to find some solution that maximizes her functioning and productivity while we attempt to find different medical therapies. At this time, her pain level is such that I feel the

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tim e has come to limit her work to a certain extent. I recommend at this point that she should not work for than three consecutive days without having a day off in betw een and she should limit her total work hours to thirty per week at this time. Being able to limit the amount she is working does give her some relief making the days that she is there more productive and functional. If you have any questions or need any addition[al] information or would like m e to fill this out on an FMLB form, I would be happy to do so. Please let me know if you need this information. Thank you very much for considering this. After plaintiff spoke with Tom Petta, her supervisor, Petta approved a reduction in h ou rs and plaintiff began taking Wednesdays off. Although she was supposed to be working no more than 30 hours a week, she was unable to keep that schedule because defendant did no t reduce her caseload. When plaintiff complained about this issue to Petta, his response w a s, "We are all busy." However, he told her that she could not "report" more than 30 hours a week. In September 2003, plaintiff submitted a written request for accommodations, including maintenance of the parking lot, installation of an electric door, permission to work at home during winter months when the weather was bad, a reduction in the number of ho m e visits and a reduction in her caseload. Plaintiff needed these accommodations to

reduce stress and strain on her joints and reduce the need to be mobile. T he parking lot had a steep angle, making it especially difficult for plaintiff to walk on it when snow or ice was present. The village was responsible for plowing the parking lot, b ut it failed to plow or sand the lot well. Plaintiff fell several times because the parking lot

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w as not properly cleared. Plaintiff requested an electronic door opener because she found the exterior door for the office building heavy and cumbersome to open. It became even more difficult after O ctober 2003, when plaintiff followed her doctor's recommendation and purchased an electric scooter to get around at work. In order to get through the door in her scooter, plaintiff had to "reach across, open the latch back up enough to get the scooter through, push the door, and then try to get through while the door was still open." Plaintiff opened the door several times during the day to conduct business for defendant and to take breaks. O pen ing the heavy door exacerbated her medical conditions, particularly with respect to her s h o u ld e r s . C on ducting home visits was problematic as well. Stairs and unkempt lawns made it difficult for plaintiff to maintain her balance. In the winter many clients' homes had walks that were not shoveled. In October 2003 Petta and Larry Liegel (Petta's supervisor) spoke with plaintiff about her requests. Petta and Liegel said that an electric door and a case load reduction were reason able requests and that they would speak to the village about the parking lot "issue." W ith respect to home visits, plaintiff requested a waiver for visits that posed a risk to her safety. In particular, plaintiff discussed home visits that required her to climb stairs. U nd er defendant's policies, "[v]isits to an offender's residence can be waived." Such

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"[w]aivers should be selective . . . based on assessment of risk." One reason for waiver may b e "accessibility of residence." Liegel and Petta rejected plaintiff's request to waive any h om e visits, telling her that her "physical problems" were not a valid reason for a waiver. They also rejected plaintiff's request to work from home during inclement weather. In a followup letter to the Office of Diversity dated November 12, 2003, Liegel reaffirm ed the views stated during the meeting, adding that it was reasonable to assign plaintiff more "office-bound" tasks such as presentence investigations and that it was un reason able to ask the village to alter the parking lot but that Liegel would "ensure proper m ainten an ce" of the parking lot during "routine supervisory visits." He outlined the process for obtaining an electric door, stating that the department would pay for the door and Petta w ou ld obtain bids for it. W ith respect to plaintiff's request to reduce home visits, Liegel wrote the following: C o m m unity safety will likely be compromised if home visits are reduced or elim in ated. Home visits are based on potential offender risk. The Supervisor will certain ly examine all feasible alternatives, including waivers, but home visits will not be eliminated. This workload will certainly impact her coworkers, it cannot be avo ide d . That's why we have a workload adjustment policy (AD-03-10). That is en tirely a supervisory decision, not a personnel decision. S upervisor Petta will examine Agent Sturz' caseload and determine which offender cases would pose a health and safety risk to her, based on medical lim itatio ns, should she be required to conduct home visits. Those specific cases will be transferred to other agents in the Ellsworth office, because home visits are required to maintain public safety. The receiving agent will assume complete supervision of these cases. The operation of the office will be able to handle this change through the

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u se of overtime, and if Region 5 can fill a half-time agent position recently created for E l ls w o r t h .

With respect to plaintiff's request for a reduction in her caseload, Liegel wrote: It is a reasonable request to reduce her workload to a percentage equal to her reduced h ou rs of work. Other employees will be assigned the necessary workload, pursuant to AD-03-10. If the supervisor assigns more office-bound tasks such as PSIs, that w ou ld be reasonable.

C . Implementation T he Department of Administration approved the request for an electric door in N o vem b er 2003. However, defendant did not install an electric door until early 2005. L iegel acknowledges that "it certainly took a long time" to install the door, but he cannot exp lain the reason for the delay. Petta's only explanation is the plaintiff's request was "not high on his list." P etta did not examine plaintiff's case load to determine which cases should be transferred to other agents because they posed a health and safety risk to plaintiff. Liegel an d Petta failed to give plaintiff additional presentence investigations, despite Liegel's con clusion that this was a reasonable way to reduce her home visits. It was Petta's obligation to implement the case load reduction approved by Liegel. Although he knew that plaintiff had a full time caseload, he took no actions to reduce it. G enerally, plaintiff needed to work 36-38 hours a week to maintain her caseload.

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O n February 26, 2004, the Department of Administration sent a letter to the village regarding maintenance of the parking lot after inclement weather. However, after the letter, w h e n the condition of the parking lot did not improve, defendant did not follow up. In particular, defendant "did not sen[d the village] a cease and desist letter, penaliz[e] the lan dlord , asser[t] a breach of the lease or take on the maintenance itself (by hiring it out) an d charg[e] it back to the Village." Plt.'s PFOF ¶ 245, dkt. #38. B eginn ing in the summer of 2004, plaintiff had weekly conversations with Petta abo ut her accommodation requests. She said that her pain was getting worse, that her health w as declining, that she was frustrated that defendant had not done the things it said it would do and that if things did not change she would have to retire. By December 4, plaintiff was throwing up from the amount of pain she was experiencing. She was not sleeping and had lost 40-50 pounds. After plaintiff took medical leave to have surgery on her knee, she determined that she could not return to work. In a letter dated January 9, 2005, she wrote: [M y primary care physician and I] decided that due to my worsening health, dangero usness of occupation, and lack of action to accommodate my disability, it is in my best interest not to return to work and to file for total and permanent disability. My in ten tio n is to continue to use sick time until it is depleted or until such time as my long term disability insurance begins, whichever occurs first.

OPINION

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A . Reasonable Accommodation The Rehabilitation Act and the Americans with Disabilities Act recognize that true equ ality means more than simply treating everyone the same without regard to their differences. Under these laws, the meaning of discrimination encompasses not just disparate treatm ent, but the failure to provide qualified disabled persons with "reasonable accom m od ation s" that allow them to participate equally in the workforce with nondisabled perso ns. 42 U.S.C. § 12112(b)(5); 29 U.S.C. § 794(d). Plaintiff brings her claim under the Rehabilitation Act only, presumably because sovereign immunity protects state agencies from suits under the ADA but not the R e hab ilitatio n Act. Compare Board of Trustees of University of Alabama v. Garrett, 531 U .S. 356 (2001) (ADA does not abrogate state sovereign immunity), with Miller v. Texas T ech University Health Sciences Center, 421 F.3d 342, 348 (5th Cir. 2005) (state agencies w aive sovereign immunity from claims under Rehabilitation Act by accepting federal funds). H ow ever, there is little practical difference between the two types of claims because the R ehabilitation Act borrows its standards for liability from the ADA. Burks v. Wisconsin D ept. of Transportation, 464 F.3d 744, 756 n.12 (7th Cir. 2006). Fo r the purpose of summary judgment, defendant does not deny that plaintiff is d isab led within the meaning of the Rehabilitation Act, that she was qualified for her job or that defendant was aware of her disability. King v. City of Madison, 550 F.3d 598, 600 (7th

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Cir. 1998) (elements of claim under Rehabilitation Act are: (1) plaintiff is disabled; (2) she is otherwise qualified for the job; and (3) defendant is aware of disability and (4) defendant failed to provide reasonable accommodation to plaintiff). The primary question in this case is whether defendant violated plaintiff's rights under the Rehabilitation Act by failing to pro vide her with "reasonable accommodations." Under this circuit's precedent, the term "reasonable" has two components in this context: "efficacious" and "proportional to costs." Oconomowoc Residential Programs v. C ity of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002) (citing Vande Zande v. State of W isconsin Dept. of Administration, 44 F.3d 538, 543 (7th Cir. 1995)). In explaining why it was reasonable not to provide plaintiff's requested accommodations, defendant's mantra is that plaintiff is not entitled to pick her own accommodations. Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000). This is true, but unhelpful. Neither the em ployee nor the employer may unilaterally determine what constitutes a reasonable accom m od ation under the act. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th C ir. 1998). Rather, an employer must engage in an "interactive process" with the employee to determine what an appropriate accommodation would be. Corder v. Lucent Technologies Inc., 162 F.3d 924, 928 (7th Cir. 1998); Beck v. University of Wisconsin Board of Regents, 7 5 F.3d 1130, 1134 (7th Cir. 1996); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 5 6 0 , 563 (7th Cir.1996). The employer has a "duty to consult with the employee to

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determ ine the precise job-related limitations imposed by the disability and how those lim itation s could be overcome with a reasonable accommodation." Lenker v. Methodist H o sp ital, 210 F.3d 792, 797 (7th Cir. 2000). In other woods, just as an employee may not im p o se a "wish list" on the employer, Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011 ,1017 (7th Cir. 1996), defendant was not entitled to deny out of hand requests by plaintiff that were efficacious and proportional to costs simply because it had provided other acco m m o datio n s to her. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) ("[T]he employer is obliged to provide an accommodation that effectively accommodates the disabled employee's limitations."). The reasonableness of each request must be reviewed separately. Oconomowoc Residential Programs, 300 F.3d at 784 ("Whether a requested acco m m o datio n is reasonable or not is a highly fact-specific inquiry and requires balancing the needs of the parties.") N o rm ally, an employer challenges an accommodation on the ground that it is too expensive to implement or that providing it would eliminate an essential function of the job. E .g., Ross v. Indiana State Teacher's Association Insurance Trust, 159 F.3d 1001, 1015-16 (7th Cir.1998) (request of teacher's association director to have all teachers' meetings in his office not reasonable accommodation when essential function of job was to meet with teachers outside his office). Defendant does not develop an argument for either issue, so those issues are waived for the purpose of its motion for summary judgment.

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In its reply brief, defendant raises an argument that it is "almost impossible" for plaintiff to prove that her accommodation requests were reasonable because "she makes the allegation in her complaint, and the admission in her brief, that she was a qualified in divid ual with a disability because she was able to perform the essential functions of her job w ith or without reasonable accommodation." Dft.'s Br., dkt. #42, at 4 (emphasis in original). In other words, unless it was impossible for plaintiff to do her job without the accom m od ation s, she was not entitled to them under the Rehabilitation Act. D efendan t's position is problematic for a number of reasons. First, because plaintiff raised this argument for the first time in its reply brief, it is waived. Nelson v. LaCrosse Co unty Dist. Attorney, 301 F.3d 820, 836 (7th Cir. 2002). Second, plaintiff's position at sum m ary judgment is that she could not perform her job without the accommodations; this w as a reason she gave for leaving defendant's employment. P erh ap s most important, defendant's argument suggests a disturbing standard for determ inin g whether an accommodation is reasonable. It may be that plaintiff could open th e front door with great difficulty or make her way through the parking lot without falling each time, but should she have to? A paraplegic might be able to get out of her wheel chair an d pull herself up a flight of stairs as well, but that does not mean an employer may refuse to install a ramp or an elevator on that ground. Reasonable accommodations include more than just things that are medically

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necessary. They include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U.S.C.A. § 12111(9)(A) (emphasis added). M o re generally, they include "[m]odifications or adjustments that enable a covered entity's em ployee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o)(iii) (em p hasis added). See also Vande Zande, 44 F.3d at 545 (concluding that accommodation w a s not required when its absence did not "interfer[e] with [plaintiff's] ability to work or w ith her physical comfort"; accommodations are sufficient when they make work experience of disabled person "equivalent" to that of nondisabled persons). In any event, plaintiff has adduced evidence that she needed the accommodations to reduce stress on her joints and that not having the accommodations exacerbated her conditions. (Defendant challenges plaintiff's expert testimony on this issue, but again, that issu e is waived because defendant failed to raise it until its reply brief, and even then, d efen dan t failed to develop the argument.) That is more than sufficient; plaintiff did not have to show it was physically impossible to do her job before defendant was obligated to p ro vid e her with an accommodation. D e fen dan t cites Rauen v. U.S. Tobacco Manufacturing Ltd. Partnership, 319 F.3d 891 (7th Cir. 2003), but it does not support defendant's "impossibility" standard. In that case, the plaintiff made a request to work from home because of the number of times she

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n e ed ed to use the bathroom throughout the day. This type of inconvenience cannot be com pared to plaintiff's situation; the plaintiff in Rauen adduced no evidence that her con dition was made worse by the lack of accommodations. W ith respect to most of the accommodations plaintiff requested, defendant's reasons fo r failing to implement them are not persuasive. Defendant's position is particularly difficult because it approved many of the accommodations that are at issue in this lawsuit.

1. Reduced schedule and workload With respect to plaintiff's request for a reduced schedule, defendant says that it acco m m odated plaintiff's request by prohibiting her from reporting more than 30 hours a w eek. However, this was the worst of both worlds for plaintiff because it is undisputed that defendant continued to give her the same workload, despite assurances that it would be reduced. Thus, the reduction in hours was illusory. In its reply brief, defendant says that "Petta was having difficulty getting enough staff to cover case loads," Dft.'s Br., dkt. 42, at 16 , suggesting that defendant believes the accommodation was unreasonable. Defendant is free to raise this issue at trial, but I cannot grant summary judgment to defendant on this gro un d because he did not raise the issue in his opening brief, propose facts on this question or even develop the point in his reply brief. Although it is ultimately plaintiff's burden to pro ve that an accommodation is reasonable, Vande Zande, 44 F.3d at 543, defendant must

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properly raise that issue in its motion for summary judgment before that burden is triggered. E dw a r ds v. Honeywell, 960 F.2d 673, 674 (7th Cir. 1992) ("When a party moves for sum m ary judgment on ground A, his opponent is not required to respond to ground B--a grou nd the movant might have presented but did not.").

2. Electric door D e fen dan t offers no reason why it failed to put in an electric door for more than a year. Defendant cites Jay, 233 F.3d at 1017, for the proposition that even a 20-month delay m ay be reasonable, but that is only when the employer acts in "good faith." In this case, d efen dan t says in its brief that "outside forces" contributed to the delay, Dft.'s Br., dkt. #17, at 7, but it fails to explain this or cite any evidence in support of it. Again, defendant is free to raise this issue at trial if it has evidence that it acted reasonably and in good faith. D efendant's other argument regarding the electric door is less clear. It says that the electric door was "not of great consequence" to plaintiff because she opened the door herself w h en she went on breaks and she decided to retire even after they replaced the door in 2005. D efendan t does not explain why these observations are relevant. To the extent it means to say that plaintiff was not entitled to the accommodation because she was capable of opening it herself, this is a variation on the "impossibility" standard that I have rejected. It is un disputed that it was difficult for plaintiff to open the door and that doing so exacerbated

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her condition. That is sufficient. Defendant cites no authority for the proposition that a disabled person "waives" her right to an accommodation if she tries her best to make do w ithout one. Further, it is misleading to say that plaintiff retired despite defendant's installation of the electric door. Plaintiff already had already stopped working by that time. Although technically she was still employed by defendant, this was only because she was using up her sick time. In any event, the door was only one of several accommodations that plaintiff said she needed but did not receive; defendant is confusing "necessary" with "sufficient." I can n o t say as a matter of law that an electric door was an unreasonable accommodation sim ply because plaintiff determined that she needed other accommodations as well.

3. Parking lot maintenance and working from home during winter I will consider these two requests together because they are related: plaintiff says that her request to work from home during the winter was the result of the difficulty she had in the parking lot after inclement weather. In denying plaintiff's request to work from home, d efen dan t told plaintiff that it would be a violation of policy because of liability issues and o th er concerns. E.g., Rauen, 319 F.3d at 896 ("a home office is rarely a reasonable

accom m odation"). Perhaps plaintiff could have shown that an exception to the rule was w arranted in her case, but she has not developed any argument that defendant's policy is an

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un reason able one. Accordingly, plaintiff has not met her burden on summary judgment to show that a genuine issue of material fact exists. H ow ever, if defendant could not allow plaintiff to work from home, it became that m uch more important to insure that the parking lot was maintained in a manner that kept th e office "readily accessible" to her. 42 U.S.C.A. § 12111(9)(A). Defendant does not d evelo p any arguments about the parking lot in its opening brief, so this issue is waived for the purpose of summary judgment. In its reply brief, defendant suggests that it did all it cou ld by sending the village a letter. That remains to be seen. Although it may have been the village's responsibility to clear the parking lot, it was defendant's obligation to keep the o ffice accessible for plaintiff. Plaintiff identifies a number of other actions that defendant co uld have taken and defendant does not argue that any of them were unreasonable or unduly burdensome. This issue must proceed to trial.

4 . Home visits and presentence investigations In the November 13 letter, Liegel concluded that giving plaintiff more presentence investigation s was a reasonable way for plaintiff to reduce her home visits and he directed Petta to determine which home visits posed a risk to plaintiff's health and safety as a result of accessibility issues. Defendant concedes that Petta never did this and defendant makes little effort to justify this failure. It cites Mobley, 531 F.3d at 546, for the proposition that

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"an employer's denial of an employee's request for the assignment of more report-writing [is] n o t employment discrimination." Dft.'s Br., dkt. #42, at 17, but that is a misstatement of th e case. The primary issue in Mobley was whether the plaintiff was entitled to work from hom e. The court did not discuss "report-writing" at all. Defendant may be referring to the plaintiff's request to work on a particular type of project, but the court noted only that the plaintiff was unable to perform her job even after that accommodation was provided. Id. at 54 7. Defendant says that a reduction in home visits was denied for "safety reasons," but th at is a misstatement of Liegel's letter. Although Liegel stated that home visits could not be eliminated, he said as well that cases requiring home visits "will be transferred to other agents" when the visits posed a health and safety risk to plaintiff. Again, defendant is free to argue at trial that it was not feasible to transfer plaintiff's home visits to other agents, but it has not raised this issue at summary judgment.

B . Constructive Discharge The parties acknowledge that the Court of Appeals for the Seventh Circuit has not considered the question whether a claim for constructive discharge exists under the R ehabilitation Act, but it has assumed on a number of occasions that such a claim exists un der the ADA. E.g., EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 440 (7th Cir. 2000);

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V ollm ert v. Wisconsin Department of Transportation, 197 F.3d 293, 297 (7th Cir.1999); Silk v. Chicago, 194 F.3d 788, 803-04 (7th Cir.1999). I see no reason to doubt that assum ption or to decline to apply it to claims under the Rehabilitation Act. In the Title VII con text, the Supreme Court has determined that authorization for constructive discharge claim s is implicit in the prohibition on discriminatory changes in "the terms and conditions of employment." Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004). Because the ADA and the Rehabilitation Act include a parallel provision, 42 U.S.C. § 12112(a), the sam e rule should apply. In determining whether an employee was constructively discharged, the question is w h eth er "she was forced to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable." EEOC v. University of Chicago

H ospitals, 276 F.3d 326, 331 (7th Cir. 2002). Most cases applying this test involve "severe o r pervasive" harassment, e.g., Fischer v. Avande, Inc., 519 F.3d 393 (7th Cir. 2008), leading defendan t to argue that plaintiff cannot meet the standard because she was not subjected to such harassment. Although harassment may be the most common reason that employees are constructively discharged, the test is not so limited. Plaintiff may prevail so long as she can show that her conditions of employment were objectively intolerable for a reason pro hibited by the statute. In a footnote, defendant argues that a failure to provide accommodations could

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con stitute a constructive discharge only when it becomes "impossible" for the employee to do her job. Dfts.' Br., dkt. #17, at 16 n.6. Again, that is not the standard. In none of the hostile work environment cases has the court required a plaintiff to show that the harassm ent physically prevented her from doing her job, only that a reasonable person would feel compelled to resign under the circumstances. A reasonable jury could find that plaintiff's conditions were objectively intolerable as a result of defendant's failure to accommodate her. Again, plaintiff has adduced evidence th at her conditions at work not only failed to accommodate her conditions, but actually exacerbated them to the extent that she was in so much pain that she was throwing up at the end of the day. An employee should not have choose between her job and her health. It m ay be that, by December 2005, no accommodation would have been sufficient as a result of plaintiff's deteriorating condition, but that is not a question that defendant raised in its m otio n for summary judgment.

OR DER IT IS ORDERED that the motion for summary judgment filed by defendant W iscon sin Department of Corrections, dkt. #16, is GRANTED with respect to plaintiff W endy Sturz's claim that defendant violated the Rehabilitation Act by refusing to allow her

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to work from home. The motion is DENIED in all other respects.

E n tered this 20 t h day of July, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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