Hafermann, Steven v. Wisconsin Department Of Corrections et al
Filing
36
OPINION AND ORDER denying 19 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 1/15/16. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STEVEN HAFERMANN,
OPINION AND ORDER
Plaintiff,
14-cv-615-bbc
v.
WISCONSIN DEPARTMENT OF CORRECTIONS
and ROBERT HUMPHREYS,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - From 1980 until 2011, plaintiff Steven Hafermann worked as a correctional officer
at Kettle Moraine Correctional Institution. In fall 2010, defendant Robert Humphreys (the
warden of the prison), moved plaintiff to a position that required him to work third shift.
Plaintiff says that he was unable to maintain that type of schedule because of his sleep apnea
and heart problems and that defendants violated his rights under the Rehabilitation Act and
the equal protection clause by continuing to require him to work third shift even after he
submitted a letter from his health care providers and even after a first shift position for
which he was qualified opened up.
Defendants have filed a motion for summary judgment on all of plaintiff’s claims.
Dkt. #19. They argue that they cannot be held liable for failing to accommodate plaintiff
under the Rehabilitation Act because he was not disabled within the meaning of the Act and
because he failed to provide adequate medical documentation showing that any disability
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he had rendered him unable to work third shift. With respect to plaintiff’s claim under the
equal protection clause, defendants say that plaintiff did not adequately plead a claim of
intentional discrimination. Because I conclude that defendants have not shown that they
are entitled to judgment as a matter of law on any of the issues raised in their summary
judgment materials, I am denying their motion in full.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.
UNDISPUTED FACTS
In 1980, plaintiff Steven Hafermann began working at the Kettle Moraine
Correctional Institution as a correctional officer. From 1994 until 2011, plaintiff was a
captain. Defendant Robert Humphreys was the warden of the prison during the events
relevant to this case.
In January 2010, plaintiff received a diagnosis of “severe obstructive sleep apnea with
severe hypoxemia.” Plaintiff’s sleep apnea was severe because it caused plaintiff to stop
breathing during sleep more than 30 times an hour, leading him to gasp for breath and
preventing him from sustaining deep sleep. Plaintiff’s hypoxemia was severe because the
sleep apnea sometimes lowered his blood oxygen levels to under 80 percent. Low oxygen
levels are a concern because they can lead to a heart attack, stroke, hypertension and atrial
fibrillation. This was a special concern for plaintiff because he suffers from coronary disease
and has a history of mitral valve repair and hypertension. At the time, plaintiff did not
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inform anyone at work of his conditions.
In September 2010, plaintiff was the captain for “first shift training and
investigations.”
Defendant Humphreys changed plaintiff’s position to “first shift
vacation/holiday/relief,” which, despite the position’s title, required plaintiff to work all three
shifts. At the same time, Brian Foster, the deputy warden, informed plaintiff that he was
being assigned to third shifts exclusively until a replacement could be found for the third
shift supervisor position. (The parties dispute the reason for these changes and the extent
to which the changes were temporary, but I need not resolve the disputes because plaintiff
is not challenging these decisions as discriminatory and he does not argue that the reasons
for the decision are relevant to his claims.) First shift was from 6:30 a.m. to 2:30 p.m.;
second shift was from 2:30 p.m. to 10:30 p.m.; and third shift was from 10:30 p.m. to 6:30
a.m.
Plaintiff told Foster that he could not work third shift because he suffered from sleep
apnea. In response, Foster asked plaintiff to provide medical documentation. Plaintiff
agreed to do so. In the meantime, plaintiff was required to work third shift.
On September 17, 2010, plaintiff “submitted” a letter from his nurse practioner, but
the letter was “received by [the prison] on September 20 or September 21, 2010.” Dfts.’
PFOF ¶ 73, dkt. #34. The letter stated:
It has come to my attention that Mr. Hafermann’s place of employment will
be changing his work schedule to now include night shift work. We know that
night shift work is known to be a risk factor for our patients, particularly those
who have a known history of cardiac health conditions. Mr. Hafermann has
been treating at the Heart and Lung Center and has been our patient in
pulmonology for his significant problem of obstructive sleep apnea and
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hypoxia during sleep. He has achieved excellent treatment and is doing an
excellent job with the use of his CPAP device. We are very pleased with his
progress as it is protective of his cardiac condition. Our concern is that he
would not be able to sleep during the day and this could jeopardize his cardiac
status. Our cardiology department has also expressed concern as we know that
working a night shift is detrimental to our patients health in general. We do
ask that he be scheduled on shifts that do not include the night shift.
In response to this letter, Humphreys asked plaintiff for “more information.” Dfts.’
PFOF ¶ 78, dkt. #34. (Defendants do not say whether they told plaintiff what they believed
was insufficient about the nurse practitioner’s letter or what additional information they
needed.) Plaintiff was assigned to work first and second shift until a scheduled vacation
beginning on September 24, 2010.
On October 1, 2010, defendants sent plaintiff a questionnaire for plaintiff’s health
care providers to complete. The questionnaire included the following questions:
1. Does Mr. Hafermann have a physical impairment that substantially limits a major
life activity?
2. Is the impairment expected to resolve in time or is it predicted to be long term
and/or ongoing?
3. What are the recommended physical activity limitations?
4. Based on review of the position description and the description of the work
environment [provided with the questionnaire], can Mr. Hafermann perform the essential
functions of a Supervising Officer 2—Captain with or without a reasonable accommodation?
When plaintiff returned to work on October 19, 2010, he had not yet returned the
questionnaire to defendants. As a result, plaintiff was assigned to work third shift again.
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Plaintiff experienced difficulties working on third shift; he felt very tired and ill and had a
hard time concentrating.
On November 1, 2010, plaintiff returned the medical questionnaire to human
resources. In response to the first question, plaintiff’s health care providers wrote that
plaintiff’s sleep apnea made him “unable to sleep during the day” but also that he “needs
time to adapt to sleeping during the day.” In response to the second question regarding the
duration of plaintiff’s impairment, the providers answered, “not known—possibly may adapt
to sleeping during the day.” In response to the question whether plaintiff could perform his
job with or without a reasonable accommodation, the providers marked both “yes” and “no.”
Next to “yes,” the providers wrote that “he may be able to if he has some time.” Next to
“no,” they wrote “needs to work day shift.” In describing the accommodation that plaintiff
needed, the providers wrote, “to adjust to the new shift change.”
After defendant Humphreys reviewed the answers to the questionnaire, he told
plaintiff that more information was needed. (The parties dispute exactly what Humphreys
told plaintiff.
According to Humphreys, he said that the “questionnaire contained
conflicting information with regard to Hafermann’s ability to work third shift.” Dfts.’ PFOF
¶ 94, dkt. #34. According to plaintiff, Humphreys said only that the answers were not “clear
enough.” Plt.’s Resp. to Dfts.’ PFOF ¶ 94, dkt. #34. Defendants do not say whether they
told plaintiff what additional information they needed.)
Also on November 1, 2010, plaintiff spoke with Humphreys about being assigned to
a newly vacant first shift line captain position. Under past practice, if there was an opening
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on first shift, the most senior captain was given the opportunity to work that shift if he was
capable of doing so. Plaintiff was the most senior captain and he was capable of supervising
the first shift. Further, there were several other security supervisors, including four other
captains, who could have been assigned to work third shift until the third shift position was
filled permanently. However, Humphreys denied plaintiff’s request, stating, “we need you
on nights.” Plaintiff told Humphreys that he was falling asleep during third shift, that
working that shift was jeopardizing his health and that he was concerned about his ability
to perform his job, but this did not change Humphreys’ mind. Instead, Humphreys told
plaintiff that he could move off third shift when a third shift captain was hired, which
Humphreys said would be soon.
Lieutenant Grant Berg received the first shift line captain position instead of plaintiff.
Berg was hired in 1999.
To defendants’ knowledge, Berg has never requested an
accommodation for a disability.
Plaintiff took medical leave from November 1, 2010, to January 2, 2011, so that he
could avoid working third shift. On December 2, 2010, plaintiff submitted a formal notice
of retirement. He did not return to work after he was finished taking medical leave.
OPINION
A. Failure to Accommodate
Plaintiff’s first claim is that defendant Wisconsin Department of Corrections violated
his rights under the Rehabilitation Act by failing to provide a reasonable accommodation for
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his disabilities related to sleep apnea and a cardiac condition. In particular, plaintiff says
that the department should have accommodated his disability by granting his request not
to work third shift.
Like the Americans with Disabilities Act, the Rehabilitation Act prohibits
discrimination by covered employers against employees with a disability. 29 U.S.C. §
794(a); Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008).
The prohibition against
discrimination includes a duty to provide reasonable accommodations. E.g., Ozlowski v.
Henderson, 237 F.3d 837, 839 (7th Cir. 2001). Although the language of the Rehabilitation
Act does not include a duty to accommodate, the Supreme Court has read such a
requirement into the Act. Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 672 (7th Cir.
2012) (citing Alexander v. Choate, 469 U.S. 287, 300–01 (1985)). More generally, under
29 U.S.C. § 794(d), the standards for determining a violation of the Americans with
Disabilities Act are incorporated into the Rehabilitation Act in the employment context, so
case law applying the Americans with Disabilities Act applies to the Rehabilitation Act as
well. Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013).
Defendants say that the department is entitled to summary judgment on plaintiff’s
failure to accommodate claim for two reasons. First, defendants say that plaintiff is not an
“individual with a disability” within the meaning of the Act. Second, defendants say that,
even if plaintiff has a disability, the department was not required to accommodate plaintiff
because plaintiff did not provide adequate medical documentation showing that he needed
the accommodation that he requested. I will consider each of these arguments in turn.
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(Defendants make numerous new arguments in their reply brief, some of which I have noted
below. I decline to consider any arguments that defendants failed to include in their opening
brief. Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is
entitled to find that an argument raised for the first time in a reply brief is forfeited.”).)
1. Individual with a disability
The definition of disability under the Act includes “a physical or mental impairment
that substantially limits one or more major life activities of such individual.” 42 U.S.C. §
12102(1)(A). (The Act includes two other definitions as well, 42 U.S.C. 12102(1)(B)-(C),
but the parties do not discuss those, so I am limiting my analysis to § 12102(1)(A).) The
statute lists various examples of major life activities, which include sleeping, breathing,
concentrating and thinking. 42 U.S.C. § 12102(2)(A). In addition, the statute defines
“major life activity” as including “the operation of a major bodily function.” 42 U.S.C. §
12102(2)(B). The regulations interpreting the statute list “cardiovascular” as a “major
bodily function.” 29 C.F.R. § 1630.2(i)(1)(ii).
In this case, it is undisputed that plaintiff suffered from coronary disease and that
plaintiff’s sleep apnea can disrupt both his sleeping and breathing as many as 30 times an
hour. Defendants do not develop an argument that these undisputed facts are insufficient
to allow a reasonable jury to find that plaintiff has an impairment that substantially limits
a major life activity such as sleeping or breathing or a major bodily function such as
plaintiff’s cardiovascular system. E.g., Feldman v. Olin Corp., 692 F.3d 748, 752 (7th Cir.
8
2012) (plaintiff adduced sufficient evidence of substantial limitation on sleeping with sleep
study showing that plaintiff’s “sleep efficiency (that is, the amount of time he actually slept)
was rated as very poor at 48%”); Peklun v. Tierra Del Mar Condo. Association, Inc., No.
15-CIV-80801, 2015 WL 8029840, at *9 (S.D. Fla. Dec. 7, 2015) (finding that chronic
sleep apnea substantially limited plaintiff’s major life activity of sleeping); Cole v.
Weatherford International, LLC, No. 14-CV-1115-WJM-KMT, 2015 WL 3896835, at *1
and * 4 (D. Colo. June 23, 2015) (employee who suffered from “a coronary blockage and .
. . underwent a stent placement procedure” had substantial limitation on major bodily
function).
Although defendants cite cases in which courts found that an individual’s sleep apnea
or other sleeping impairment was not sufficiently severe to qualify as a disability, defendants
do not conduct any analysis of those cases or explain how they are instructive in this case.
Tate v. Ancell, 551 F. App'x 877, 885 (7th Cir. 2014) (declining to consider whether
plaintiff’s sleep apnea was disability because plaintiff “ha[d] given [the court] no reason to
question this aspect of the district court's ruling or to revisit the cases that the district court
relied on”); Squibb v. Memorial Medical Center, 497 F.3d 775, 784 (7th Cir. 2007)
(plaintiff’s “generalized assertions” that she was “unable to sleep for substantial periods of
time, unsupported by any additional evidence, medical or otherwise” not sufficient to show
disability); Scheerer v. Potter, 443 F.3d 916, 920 (7th Cir. 2006) (“Scheerer's evidence on
sleeping difficulties establishes, at most, intermittent disrupted sleep, but it cannot establish
the type of prolonged, severe and long-term sleep difficulties that can amount to a
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substantial limitation in the major life activity of sleeping.”). Because plaintiff’s evidence
regarding limitations on his sleeping is significantly stronger than the evidence in the cases
defendants cite and at least as strong as the evidence in Feldman, I need not consider
plaintiff’s argument that Scheerer and Squibb are no longer good law in light of the 2008
amendments to the Americans with Disabilities Act that broadened the definition of
“disability.” E.g., 42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission
is a disability if it would substantially limit a major life activity when active.”); id. at §
12102(4)(E) (“The determination of whether an impairment substantially limits a major life
activity shall be made without regard to the ameliorative effects of mitigating measures.”);
29 C.F.R. § 1630.2(j)(ii) (“An impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in order to be considered
substantially limiting.”).
Further, defendants ignore the question whether plaintiff’s
coronary disease substantially limits a major bodily function, so they have forfeited that issue
for the purpose of summary judgment.
Instead of discussing plaintiff’s evidence of impairment, defendants argue that
plaintiff’s own conduct at work shows that his “sleep apnea did not interfere with his ability
to work late into the night or early in the morning.” Dfts.’ Br., dkt. #20, at 17. In
particular, defendants say that, in August 2010, plaintiff applied to be the prison’s security
director, even though that position could require third shift work. (Plaintiff was not chosen
for the security director position.) In addition, defendants say that plaintiff volunteered to
work back-to-back first and second shifts on several occasions in August and September
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2010 before he requested an accommodation.
These arguments are not persuasive for two reasons. First, defendants are conflating
different statutory requirements. To prove disability, plaintiff must show a substantial
limitation on a major life activity; he does not have to show that he is unable to work.
Brumfield, 735 F.3d at 633 (rejecting view that “reasonable accommodations are available
only to individuals whose impairments substantially limit the major life activity of
working”). “Working” is only one of many major life activities. 42 U.S.C. § 12102(2)(A)
(“major life activities include, but are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working”). Again,
defendants fail to develop an argument that plaintiff’s sleeping and cardiovascular functions
are not substantially limited. Although plaintiff cannot prevail on an accommodation claim
unless he can show that he needed an accommodation to perform his job, Brumfield, 735
F.3d at 632-33, that is an issue separate from the question whether plaintiff has a disability
under the Act.
Second, even if plaintiff’s ability to work on third shift were dispositive of the
question whether plaintiff is disabled under the Act, at most, defendants’ allegations provide
grounds for treating as disputed plaintiff’s testimony and his medical records. Feldman, 692
F.3d at 754 (evidence that plaintiff engaged in activities inconsistent with his allegations of
disability not sufficient to show as matter of law that plaintiff was not substantially limited
in major life activity). Further, defendants’ allegations do not relate to instances in which
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defendant actually worked on third shift voluntarily. Particularly because plaintiff alleges
that he suffered when he did work third shifts, defendants’ allegations cannot show as a
matter of law that plaintiff was capable of working third shift on a regular basis.
In their reply brief, defendants seem to abandon their arguments regarding plaintiff’s
allegedly inconsistent conduct and they raise new arguments, though they do not develop
any of them. I conclude that defendants forfeited these arguments, both because the
arguments are not developed and because defendants failed to raise the arguments in the
opening brief. Williams v. Dieball, 724 F.3d 957, 961-63 (7th Cir. 2013); Narducci, 572
F.3d at 324.
2. Need for accommodation
Plaintiff’s requested accommodation was a schedule that did not require him to work
third shift. Defendants do not argue that the accommodation was unreasonable or that it
would have been difficult for them to provide such an accommodation. Instead, they argue
that plaintiff failed to show that he needed the accommodation in order to perform his job.
Brumfield, 735 F.3d at 633 (“[T]o be entitled to an accommodation, a disabled employee
must have a physical or mental limitation that prevents her from performing an essential
function of the particular job at issue and there must be some causal connection between the
major life activity that is limited and the accommodation sought.”).
Plaintiff concedes that the department was permitted under the Act to require him
to provide medical documentation showing that he needed an accommodation for his
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disability. Ekstrand v. School District of Somerset, 583 F.3d 972, 976 (7th Cir. 2009)
(“[O]ur cases have 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 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.”). The dispute is whether plaintiff met that
obligation, either when he submitted his first letter from his health care providers in
September 2010 or when he provided answers to defendants’ follow up questionnaire in
November 2010. Defendants say that neither document was sufficient, so when plaintiff
refused to provide more information, he was responsible for the breakdown in the
“interactive process” that the Act requires once the employee requests an accommodation.
EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005) (“The ADA requires
that employer and employee engage in an interactive process to determine a reasonable
accommodation. If a disabled employee shows that her disability was not reasonably
accommodated, the employer will be liable only if it bears responsibility for the breakdown
of the interactive process.”) (internal quotations and citations omitted).
Defendants argue that the September 2010 letter was inadequate because the “letter
did not state that Hafermann could not work third shift, did not explain why Hafermann
could not sleep during the day, why working a night-shift would be detrimental to his health
or whether any of this was related to a heart condition. The letter did not tie any adverse
symptoms to plaintiff's job duties.” Dfts.’ Br., dkt. #20, at 22. These objections fall into
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two categories: (a) the lack of a conclusion that plaintiff needed the requested
accommodation; and (b) the lack of an explanation as to why plaintiff needed the requested
accommodation for his disabilities.
The first type of objection is contradicted by the letter, which is an unambiguous
request by plaintiff’s health care providers that plaintiff “be scheduled on shifts that do not
include the night shift” because of “his significant problem of obstructive sleep apnea and
hypoxia during sleep” and “his cardiac status.” Thus, defendants had no reason to question
after reviewing the letter that plaintiff’s health care providers believed that plaintiff should
not be working the night shift because of his disabilities.
In response to defendants’ objection that the September 2010 letter did not explain
clearly enough why plaintiff’s disabilities prevented him from working third shift, plaintiff
says that the letter provided a sufficient basis for the requested accommodation by stating
that third shift work is a "risk factor" for patients such as plaintiff with sleep apnea and
cardiac conditions and that working third shift "could jeopardize his cardiac status.”
However, the letter did not explain why plaintiff would be unable to sleep during the day.
Defendant’s objection raises the question of the extent to which an employer is
entitled under the Act to require an employee’s health care providers to provide the grounds
for their opinion that a patient needs an accommodation. The cases cited by the parties do
not address this point directly.
Plaintiff cites Ekstrand, 583 F.3d at 973, in which the plaintiff was a teacher who
suffered from seasonal affective disorder and requested an accommodation of teaching in a
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room with more natural light. The court held that a reasonable jury could find that the
employer violated its duty to provide a reasonable accommodation when it failed to provide
an accommodation after receiving a doctor’s note that “Mrs. Eckstrand's current episode of
depression was most likely directly related to a change in her work location, to a room
lacking any [exterior] windows.” Id. at 976-77. However, the defendant in Ekstrand did not
argue that the note was inadequate, so the court did not consider that issue.
In addition to Ekstrand, plaintiff cites an EEOC publication for the proposition that
"[a]n employer cannot ask for documentation when the individual has already provided the
employer with sufficient information to substantiate that s/he has an ADA disability and
needs the reasonable accommodation requested." Plt.'s Br., dkt. #30, at 18. However, the
cited passage does not provide guidance regarding what level of detail qualifies as "sufficient."
For their part, defendants cite Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 (7th
Cir. 2014), and Bultemeyer v. Fort Wayne Community School, 100 F.3d 1286 (7th
Cir.1996). In Spurling, 739 F.3d at 1059, the court held that the employer was not entitled
to summary judgment on a failure to accommodate claim after it terminated the plaintiff for
falling asleep at work despite a note from her doctor that the plaintiff “had a mental or
physical disability covered under the ADA,” that she “exhibited excessive drowsiness that
affected her job performance” and that “periods of scheduled rest” were the recommended
accommodation. In ruling in favor of the plaintiff, the court faulted the employer for “not
seek[ing] further clarification from either Spurling or her doctor,” id. at 1061, but the court
did not say what type of clarification was needed or permitted.
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In Bultemeyer, 100 F.3d at 1282,1287, the court found in favor of the plaintiff on
a failure to accommodate claim after the employer terminated the plaintiff even after
receiving a note from his psychiatrist stating, "due to [the plaintiff’s] illness [relating to
bipolar disorder and schizophrenia] and his past inability to return to work, it would be in
his best interest to return to a school that might be less stressful.” In Spurling, 739 F.3d at
1062, the court summarized Bultemeyer as standing for the proposition that the “employer
should have sought an explanation from the doctor if it had concerns with the employee's
medical diagnosis.”
Defendants also cite Beck v. Univeristy of Wisconsin Board of Regents, 75 F.3d
1130, 1135 (7th Cir. 1996), for the more general proposition that an employer cannot be
held liable for failing to provide an accommodation so long as the employer is acting in
“good faith” and “mak[ing] reasonable efforts to help the [employee] determine what specific
accommodations are necessary.” However, in Beck, 75 F.3d at 1135-36, the employer
provided many different accommodations for the employee. The question was not whether
the employee had provided enough evidence to require an accommodation, but whether the
employer’s efforts to find an effective accommodation were sufficient.
Spurling and Bultemeyer support a conclusion that an employer may be entitled to
clarification from the employee’s medical providers under some instances, but they do not
provide a standard for determining the amount or type of additional information the
employer may demand from an employee before providing an accommodation, at least
temporarily. Although Beck suggests a “good faith” standard, it is not clear whether Beck
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applies to a demand by the employer to require more medical evidence.
I conclude that I need not resolve the question whether defendants were entitled to
seek clarification because, even if they were, the problem with defendants’ argument is that
Humphreys did not ask for clarification. Although defendants say that Humphreys told
plaintiff that he needed "more information," defendants do not say that Humphreys told
plaintiff what he believed was insufficient about the September 2010 letter or what
additional information was needed. The questionnaire defendants provided plaintiff also
failed to address the issues discussed in defendants' brief. Rather, the questionnaire asked
general questions regarding whether plaintiff is disabled. Thus, neither plaintiff nor his
health care providers had notice of the additional information defendants say they needed.
By failing to provide that notice, a reasonable jury could find that the department caused the
breakdown in the "interactive process" required by Act to determine an appropriate
accommodation for the employee. Cloe v. City of Indianapolis, 712 F.3d 1171, 1178-79
(7th Cir. 2013) ("Th[e] [interactive] process brings the employee and employer together in
cooperation to identify the employee's precise limitations and discuss accommodation which
might enable the employee to continue working. If this process fails to lead to reasonable
accommodation of the disabled employee's limitations, responsibility will lie with the party
that caused the breakdown.") (internal quotations omitted).
"[A]n employer's failure to engage in the interactive process is actionable if it prevents
identification of an appropriate accommodation for a qualified individual. Accordingly, the
employee must show that a reasonable accommodation could be made that would enable her
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to carry out the essential functions of her job." Stern v. St. Anthony's Health Center, 788
F.3d 276, 292-93 (7th Cir. 2015). In this case, defendants do not deny that the department
could have reasonably accommodated plaintiff by allowing him to work first or second shifts.
Further, they do not allege that accommodating plaintiff would have imposed any hardship
on the department. Accordingly, I conclude that defendants are not entitled to summary
judgment on this claim.
Even if I assume that the department was entitled to ask for more information and
that the department provided sufficient notice to plaintiff regarding the additional
information it needed, the department still would not be entitled to summary judgment
because the department refused to accommodate plaintiff even after he returned the
questionnaire. Defendants argue that the answers to the questionnaire were confusing and
contradictory, so the department was entitled to even more information. In particular,
defendants say that the answers suggested that plaintiff might be able to adjust to working
third shift.
Defendants’ argument fails for two reasons. First, according to plaintiff, Humphreys
did not explain what was wrong with the answers to the questionnaire or identify what
additional information was needed. Rather, Humphreys said only that the answers to the
questionnaire were not “clear enough.” Thus, construing the facts in plaintiff’s favor as I am
required to do on a motion for summary judgment, a reasonable jury could find that
defendants request for more information was not made in good faith.
Second, defendants do not deny that the answers to the questionnaire made it clear
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that it was dangerous for plaintiff to work third shift at least until plaintiff could transition
safely to sleeping during the day. It is true that plaintiff’s health care providers did not
explain how plaintiff could transition safely to third shift work, but that is an argument for
giving plaintiff an accommodation until defendants received more information from the
providers, not refusing an accommodation. Under defendants’ view, an employer is entitled
to deny an accommodation that is needed now if there is evidence that an employee might
not need an accommodation later. This makes no sense. Accordingly, this is another reason
for denying defendants’ summary judgment motion on plaintiff’s claim for failure to
accommodate.
B. Disparate Treatment
At some point after plaintiff was reassigned but before November 1, 2010, a first shift
line captain position opened up at the prison. Plaintiff alleges that defendants refused to
give him that position because of his disabilities, in violation of both the Rehabilitation Act
(with respect to the department) and the equal protection clause (with respect to defendant
Humphreys).
Defendants do not deny that disparate treatment on the basis of disability is
prohibited by both the Rehabilitation Act and the equal protection clause. Instead, in their
opening brief, defendants make three arguments in support of dismissal of plaintiff’s
disparate treatment claim: (1) the equal protection clause does not require accommodation
of disabilities; (2) plaintiff did not identify in his complaint any similarly situated,
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nondisabled employees who received more favorable treatment; (3) plaintiff conceded that
Humphreys did not intentionally discriminate against him. In addition, defendants argue
that plaintiff cannot sue Humphreys under the equal protection clause for conduct that also
violates the Rehabilitation Act. I am not persuaded that any of these arguments require
dismissal of plaintiff’s disparate treatment claims. (In their opening brief, defendants did
not discuss plaintiff’s disparate treatment claim under the Rehabilitation Act. However,
because the parties do not identify any differences between the substantive standards
governing the statutory and constitutional claims, I will consider the two claims together.)
Defendants’ first argument is not responsive to plaintiff’s claim. For the purpose of
the disparate treatment claim, plaintiff is not alleging that he was entitled to the new first
shift position as an accommodation of his disability. Rather, he is alleging that defendants
treated him unequally because of his disability by giving the position to someone else even
though plaintiff was more qualified for the position.
Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (equal protection clause prohibits
discrimination “‘because of,' not merely ‘in spite of'” particular characteristic).
Defendants’ second argument shows a misunderstanding of federal pleading rules.
It is well established that “[t]he plaintiff is not required [in a discrimination case] to identify
similarly situated comparators at the pleading stage.” Carlson v. CSX Transp., Inc., 758
F.3d 819, 830 (7th Cir. 2014). Rather, all a plaintiff has to do is allege that a particular
defendant discriminated against him in a particular way because of a particular
characteristic. Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010). See also
20
Rutledge v. Illinois Dept. of Human Services, 785 F.3d 258, 259 (7th Cir. 2015) (allegation
that “discharge ostensibly for neglect was actually motivated by [plaintiff’s] being disabled”
was sufficient at pleading stage to state claim for disability discrimination).
Plaintiff
complied with that minimal requirement. Am. Cpt. ¶ 32, dkt. #9 (“In denying the request
[for first shift line captain position] Humphreys intentionally discriminated against plaintiff
as compared to other similarly situated non-disabled captains (or captains who did not have
a known disability) who were regularly assigned to open captain positions on the basis of
their seniority.”).
To the extent defendants mean to argue that plaintiff failed to show in his summary
judgment materials that he was treated less favorably than a nondisabled employee, I
disagree. It is undisputed that defendants gave the position to Grant Berg and that Berg had
never requested an accommodation for a disability. This is sufficient to allow a reasonable
jury to infer that defendants were not aware of any disabilities that Berg might have, at least
in the absence of evidence to the contrary.
Defendants’ third argument is, again, nonresponsive to plaintiff’s actual claim.
Defendants say that plaintiff has admitted that defendant Humphreys was not aware of
plaintiff’s disabilities when he reassigned plaintiff to third shift, but plaintiff is not alleging
that defendants’ initial reassignment decision was discriminatory. Rather, plaintiff is alleging
that defendants discriminated against him by refusing to place him back on first shift after
a new first shift position opened up. Because it is undisputed that Humphreys was aware
of plaintiff’s sleep apnea and heart condition at that point, this argument fails as well.
21
Defendants fail to develop their argument that plaintiff cannot sue Humphreys under
§ 1983 and the equal protection clause for conduct that is also a violation of the
Rehabilitation Act. As a substitute for argument, defendants cite Levin v. Madigan, 692
F.3d 607 (7th Cir. 2012), but, in that case, the court did not address the issue for which
defendants cite it. Rather, after conducting a lengthy review of legislative intent and a
comparison of the scope of the rights and remedies protected under the statutory and
constitutional rights, the court of appeals held that a plaintiff could pursue simultaneous
claims under the equal protection clause and the Age Discrimination in Employment Act.
Id. at 617-22. Although a holding regarding the ADEA does not necessarily apply to the
Rehabilitation Act, I decline to conduct an analysis under the Rehabilitation Act in the
absence of any argument from defendants.
Finally, because defendants did not challenge the sufficiency of plaintiff’s evidence
of discrimination in their opening brief, I need not consider that issue. Sublett v. John
Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir.2006) ("As a general matter, if the moving
party does not raise an issue in support of its motion for summary judgment, the nonmoving
party is not required to present evidence on that point, and the district court should not rely
on that ground in its decision."). Although defendants argue for the first time in their reply
brief that they had nondiscriminatory reasons for denying plaintiff’s request, again, that was
too late. I decline to consider this argument or any other new argument in defendants’ reply
brief related to plaintiff’s disparate treatment claim.
22
C. Constructive Discharge
A “constructive discharge” occurs when an employee is “forced to resign because her
working conditions, from the standpoint of the reasonable employee, had become
unbearable." EEOC v. University of Chicago Hospitals, 276 F.3d 326, 331 (7th Cir. 2002).
In their reply brief, defendants argue for the first time that plaintiff cannot meet that
standard as a matter of law. Because this is yet another issue that defendants ignored in
their opening brief and they do not argue that plaintiff’s’ complaint failed to give adequate
notice of this aspect of his claim, I decline to consider the issue.
ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants
Wisconsin Department of Corrections and Robert Humphreys, dkt. #19, is DENIED.
Entered this 15th day of January, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
23
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