Erickson, Elizabeth v. Department of Workforce Development et al
Filing
125
OPINION AND ORDER. Plaintiff failed to demonstrate her claims under the ADA and Rehabilitation Act by a preponderance of the evidence. The clerk of court is directed to enter judgement in favor of defendants. Signed by District Judge William M. Conley on 12/13/2016. (kwf) Modified on 12/13/2016. (lak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ELIZABETH A. ERICKSON,
v.
Plaintiff,
OPINION AND ORDER
DEPARTMENT OF WORKFORCE
DEVELOPMENT, DIVISION OF
VOCATIONAL REHABILITATION OF
THE STATE OF WISCONSIN, MICHAEL
GRECO, JOHN HAUGH, and PATRICIA
NOLAND,
15-cv-320-wmc
Defendants.
Plaintiff Elizabeth Erickson brings claims for disability discrimination and failure
to accommodate under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
et seq., the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA” or
“ADA”), 42 U.S.C. § 12101, et seq.
After the court denied defendants’ motion for
summary judgment (dkt. #72), the case proceeded to a bench trial (dkt. #79). On the
third day of trial, following the close of all testimony and other evidence relevant to a
determination of liability, the court held that Erickson had failed to prove a required
element of both of her claims -- that she was otherwise qualified to perform the essential
functions of a counselor-in-training position even with accommodations.
For reasons
stated on the record, I found in favor of defendants and issue this opinion and order to
elaborate on my findings and reasoning.
OPINION
Plaintiff Erickson’s discrimination and failure-to-accommodate claims both require
a showing that she is a qualified individual with a disability. See Felix v. Wis. Dep’t of
Transp., 828 F.3d 560, 568 (7th Cir. 2016) (describing elements for a discrimination
termination claim under the Rehabilitation Act); Cloe v. City of Indianapolis, 712 F.3d
1171, 1176 (7th Cir. 2013) (setting forth elements for a failure to accommodate claim
under the ADA). This requirement has two elements: (1) that she is disabled within the
meaning of those statutes; and (2) that she was able to perform the essential functions of
her job either with or without an accommodation. As for the first element, this court
credited Erickson’s testimony, as well as that of her expert Connie Nadler and the
medical report of Dr. Kortenkamp, establishing her profound, long-standing hearing loss
in her right ear and tinnitus, which can hinder her ability to communicate effectively,
although she has largely overcome the former through raw intelligence and development
of other communication skills.
The court further credits Nadler’s expert opinion
testimony that Erickson has an auditory working memory weakness, except to the extent
inconsistent with the medical diagnosis offered by Dr. Kortenkamp.
Erickson’s proof, however, faltered on the second element -- that she was
otherwise qualified to perform the job of counselor-in-training. This element has its own
two-step test.
First, courts are to “consider whether the individual satisfies the
perquisites for the position, such as possessing the appropriate education background,
employment, experience, skills, licenses, etc.” Stern v. St. Anthony’s Health Ctr., 788 F.3d
276, 285 (7th Cir. 2015). At trial, the defendants did not meaningfully dispute that
2
Erickson satisfied the prerequisites of a counselor-in-training position. Furthermore, the
court found her to be credible, engaging, clearly bright, and likely to be highly successful
in any number of jobs.
Having found the first step satisfied, the court considers the second:
whether
Erickson “can perform the essential functions of the position held or desired, with or
without reasonable accommodation.”
Defendants established that the essential
Id.
functions of the counselor-in-training position included:
(1) assessing her customers’
eligibility for assistance; (2) drafting appropriate Individual Plans for Employment
(“IPE”); and (3) successfully closing a reasonable number of her cases.
Through the
testimony of John Clark and others, defendants credibly documented legitimate concerns
regarding Erickson’s performance as to each of these core functions: (1) failure to assess
and determine eligibility timely; (2) difficulty in developing effective IPEs based on an
accurate assessment of a consumer’s strengths and weaknesses; and (3) most importantly,
an inability to move consumers to a successful placement (i.e., successfully “close cases”).
Accordingly, the dispositive questions at trial were:
disability
contributed
to
these
performance
concerns;
(1) whether Erickson’s
and
(2)
if
so,
would
accommodations have allowed her to perform the job successfully. The evidence to the
first question again fell in Erickson’s favor, since her disability may very well have
interfered with her ability to communicate effectively with consumers, particularly in
group settings or with substantial background noise. Interference with plaintiff’s ability
to communicate with her clients obviously would touch on all three of Erickson’s core job
functions: assessing eligibility, drafting an IPE and moving the case to closure.
3
Still, Erickson neither sought nor established a need for an accommodation to
address any difficulty with respect to one-on-one communication with her clients. To the
contrary, she testified that she could effectively self-compensate for any difficulty in
hearing or processing in those situations by shutting her office door. 1
Moreover,
Erickson does not contend that the planned accommodations offered by defendants were
inadequate once her disability became known; rather, her complaint was that the
accommodations were not actually implemented and, even if implemented, were not in
place for a sufficient period of time to allow for them to work. Both are strong points,
even discounting for the fact that Erickson was so good at compensating for her hearing
loss that none of the supervisory or other staff picked up on it. 2
By the time the need for some accommodations were addressed, however,
Erickson had already demonstrated an inability to assess her own customer’s needs based
on their skills and limitations, to develop a plan to pursue viable work, and ultimately to
succeed. While Nadler opined in conclusory fashion in her expert report and at trial that
some of these failures may have been due to Erickson’s own disabilities, the
One of plaintiff’s experts, Nadler, did opine that other hindrances in Erickson’s own office may
have interfered with her ability to overcome her hearing/processing disability, even in one-on-one
client interacting with her door closed, including fan and hallway noises. There are at least two
problems with Nadler’s opinion. First, Erickson herself didn’t buy it, choosing not to use hearing
or processing aids, like real-time transcription, when dealing with clients in her office. Second,
she had good reasons to feel confident in that setting, particularly given her demonstrated ability
to compensate effectively with other techniques. Regardless, plaintiff failed to establish by a
preponderance of the evidence that Erickson’s failures to meet core competencies for a counselorin-training position was due to her disability with or without accommodation, rather than other
factors.
1
This was, of course, a great irony given that all of the DWD staff were trained to draw out,
detect and address disabilities in their customers, and Erickson had been one of those customers.
2
4
preponderance of the evidence suggests it was due to other factors, most likely involving
a lack of discernment of her clients’ limitations and the practicalities of their individual,
ongoing plans to obtain long-term employment.
Ignoring any problems with her one-on-one conversations with consumers,
Erickson raised concerns about her training and instructions, or lack thereof. Obviously,
if she were solely provided oral instructions on how to discern a customer’s need, draft an
IPE or successfully advance a case to closure, then Erickson might have a credible claim
that her disability contributed to her performance issues. The evidence at trial did not
support that claim, however, since Erickson had access to ample written training
materials, guides and manuals on these topics as well. Perhaps Erickson missed the full
benefit of certain training sessions, but she provided no evidence that greater access to
and understanding of those oral presentations would have meaningfully turned her
performance deficiencies around. At the very least, Erickson failed to demonstrate by a
preponderance of the evidence that any of the suggested accommodations would have
made her qualified for the position of counselor-in-training, much less a full blown
counselor.
Instead, Erickson’s proof focused on her interactions with Patricia Noland,
Erickson’s supervisor, after her ongoing performance issues came to a head in August
2012. Plaintiff credibly testified that her subsequent lengthy, one-on-one oral training
sessions with Noland were difficult for Erickson, both because of her disability and
because the time spent with Noland, as well as the additional tasks Noland assigned her,
served mainly to distract Erickson from performing her core functions.
5
No doubt,
Erickson’s disability contributed to those sessions proving unsuccessful, as did an
apparent personality clash, but they do not support a finding that her disability
contributed to her longstanding performance concerns, particularly the fact that only a
few of her client files were ever successfully closed.
Erickson rightly points out that defendants agreed to craft an accommodation for
her disability, yet her direct supervisor, Noland, did not believe that the accommodations
would further Erickson’s chances of meeting performance expectations. (Indeed, Noland
obviously viewed Erickson claim of a disability only after both Clark and she were
repeatedly critical of Erickson’s job performance as a transparent attempt to save her job,
an attitude that surely made their ongoing training sessions even less likely to succeed.)
Admittedly, the question as to whether Erickson could meet the requirements of
her job with accommodations remained a close one at trial, all the more so because of the
Division’s schizophrenic response to Erickson’s request for an accommodation.
Still,
Erickson failed to demonstrate that it was more probable than not that an
accommodation would have remedied defendants’ legitimate performance concerns. On
the contrary, for reasons already discussed, the court found from the evidence received at
trial that it was likely Erickson’s disability played a small role, if any, in her apparent
inability to meet the core functions of her position -- determining eligibility, drafting a
sufficient number of adequate IPEs and advancing her cases to a successful close.
While the court, therefore, found that Erickson failed to prove she was otherwise
qualified for the position of counselor-in-training, it would be remiss not to point out
that defendants’ handling of Erickson’s request for accommodation, and then abrupt
6
termination, was abysmal. As the court found at the end of trial, defendants’ crafting of
an accommodation by the central office’s HR department was deliberately divorced from
meaningful involvement by Erickson’s actual supervisors, apparently in an ill-advised
attempt to ensure a dispassionate assessment of her needs, which instead insured that the
accommodations would make little practical impact on Erickson’s job performance.
Moreover,
in
terminating
Erickson’s
employment
some
six
weeks
after
the
accommodations were put in place, the Division further underscored the hollowness of
the entire accommodation process.
As a result, the defendants’ only viable defense at trial was to hope Erickson could
not prove that she was otherwise qualified to fulfill the position. While that gamble
worked out in their favor in this case, if barely, defendants may well want to reconsider
how it approaches requests for accommodations like this going forward, both as to who
should participate in developing meaningful accommodations and giving them time to
take root.
Stating the obvious, one would expect the Division of Vocational
Rehabilitation for the Wisconsin Department of Workforce Development to do more to
comply with the requirements of the ADA and Rehabilitation Act than virtually any other
employer, especially when it was dealing with one of its own, former customers, rather
than strictly adhering to the letter of the law.
ORDER
IT IS ORDERED that:
1) Plaintiff failed to demonstrate her claims under the ADA and Rehabilitation
Act by a preponderance of the evidence.
7
2) The clerk of court is directed to enter judgement in favor of defendants.
Entered this 13th day of December, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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