Kerner, Karen v. Georgia-Pacific Wood Products LLC et al

Filing 51

ORDER denying defendant's 36 Motion for Summary Judgment; plaintiff's denying 41 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 10/18/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - KAREN KERNER,
OPINION AND ORDER
Plaintiff,
16-cv-187-bbc
v.
GEORGIA-PACIFIC WOOD PRODUCT, LLC,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Karen Kerner is suing her former employer, defendant Georgia-Pacific
Wood Product, LLC for allegedly subjecting her to a hostile work environment and then
terminating her because of a disability that she suffered as a result of hand and wrist injuries
sustained on the job. Now before the court are the parties’ cross motions for summary
judgment. Dkt. ##36, 41. I am denying both motions because I conclude that there are
disputed issues of material fact that must be resolved by a jury. Fed. R. Civ. P. 56(a).
Before turning to the undisputed facts, a few preliminary matters require discussion.

PRELIMINARY MATTERS
A. Scope of Plaintiff’s Claims
At the outset, it is necessary to clarify the scope of plaintiff’s discrimination claims.
As discussed in the September 27, 2016 order denying defendant’s motion to dismiss, I
understood plaintiff to be suing defendant for allegedly subjecting her to a hostile work
1

environment and then terminating her because of her disability. Dkt. #20 at 1. My
understanding of plaintiff’s claims was based on the allegations of plaintiff’s complaint, as
well as the complaint she filed with Wisconsin’s Equal Rights Division. Dkt. #39-4. It
appeared from defendant’s motion for summary judgment that it understood plaintiff to be
bringing claims of disability discrimination and hostile work environment. However, in her
own motion for summary judgment, plaintiff argues that in addition to her disability
discrimination claims, she is bringing claims under Title VII of the Civil Rights Act based on
sex and pregnancy discrimination and retaliation. Dkt. #42 at 1. Many of plaintiff’s
proposed findings of fact and arguments relate to alleged sex and pregnancy discrimination.

Before a plaintiff may file suit for employment discrimination under Title VII, she
must file a timely administrative complaint. Kersting v. Wal-Mart Stores, Inc., 250 F.3d
1109, 1118 (7th Cir. 2001). In Wisconsin, a plaintiff has 300 days from the alleged
discriminatory act to file a complaint with the Equal Employment Opportunity Commission
or the state Equal Rights Division. 42 U.S.C. § 2000e-5(e); Johnson v. J.B. Hunt Transport,
Inc., 280 F.3d 1125, 1128-29 (7th Cir. 2002). A plaintiff’s failure to file a timely
administrative complaint bars her suit. Salas v. Wisconsin Dept. of Corrections, 493 F.3d
913, 921 (7th Cir. 2007).
Plaintiff has not filed any complaint with the EEOC or the Equal Rights Division
asserting retaliation, sex or pregnancy discrimination. Rather, the only administrative
complaint she filed concerned disability discrimination. Dkt. #39-4. Therefore, plaintiff

2

may not pursue her retaliation, sex or pregnancy discrimination claims. I will not discuss
further plaintiff’s arguments or proposed findings of fact that relate solely to those claims.

B. Parties’ Proposed Findings of Fact and Evidentiary Submissions
Both parties submitted proposed findings of fact. Defendant criticizes plaintiff’s
submissions on the ground that she failed to comply with this court’s summary judgment
procedures. In particular, plaintiff combined her proposed findings of fact with her legal
brief, dkt. #42, rather than filing a separate document for her proposed facts as set forth in
the procedures provided to plaintiff in the pretrial conference order, dkt. #24. Additionally,
many of plaintiff’s proposed findings of fact are actually legal arguments. However, in light
of plaintiff’s pro se status, I have considered all of plaintiff’s factual propositions that relate
to her disability discrimination claims and are fairly supported by evidence in the record.
However, I have disregarded any of the plaintiff’s exhibits and factual propositions that are
irrelevant to her disability discrimination claims.
Unfortunately, defendant’s own factual submissions do little to help clarify the record
and provide context for the actions and decisions relevant to plaintiff’s claims. Surprisingly,
defendant chose not to submit any of its own evidence, such as declarations from the
relevant decisionmakers explaining the basis for their decision to terminate plaintiff.
Instead, defendant relies entirely on plaintiff’s own deposition testimony to support its
motion for summary judgment. However, many of defendant’s citations to plaintiff’s
deposition testimony do not actually provide support for defendant’s factual propositions.

3

For example, defendant proposes as fact that “there was never a time when the company
failed to accommodate [plaintiff’s] physical restrictions.” DPFOF, dkt. #37, ¶ 18. But
plaintiff’s deposition testimony does not support this factual proposition. Plaintiff testified
that her supervisor and coworkers refused on several occasions to assist her in completing
tasks she struggled with because of her disability. Plt.’s Dep., dkt. #39, at 63, 76-77.
Similarly, defendant proposes as fact that it attempted to “contact plaintiff on numerous
occasions about job openings” and told plaintiff “to call back with a time she could meet.”
DPFOF, dkt. #37, ¶¶ 8, 12. Again, plaintiff’s deposition testimony does not support
defendant’s proposed facts. Plaintiff testified that she attempted to call defendant numerous
times and that defendant never called her back. Plt.’s Dep., dkt. #39, at 104-108. As for
defendant’s “communications” about job openings, plaintiff testified that these notices were
not particular to her, but were actually job postings sent to all employees as a requirement
of the collective bargaining agreement. Id. at 132-34.
Several more of defendant’s proposed findings of fact are based on unfair or
unsupported characterizations of plaintiff’s deposition testimony. Therefore, I disregarded
the majority of defendant’s proposed findings of fact and instead reviewed plaintiff’s
deposition transcript and the exhibits she submitted.
From my review of plaintiff’s deposition testimony and the evidence in the record,
I find the following facts to be material and undisputed.

UNDISPUTED FACTS

4

Plaintiff Karen Kerner began working for defendant Georgia-Pacific Wood Products
LLC, at a fiber mill in Phillips, Wisconsin, in March 2005. She was part of a union that was
party to a collective bargaining agreement with defendant. In July 2012, she fractured her
finger at work and was placed on medical restrictions.
In October 2012, plaintiff was given a diagnosis of bilateral carpal tunnel syndrome
and chronic regional pain syndrome in both hands and wrists. She was placed on additional
medical restrictions. At the time, plaintiff worked as second shift lead relief operator at the
mill, which meant that she was responsible for certain operations when other employees were
on break. Her position required her to clean, check computers, gauges, pressures and waxes,
and operate the refiner and humidifier if necessary. Her position also required her to crawl
under machines and climb ladders. Because of her carpal tunnel and chronic regional pain
syndrome, plaintiff had “light duty” medical restrictions, which meant she could not perform
all of the tasks associated with her position, including using automatic tools, some pushing
and pulling, certain lifting duties and excessive gripping. Plaintiff’s coworkers were supposed
to help her perform the tasks that she could not perform alone.
After she was placed on medical restrictions, plaintiff was harassed and belittled by
her supervisor, Rick Jones. Jones told her she was not good at her job, nobody liked her and
she should be moved to a different department so he would not have to fire her. He gave
her poor performance evaluations, discarded one of her leave request forms, falsely accused
her of various matters, scolded her repeatedly, yelled at her when she needed help and
attempted to humiliate her by highlighting her mistakes on paper for others to review. He

5

would come up behind her and try to startle her. On one occasion, he removed a tool she
needed to perform her job and told her to work without it, causing her to be injured. During
this same time period, plaintiff was treated poorly by some of her coworkers. In particular,
one coworker threatened to harm her, another coworker destroyed the special gloves she
needed for her injured hands, some coworkers refused to help her with tasks that she could
not do on her own and other coworkers went through her locker and brought her personal
belongings out to the work floor. Plaintiff reported Jones’s and her coworkers’ treatment to
upper management at the mill.
In December 2012, plaintiff had carpal tunnel surgery on her right hand and took
temporary medical leave while she recovered. She returned to work in March 2013, after
which Jones continued to treat her poorly and some coworkers refused to help her when she
needed it. On several occasions, plaintiff had to complete non-light duty work. At some
point in 2013, plaintiff’s doctor told her that the restrictions associated with her carpal
tunnel and chronic pain syndromes were likely permanent.
In early August 2013, plaintiff learned she was pregnant.

She had medical

complications with her pregnancy and her doctor recommended that she stop working
completely for the duration of her pregnancy. She stopped working in early August 2013.
In February 2014, defendant’s disability insurance provider notified plaintiff that her
short term disability coverage was expiring. Plaintiff was still pregnant at the time, and she
sought advice from Janis Peterson, who worked in defendant’s human resources office.
Peterson told plaintiff that she could continue on family medical leave under the terms of

6

the collective bargaining agreement, which provided 18 months of family medical leave.
Plaintiff’s baby was born in March 2014. At that time, she chose to stay on leave until she
had exhausted the 18 months of leave to which she believed she was entitled under the
collective bargaining agreement.
During part of the time plaintiff was on leave, she periodically received notices about
job openings at the fiber mill. The notices were sent to all employees who worked for the
mill, regardless whether they were on leave or qualified for the particular position, as a
condition of the collective bargaining agreement. The notices were not targeted to plaintiff.
These positions were filled by the seniority of those who applied. Defendant stopped
sending notices of vacancies to all employees in June 2014.
In November 2014, plaintiff called Peterson in the human resources department and
told her she was ready to return to work.

Plaintiff believed the collective bargaining

agreement required her return to her previous position as a second shift lead relief operator,
with the same light duty restrictions for her carpal tunnel syndrome that had applied before
her leave.

Peterson told plaintiff to submit a medical release form from her doctor

confirming that she was fit and able to return to work. Plaintiff did so on November 13,
2014, but she did not hear back from Peterson.
Plaintiff continued to attempt to contact defendant about returning to work with no
success. On several occasions, plaintiff called defendant’s human resources office and stated
that she was ready and willing to come back to work. Nobody returned plaintiff’s calls until
February 2015, when Peterson called plaintiff while plaintiff was on a trip in Minnesota.

7

Union representatives were present at the mill at the time, and Peterson asked plaintiff if she
could meet to discuss her return to work. Because she was out of town, plaintiff proposed
setting up a telephone conference with the union representatives. Peterson told plaintiff she
would call her back, but she did not. When plaintiff called her union representative about
returning to work, the union representative told plaintiff that no one had contacted him
about plaintiff.
On March 2, 2015, defendant sent plaintiff a letter stating that she was being
terminated effective March 6, 2015 because she had been on leave for 19 months and had
exhausted her leave time.
On May 18, 2015, plaintiff filed a complaint alleging employment discrimination
with the Wisconsin Department of Workforce Development’s Equal Rights Division. On
October 19, 2015, the Division concluded that there was no probable cause to believe that
defendant violated the Wisconsin Fair Employment Law. On December 23, 2015, the Equal
Employment Opportunity Commission adopted the findings of the Division, dismissed
plaintiff’s EEOC charge and issued her a “right to sue” letter. Plaintiff filed this lawsuit on
March 24, 2016.
The fiber mill closed in August 2015. Plaintiff believes she would have been fit to
work from November 2014 to August 2015, when the mill closed.

OPINION
As discussed above, I understand plaintiff to be bringing claims that defendant

8

violated the Americans with Disabilities Act, 42 U.S.C. § 12112(a), by terminating her and
subjecting her to a hostile work environment because of her disability. Defendant makes
several arguments as to why plaintiff’s claims must fail, including that (1) her claims are
untimely; (2) she is not disabled; and (3) defendant had a legitimate, non-discriminatory
reason for terminating plaintiff. I discuss each of these arguments below.

A. Timeliness
Defendant makes two arguments regarding the timeliness of plaintiff’s claims. First,
defendant argues that plaintiff’s entire complaint should be dismissed because she failed to
file it within 90 days of receiving her right-to-sue letter from the Equal Employment
Opportunity Commission.

Second, defendant argues that plaintiff’s hostile work

environment claim is untimely because she failed to file a complaint with the state’s Equal
Rights Division within 300 days of the most recent act of hostility.

1. 90-day deadline
The Americans with Disabilities Act requires claimants to file suit within 90 days after
receiving the right to sue letter from the EEOC. Houston v. Sidley & Austin, 185 F.3d 837,
838-39 (7th Cir. 1999). Defendant argues that plaintiff’s suit is untimely because the
EEOC’s right to sue letter was sent on December 23, 2015, and plaintiff did not file suit
until March 24, 2016, 92 days later.
Defendant is incorrect. It is well established that the 90-day period does not start

9

running until the claimant actually receives the right to sue letter from the EEOC, not when
it was sent. DeTata v. Rollprint Packaging Products Inc., 632 F.3d 962, 967–68 (7th Cir.
2011); Prince v. Stewart, 580 F.3d 571, 574 (7th Cir. 2009); Threadgill v. Moore, U.S.A.,
Inc., 269 F.3d 848, 849–50 (7th Cir. 2001). Defendant has submitted no evidence of when
plaintiff received the right to sue letter, though I can take judicial notice that she would not
have received a letter in Phillips, Wisconsin on the same day it was sent from Milwaukee.
Moreover, under Federal Rule of Civil Procedure 6(d), parties have an additional three days
to respond if service is made by mail. Under this rule, a court may presume that a claimant
receives a right to sue letter within three days of mailing. Baldwin County Welcome Center
v. Brown, 466 U.S. 147, 148 n.1 (1984) (presuming EEOC right to sue notice was received
three days after its issuance, pursuant to Rule 6, when plaintiff did not have proof
otherwise). Because plaintiff filed her complaint within 90 days of her presumed receipt of
the right to sue letter, her complaint was timely.

2. 300-day deadline
Defendant next argues that plaintiff’s hostile work environment claim is barred
because she failed to file a hostile work environment claim with the EEOC or Wisconsin’s
Equal Rights Division within 300 days of the alleged hostile work environment. In this
instance, I agree with defendant that plaintiff’s claim is barred.
Like a plaintiff who brings a discrimination claim under Title VII, a plaintiff who
wishes to bring a claim under the Americans with Disabilities Act in federal court must file

10

an administrative complaint with the state’s Equal Rights Division within 300 days from the
date of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1); Johnson v. J.B. Hunt
Transport, Inc., 280 F.3d 1125, 1128-29 (7th Cir. 2002). A plaintiff’s failure to file a timely
administrative complaint bars her suit. Salas, 493 F.3d at 921; Alexander v. Wisconsin
Dept. of Health & Family Services, 263 F.3d 673, 680 n.1 (7th Cir. 2001).
Plaintiff alleges that she was subjected to a hostile work environment during 2012 and
2013. However, her last day at work was August 3, 2013. Plaintiff cannot prove she was
subjected to a hostile work environment during a time in which she was absent from work.
Thus, plaintiff was required to file her Equal Rights Division charge by May 30, 2014, which
would have been within 300 days of her last date of work. Instead, she waited until May 18,
2015, which was 653 days after her last day of work.

Therefore, her hostile work

environment claim is time-barred.

B. Disability Discrimination
Plaintiff’s remaining claim is that she was terminated because of her bilteral carpal
tunnel and chronic regional pain syndrome. The Americans with Disabilities Act prohibits
discrimination against “a qualified individual on the basis of disability in regard to . . . the
hiring, advancement, or discharge of employees[.]”

42 U.S.C. § 12112(a).

The Act

describes various ways an employer can discriminate on the basis of disability, including
failing to make reasonable accommodations and denying employment opportunities, which
includes termination of employment. 42 U.S.C. § 12112(b)(5)(A), (B). See also Brumfield

11

v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013).

To prevail on an ADA

discriminatory termination claim, plaintiff must show: (1) she is disabled; (2) she is able to
perform the essential functions of the job either with or without reasonable accommodation;
and (3) she suffered an adverse employment action because of her disability. Felix v.
Wisconsin Dept. of Transportation, 828 F.3d 560, 568 (7th Cir. 2016); Majors v. General
Electric Co., 714 F.3d 527, 533 (7th Cir. 2013). Defendant argues that plaintiff cannot
prove any of these things.

1. Evidence of disability
An individual is disabled within the meaning of the ADA when she has “(A) a physical
or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such impairment; or (C) [is] regarded as having such an
impairment.” 42 U.S.C. §12102(1). Whether any given condition is a disability “is an
individualized inquiry, which must be determined on a case-by-case basis.” Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 631 (7th Cir. 1998) (internal citations omitted). 29 C.F.R.
§ 1630.2(i)(1)(i) includes in the definition of “major life activities” a variety of activities
including “concentrating, thinking, communicating, interacting with others, and working[.]”
When the major life activity under consideration is that of working, a plaintiff must
demonstrate that “she was significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the average person having
comparable training, skills and abilities.” Stein v. Ashcroft, 284 F.3d 721, 725 (7th Cir.
2002).
12

Defendant disputes plaintiff’s contention that her carpal tunnel and chronic regional
pain syndrome interfered with “one or more major life activities.” Defendant argues that
plaintiff’s only evidence on this point is that her hand and wrist problems limit her ability
to perform certain narrow aspects of her job for defendant, which is not enough to establish
disability. E.g. Stein, 284 F.3d at 726 (“A plaintiff's inability to perform ‘one narrow job for
one employer’ is insufficient to establish a disability.”).
Plaintiff testified at her deposition that her hand and wrist problems caused her
“continued chronic pain” that radiated from her hands up to her arms and shoulders,
requires her to take daily pain medication and restricted her ability to work in several ways.
Plt.’s Dep., dkt #39, at 70, 104. In particular, she was restricted to “minimal use” of her
right and left extremities, can lift only one to five pounds, cannot push or pull and must rest
her hands every hour. Id. at 97-98. In addition, she could not use power tools or engage in
excessive gripping. I conclude that this testimony is sufficient to create a genuine factual
dispute regarding whether plaintiff’s carpal tunnel and chronic regional pain syndrome
substantially interfered with her ability to work generally, and not just in performing a
narrow job for one employer. This is particularly true in light of the statement in 29 C.F.R.
§ 1630.2(j)(1)(i), that “substantially limits” is “not meant to be a demanding standard,” and
shall “be construed broadly in favor of expansive coverage, to the maximum extent permitted
by the terms of the ADA.” The ability to engage in only minimal use of her right and left
extremities, the inability to lift more than five pounds and the requirement that she rest
every hour would seem to interfere substantially with her ability to perform a broad range

13

of jobs, and not just one narrow part of her job for defendant. Accordingly, I conclude that
plaintiff has made a sufficient showing that she is disabled under the ADA to withstand
summary judgment.

2. Qualified to perform the essential functions of the employment position
Plaintiff must also show that she is a “qualified” individual with a disability, meaning
that she is “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). Defendant asserts that plaintiff cannot show that she was qualified
because she never returned to work after her leave and attendance is an essential function
of any job. Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999) (“The rather
common-sense idea is that if one is not able to be at work, one cannot be a qualified
individual.”). Defendant further argues that because plaintiff failed to pursue any of the
numerous openings offered by defendant and otherwise failed to make an effort to
communicate with defendant about positions, she could not perform the essential functions
of her job.
However, according to plaintiff’s version of events, which is the only version of events
before the court, she took an extended maternity leave because defendant told her she could
do so under the terms of the collective bargaining agreement. Defendant has not disputed
this or otherwise argued that plaintiff extended her maternity leave improperly. Moreover,
plaintiff says she was capable of returning to work in November 2015, but when she

14

attempted to do so, defendant ignored her, waited until her leave had expired and then fired
her. As for the purported job openings, plaintiff explains that defendant did not actually
send those notices to her in particular, but rather sent those notices to all employees.
Further, there is no evidence about what these openings were, whether plaintiff was qualified
for them or whether she would have been placed in them in light of her seniority. Nor has
defendant explained why plaintiff should have applied for different positions if, as plaintiff
asserts, she should have been returned to her previous position. In short, none of the
evidence in the record supports defendant’s argument that plaintiff could not perform the
essential functions of her job when she sought to return in November 2015. For purposes
of summary judgment, I am satisfied that plaintiff has presented a prima facie case showing
that she was a qualified individual under the ADA.

3. Causation
Finally, defendants seek summary judgment on the basis that plaintiff cannot show
that she was terminated because of her disability. Specifically, defendant argues that the
evidence demonstrates that plaintiff was terminated not because of her any disability, but
because she failed to return to work.
Defendant’s argument suffers from the same problems identified above. Specifically,
defendant has submitted no evidence to explain why it would terminate plaintiff for failing
to return to work when, according to plaintiff’s testimony, plaintiff was actively seeking to
return to work. Plaintiff suggests that the reason defendant has no evidence to explain its

15

decision is because defendant actually terminated her because it did not want to continue
accommodating her disability by requiring others to help her with non-light duty tasks.
Plaintiff points out that she had complained repeatedly to upper management about her
supervisor’s behavior and about the instances in which she was denied assistance or
otherwise harassed.
Construing the evidence in the light most favorable to plaintiff, a reasonable jury
could conclude that plaintiff was terminated because of her disability. Defendant has not
provided an adequate explanation for its termination decision and has offered no evidence
to dispute plaintiff’s description of the tension created among other employees by the
accommodations she needed. It may be that defendant has a reasonable and plausible
explanation for plaintiff’s termination, but defendant has not offered it to the court. From
the evidence in the record at this stage, a jury could conclude that defendant did not want
to deal with accommodating plaintiff’s disability and that, instead of allowing her to return
to work in November 2014, it strung her along until March 2015 when it could fire her
because her leave expired.

For these reasons, defendant is not entitled to summary

judgment.

ORDER
IT IS ORDERED that
1. Defendant Georgia-Pacific Wood Product, LLC’s motion for summary judgment,
dkt. #36, is DENIED.

16

2. Plaintiff Karen E. Kerner’s motion for summary judgment, dkt. #41, is DENIED.
Entered this 18th day of October, 2017.

BY THE COURT:
/s/
________________________________
BARBARA B. CRABB
District Judge

17