Williams, Patricia v. State of Wisconsin, Department of Workforce Development, Division of Vocational Rehabilitation et al

Filing 52

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 50 Notice of Appeal. (Attachments: # 1 May 5, 2017 Order, # 2 May 5, 2017 Judgment, # 3 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA WILLIAMS,
OPINION and ORDER
Plaintiff,
16-cv-475-bbc
v.
WISCONSIN DEPARTMENT OF WORKFORCE
DEVELOPMENT, DIVISION OF VOCATIONAL
REHABILITATION, NICHOLAS LAMPONE,
DELORI NEWTON and ENID GLENN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Patricia Williams receives services from the Division of Vocational
Rehabilitation of the Wisconsin Department of Workforce Development to help her find
employment. One of the services she receives is the development of an “individualized plan
for employment,” which outlines the duties and responsibilities of both plaintiff and the
division in plaintiff’s employment search. In this case, plaintiff is proceeding on claims that
defendant Wisconsin Department of Workforce Development and several of its employees
violated the Rehabilitation Act by eliminating payments for car repairs and work clothes
from the list of vocational services that the state would provide as part of plaintiff’s
individualized plan for employment; and (2) failing to consult plaintiff before removing
those services from the plan.
Several motions are before the court: (1) defendants’ motion for summary judgment,
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dkt. #24; (2) plaintiff’s “motion to dismiss defendants summary judgment,” dkt. #37; (3)
plaintiff’s “motion to reply,” dkt. #41; (4) plaintiff’s “motion for leave to file sur-reply
memorandum,” dkt. #45; and (5) plaintiff’s “memorandum and motion for consolidation
of both cases & add other defendants,” dkt. #46. For the reasons explained below, I am
granting plaintiff’s “motion to reply,” denying plaintiff’s remaining motions and granting
defendants’ motion for summary judgment.

OPINION
I. PLAINTIFF’S MOTIONS
Plaintiff’s motions can be resolved without extended discussion. First, plaintiff’s
“motion to dismiss defendants’ summary judgment” is not easy to follow, but I understand
plaintiff to be asking the court to strike defendants’ summary judgment motion on the
ground that defendants included with the materials they served on her documents for a case
filed by a different plaintiff in a different judicial district. That is not a ground for striking
or denying a summary judgment motion. Plaintiff does not allege that defendants failed to
serve her with all the summary judgment materials related to this case, so plaintiff suffered
no prejudice from this mistake. She was free to disregard any documents that did not relate
to her case.
Second, in plaintiff’s one-paragraph “motion to reply,” which she filed approximately
one week after defendants filed their summary judgment reply brief, plaintiff does not
specify what she is requesting. However, the following day, plaintiff filed belated responses

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to defendants’ proposed findings of fact, dkt. #42, so I assume she was asking for permission
to file those. Defendants later submitted a reply to those responses, dkt. #44, so I see no
harm to defendants in considering plaintiff’s responses.

Accordingly, I will construe

plaintiff’s “motion to reply” as a motion to file untimely responses to defendants’ proposed
findings of fact and I will grant the motion.
Third, plaintiff does not explain in her “motion for leave to file sur-reply
memorandum” why she wants to file a sur-reply brief. She says generally that she wants to
“address[] several arguments made by Defendants in their reply memorandum,” but she does
identify what those arguments are and she did not attach a proposed sur-reply to her motion.
In any event, I did not need to consider any arguments that defendants raised in their reply
brief, so I will deny this motion as unnecessary.
Fourth, plaintiff seeks to consolidate this case with another case she filed in this court,
Williams v. Department of Workforce Development, No. 16-cv-830-bbc (W.D. Wis.).
Because this case is ripe for a decision on summary judgment and case no. 16-cv-830-bbc is
just getting started, it makes little sense to combine the two cases. Accordingly, I will deny
plaintiff’s request for consolidation.

II. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A. Background
Plaintiff is proceeding on two claims, both of which arise under the Rehabilitation Act
and relate to her “individualized plan for employment.” First, she says that defendants

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violated the Act by removing "car repairs" and "work clothes" from the list of items that the
state would pay for. Second, she says that defendants violated the Act by failing to consult
her before removing those items.
Plaintiff devotes much of her 53-page summary judgment brief to a number of other
issues that are outside the scope of her complaint and the court’s screening order, such as
allegations of discrimination and retaliation.

Because a plaintiff cannot amend her

complaint in a summary judgment brief, Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir.
2012), I decline to consider these other issues.
Defendants ask the court to grant them summary judgment as to both of the claims
on which plaintiff is proceeding, raising multiple procedural and substantive arguments: (1)
the individual defendants cannot be sued under the Rehabilitation Act; (2) plaintiff did not
exhaust her administrative remedies as to her claim that defendants improperly removed car
repairs from her individualized plan for employment; (3) defendant Department of
Workforce Development did not violate the Rehabilitation Act by eliminating car repairs
and work clothes from her individual plan for employment because those services were not
necessary to achieve plaintiff’s employment goals; (4) plaintiff agreed to the changes in her
individualized plan for employment, so she was not denied “informed choice”; and (5) the
individual defendants are entitled to qualified immunity. In addition, defendants argue that
the court is required to give “substantial deference” to the decision of the state
administrative law judge, who concluded that the department did not violate the
Rehabilitation Act by removing work clothes from plaintiff’s plan and that the department

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did not deny plaintiff “informed choice.”
It is unnecessary to consider most of these arguments. Even if I assume that each
defendant is a proper party, that plaintiff exhausted her administrative remedies and that
the administrative law judge is not entitled to any deference, I conclude that defendants did
not violate the Rehabilitation Act with respect to either of plaintiff’s claims.

B. Individualized Plan for Employment
The process for obtaining and implementing an individualized plan for employment
as well as the required contents of a plan are outlined in 29 U.S.C. § 722, which is part of
the Rehabilitation Act. Generally, the purpose of such plans is to help individuals with
disabilities obtain employment. 29 U.S.C. § 722(a)(1). The parties agree that plaintiff
suffers from diabetes and anxiety and defendants do not challenge plaintiff’s eligibility for
receiving a plan, so I do not consider that issue.
The task of implementing an individualized plan for employment is shared by both
the individual with a disability (the parties call this person the “consumer”) an the
“designated state agency,” which the parties agree is the Wisconsin Department of
Workforce Development. Each plan must include “a description of the specific employment
outcome that is chosen by the eligible individual” and “a description of the specific
vocational rehabilitation services that are . . . needed to achieve the employment outcome,”
among other things. 29 U.S.C. § 722(b)(4). I will discuss other provisions of the Act as
they become relevant to the discussion.

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At the time relevant to this case, plaintiff’s long-term employment goal was to become
a “training/employment specialist” or “career counselor.” Dkt. #29-4, exh. 1007 at 25.
(Plaintiff later changed her goal to becoming a “civil rights attorney.” Id. at 72.) Her
September 2015 individualized plan for employment included “primary services” for “job
search assistance,” “vocational guidance/counseling,” “state LTE/internship,” “computer
system, printer, software” and “diabetic dress shoes for work.” Dkt. #30-1, exh. 1000. Her
“secondary services” included “vehicle repairs—if necessary,” “work clothing—as needed,”
“transportation—mileage

reimbursement

for

job

search

as

needed”

and

“transportation—parking while participating in state LTE/internship.”
In plaintiff’s April 2016 individualized employment plan, the items related to
computers and clothes were removed. The item for vehicle repairs was replaced with “final
vehicle repair—repair/replacement of front brake pads/rotors” and “taxi cab fare—for
transportation to/from work when personal vehicle is not available.” Dkt. #30-2, exh. 1001.

C. Decision to Stop Paying for Car Repairs and Work Clothes
As I noted in the screening order, § 722 describes the type of information that must
be included in an individualized plan for employment, but the Act does not say whether or
when the state must pay for particular services. Following a number of other courts that
have addressed the issue, I reached a tentative conclusion in the screening order that the
state must pay for services that are “necessary” to achieve the individual’s employment goals.
Millay v. Maine, 986 F. Supp. 2d 57, 72 (D. Me. 2013); Yochim v. Gargano, 882 F. Supp.

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2d 1068, 1080 (S.D. Ind. 2012); Carrigan v. New York State Education Dept., 485 F. Supp.
2d 131, 138 (N.D.N.Y. 2007). In light of the lack of authority in this circuit, I invited the
parties’ to address in their summary judgment submissions whether “necessity” is the
appropriate standard. Defendants agree with that standard and plaintiff does not challenge
it, so I see no reason to consider that issue again. Accordingly, the key question is whether
plaintiff can show that car repairs and work clothes were “necessary” services for achieving
her employment goals. (Defendants also argue that plaintiff has not submitted evidence of
discriminatory intent, but they point to no provision in § 722 that would require plaintiff
to prove that, so I do not consider that issue.)
As to car repairs, defendants point to a change in state policy that required consumers
to pay for their own car repairs. Dfts.’ PFOF ¶ 36, dkt. #44. As a substitute, plaintiff’s new
individualized plan for employment authorized taxi cab fare for work-related travel “when
[her] personal vehicle is not available.” Dkt. #30-2, exh. 1001. In addition, the plan
authorized one last payment for repairs that plaintiff said she needed at the time. Dfts.’
PFOF ¶ 44, dkt. #44.
Defendants offer two reasons for removing work clothes from plaintiff’s plan. First,
the department had paid plaintiff $250 for work clothes a few months earlier. Id. at ¶ 48.
Second, because plaintiff was not employed at the time, she did not need more work clothes.
Id. at ¶ 46. However, Patrick Schultz (plaintiff’s vocational counselor) informed her that
clothes could be included in her plan again if they became necessary. Id. at ¶ 47.
These explanations are reasonable on their face. Even assuming that the department

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has an obligation to assist plaintiff with her transportation costs, car repairs would not be
necessary if the department agrees to pay for alternative transportation when it is needed.
Similarly, new work clothes would not be necessary because plaintiff had just purchased
clothes and had not identified any reason why she needed more clothes at the time.
Plaintiff does not cite any contrary evidence or otherwise challenge the substance of
defendants’ decisions in her summary judgment brief. In particular, she does not identify
any instances in which she was unable to reach a job interview or other work-related event
because she did not have transportation and she does not identify any clothes she needed
but did not have. Accordingly, I conclude that defendants are entitled to summary judgment
on this claim.

D. Failure to Consult Plaintiff before Changing Plan
I allowed plaintiff to proceed on a claim that defendants violated the Rehabilitation
Act by failing to consult her before deciding to remove car repairs and work clothes from her
individualized plan for employment. I relied on 29 U.S.C. § 722(b)(3)(E), which states that
“[t]he individualized plan for employment shall be . . . amended, as necessary, by the
individual . . . , in collaboration with a representative of the designated State agency or a
qualified vocational rehabilitation counselor (to the extent determined to be appropriate by
the individual), if there are substantive changes in the employment outcome, the vocational
rehabilitation services to be provided, or the . . . providers of the services.” More generally,
§ 722(b)(2)(B) states that the plan should give individuals “the opportunity to exercise

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informed choice” about a number of matters, including “the specific vocational rehabilitation
services to be provided under the plan.”
In response to this claim, defendants point out that plaintiff signed the April 2016
plan that she is challenging in this case. Dkt. #29-4, exh. 10071 at 31. Above her signature,
plaintiff marked boxes next to the statements that “I have been offered the choice to develop
my own plan,” “I have been offered assistance in creating my employment plan” and “I have
been given choices to assist me in creating my employment plan.” Id.
Plaintiff says that she was “coerced” into signing the plan because that was the only
way that the department would pay for the car repairs that she needed at the time. Dkt.
#38 at 44-45. However, the question whether plaintiff felt pressure to sign the form is
different from the question whether plaintiff had notice and an opportunity to object to the
changes in the plan. Plaintiff does not cite any provision in the Rehabilitation Act that
prohibits the department from implementing a plan unless she is satisfied with it. That
would be inconsistent with the rule noted above that an individual does not have a right to
require the state to pay for a service unless the service is necessary to achieve the individual’s
employment outcome. Buchanan v. Ives, 793 F. Supp. 361, 366 (D. Me.1991) (“Although
the client must be given every opportunity to participate in the decision-making, the
rehabilitation counselor must make the final decision on eligibility and the scope of services
provided.”).
Even if I assume that defendants did not give plaintiff an adequate opportunity to
explain her objections before they adopted the new plan, she has not identified any harm

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that she suffered as a result or a remedy that she would be entitled to receive. The most
obvious remedy would be to require defendants to reconsider plaintiff’s plan after giving her
another opportunity to explain her needs. However, plaintiff has already received that
opportunity in the form of an administrative hearing before the Wisconsin Division of
Hearings and Appeals. Dkt. #29-4. Plaintiff does not argue that she was precluded from
raising any issue she wished to raise before the administrative law judge.

Thus, any

procedural error has been cured.
As for money damages, it seems unlikely that they are available.

Section

722(c)(5)(J)(ii)(III) authorizes a district court to “grant such relief as the court determines
to be appropriate,” but the word “appropriate” may be too vague to include an award of
money damages against a state agency or its employees acting in their official capacity.
Sossamon v. Texas, 563 U.S. 277 (2011) (phrase “appropriate relief” in Religious Land Use
and Institutionalized Persons Act is not sufficiently clear to justify award of money damages
against state). Some courts have held that a plaintiff bringing a claim under § 722 is entitled
to “equitable reimbursement” for the expenses that the state should have paid for, e.g.,
Millay, 986 F. Supp. 2d at 76, but I have concluded that defendants did not violate the
Rehabilitation Act by removing the services in dispute from plaintiff’s plan, so that would
not be an appropriate remedy. Accordingly, I will grant defendants’ summary judgment
motion as to this claim as well.

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E. Terminating Services Pending Appeal
Throughout her summary judgment brief, plaintiff argues multiple times that
defendants violated her rights by removing services from her individualized plan for
employment while an administrative appeal was pending. Presumably, plaintiff means to
rely on 29 U.S.C. § 722(c)(7):
Unless the individual with a disability so requests, or, in an appropriate case,
the individual's representative, so requests, pending a decision by a mediator,
hearing officer, or reviewing officer under this subsection, the designated State
unit shall not institute a suspension, reduction, or termination of services
being provided for the individual, including evaluation and assessment services
and plan development, unless such services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of the
individual, or the individual's representative.
I did not allow plaintiff to proceed on this claim and she did not seek reconsideration
of that decision. However, a review of plaintiff’s complaint reveals that she included an
allegation that “there [was] an appeal process tak[ing] place” when defendants removed the
services at issue and that “no services are to be removed, terminated or reduce[d] during an
appeal.” Dkt. #1.
Even if I consider the merits of the claim, it fails for a simple reason. Plaintiff does
not cite any evidence that defendants denied her any services that she needed while the
appeal was pending. First, it is undisputed that the department agreed to pay for the car
repair that plaintiff requested at the time. Further, as noted above, plaintiff does not
identify any work clothes that she needed at the time. Accordingly, I see no violation of §
722(c)(7).

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ORDER
IT IS ORDERED that
1. Plaintiff Patricia Williams’s “motion to reply,” dkt. #41, is construed as a motion
for leave to file untimely responses to the proposed findings of fact filed by defendants
Wisconsin Department of Workforce Development, Nicholas Lampone, Delori Newton and
Enid Glenn and the motion is GRANTED.
2. Plaintiff’s “motion to dismiss defendants summary judgment,” dkt. #37, “motion
for leave to file sur-reply memorandum,” dkt. #45, and “memorandum and motion for
consolidation of both cases & add other defendants,” dkt. #46, are DENIED.
3. Defendants’ motion for summary judgment, dkt. #24, is GRANTED.
4. The clerk of court is directed to enter judgment in favor of defendants and close
this case.
Entered this 5th day of May, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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