McMannes, Debra v. Department of Workforce Development
Filing
34
OPINION and ORDER granting 13 Motion for Summary Judgment. Signed by District Judge James D. Peterson on 1/3/2019. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DEBRA McMANNES,
Plaintiff,
v.
OPINION and ORDER
WISCONSIN DEPARTMENT OF WORKFORCE
DEVELOPMENT,
17-cv-758-jdp
Defendant.
Plaintiff Debra McMannes worked as an auditor for defendant Wisconsin Department
of Workforce Development from 1992 until 2015, when the department terminated her.
McMannes contends that the department violated the Rehabilitation Act and the Americans
with Disabilities Act by failing to provide an accommodation that would allow her to continue
working despite a back injury. The department has filed a motion for summary judgment,
Dkt. 13, which is ready for review.
There is no dispute that McMannes could not perform her job without an
accommodation at the time she was terminated. And the department attempted to
accommodate McMannes for more than a year after she was injured, first by allowing her to
work a reduced schedule and then by searching for a permanent part-time position for her.
Under the circumstances of this case, that was all the department was required to do. Because
the additional accommodations McMannes proposed were either unreasonable or ineffective
as a matter of law, the department is entitled to summary judgment.
UNDISPUTED FACTS
McMannes was an “auditor advanced trainer” for the department in the division of
unemployment insurance. As part of that job, McMannes was required each year to complete
between 60 and 84 field audit assignments of employers. McMannes’s position, like all auditor
positions within the department, was full time.
In October 2012, McMannes injured her back while traveling for work. She had to wear
a full body brace for 10 months and was on medical leave until June 2013. When she returned
to work, she was restricted to 12 hours a week. In August 2013, McMannes’s doctor allowed
her to work 18 hours a week. In October 2013, the doctor raised the restriction to 20 hours a
week. In May 2014, McMannes’s doctor concluded that she was subject to a permanent work
restriction of no more than 18 hours a week.
In July 2014, another doctor gave McMannes an “independent medical exam” as part
of her claim for workers compensation. That doctor spent 20 minutes with McMannes,
“poked” her once, and had difficulty communicating with her because of a “language barrier.”
Dkt. 30, ¶ 32. The doctor determined that McMannes could return to work full time. (The
parties do not explain the basis for the doctor’s opinion.) Despite that opinion, McMannes
received workers compensation for her injury.
On October 1, 2014, the department informed McMannes that it would not permit her
to continue working reduced hours in her current position, but it would work with her over the
next 60 days to find another part-time position for her. The department did look for a part-time
position for McMannes but did not find one.
On October 30, 2014, McMannes told the department that she was considering
whether to go against the wishes of her doctor and return to work full time. In response, the
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department stated that it could not increase McMannes’s hours because her own physician had
concluded that she was not capable of working more. But the department invited McMannes
to provide “any new medical restrictions” that she received from her doctor. Dkt. 16-3.
From June 2013 to February 2015, the department allowed McMannes to work part
time to accommodate her work restriction. During that time, Kenneth DeLisle (McMannes’s
supervisor) was completing more of McMannes’s audits. In 2014, McMannes completed 25
audits, down from 148 audits in 2011 and 133 audits in 2012. When the department was
unable to find another part-time position for McMannes, the department terminated her in
February 2015 because she was unable to work full time.
ANALYSIS
A. Overview of the claim
Both the Americans with Disabilities Act and the Rehabilitation Act prohibit
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). Discrimination includes the failure to provide
a “reasonable accommodation.” Bellino v. Peters, 530 F.3d 543, 548 (7th Cir. 2008). McMannes
contends in this case that the department discriminated against her by terminating her because
of her disability rather than giving her a reasonable accommodation.
Although the language of the statutes is not identical, courts have construed the statutes
as applying the same substantive standards and have applied case law interpreting one statute
to the other statute. Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013); Hafermann
v. Wisconsin Dep’t of Corr., No. 14-cv-615-bbc, 2016 WL 206484, at *3 (W.D. Wis. Jan. 15,
2016). One potential difference between the statutes is that a state may be entitled to sovereign
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immunity for claims under the ADA but not the Rehabilitation Act because sovereign
immunity under the Rehabilitation Act is waived. Amundson ex rel. Amundson v. Wisconsin Dep’t
of Health Servs., 721 F.3d 871, 872 (7th Cir. 2013). But when a plaintiff is bringing a claim
under both statutes, the Court of Appeals for the Seventh Circuit has declined to consider the
scope of a state agency’s sovereign immunity to employment claims under the ADA. E.g.,
Amundson, 721 F.3d at 873; Jaros v. Illinois Dept. of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012).
This is because “the Rehabilitation Act by itself affords plaintiffs any relief to which they may
be entitled,” so “claims under the ADA become academic.” Amundson, 721 F.3d at 873. For the
same reason, it is unnecessary to consider whether the department is entitled to sovereign
immunity under the ADA in this case.
The department does not deny that McMannes’s back injury is a disability within the
meaning of the Rehabilitation Act or that it terminated her because of that disability. Instead,
the department seeks summary judgment on three closely-related grounds: (1) McMannes is
not a “qualified individual” because she cannot perform all the “essential functions” of her job,
42 U.S.C. § 12111(8); (2) the accommodations McMannes requested are not reasonable; and
(3) providing the requested accommodations would have imposed an “undue hardship” on the
department, 42 U.S.C. § 12112(5)(A)(b). McMannes has the burden of proof on the first two
issues. Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 863 (7th Cir. 2005); Basith v. Cook
Cty., 241 F.3d 919, 931 (7th Cir. 2001). If she meets that burden, the department must show
that the accommodation would have caused an undue hardship. Kauffman v. Petersen Health
Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014). Because the court concludes that
McMannes has failed as a matter of law to show that she is a qualified individual and was
requesting reasonable accommodations, the court need not decide the issue of hardship.
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B. Ability to perform essential functions with a reasonable accommodation
In the context of this case, the questions whether McMannes was qualified and whether
her requested accommodations were reasonable collapse into essentially one inquiry. A person
is “qualified” if she can perform the “essential functions” of the job at issue, with or without a
“reasonable accommodation.” 42 U.S.C. § 12111(8). So an accommodation is not reasonable
if it would require the employer to eliminate an essential function of the job. Stern v. St.
Anthony’s Health Ctr., 788 F.3d 276, 289–90 (7th Cir. 2015); Taylor-Novotny v. Health Alliance
Med. Plans, Inc., 772 F.3d 478, 489–90 (7th Cir. 2014); Miller v. Illinois Dep’t of Transp. 643
F.3d 190, 198–200 (7th Cir. 2011). The primary question raised by the department’s motion
is whether the accommodations McMannes requested were unreasonable because they would
have eliminated an essential function of her job.
It is undisputed that McMannes was unable to work full-time at the time that she was
terminated and that was the reason the department terminated her. But she identifies three
potential accommodations that the department could have offered to allow her to continue
working: (1) allow her to continue working part-time in a full-time position (2) split her
full-time position into two part-time positions so that she could fill one of those positions and
someone else could fill the other position; and (3) allow her to transition back to full-time work
slowly. The court will consider each proposed accommodation in turn.
1. Allowing McMannes to continue working part time in the same position
The first requested accommodation does not require extended discussion. The Court of
Appeals for the Seventh Circuit has already held that the ability to work full time is an essential
function of a full-time job, DeVito v. Chicago Park Dist., 270 F.3d 532, 534 (7th Cir. 2001), so
McMannes’s request to work part time in her full-time job is not a reasonable accommodation.
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See also Taylor-Novotny, 772 F.3d at 489–90 (“A plaintiff whose disability prevents her from
coming to work regularly cannot perform the essential functions of her job, and thus cannot be
a qualified individual for ADA purposes.”).
And even if working part-time could be a reasonable accommodation for an employee
who could perform the same work in a fraction of the time, that was not the situation in this
case. It is undisputed that one of the essential functions of McMannes’s job was to complete
between 60 and 84 audits each year and that McMannes was unable to complete anywhere
near that amount while she was working part time. Dkt. 30, ¶¶ 8, 46, and 49. McMannes
identifies no reason that she would have been more productive in the future, which means that
other employees would be required to make up the difference. The Rehabilitation Act does not
require that kind of accommodation. Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 290–91
(7th Cir. 2015) (“To have another employee perform a position’s essential function . . . is not
a reasonable accommodation.” (internal quotations and alterations omitted)). See also
Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 20 (1st Cir. 1998) (ADA does not require employer
to reallocate job duties to other employees so that disabled full-time employee can work part
time).
McMannes says that the department as a whole was still able to meet all of its quotas
and that individual employees’ workloads did not increase year-over-year while she was
working part-time. But she does not deny that her co-workers had to conduct the audits that
she otherwise would have performed. The fact that the department’s overall workload
decreased is simply fortuitous. It does not eliminate McMannes’s requirement to show that she
can perform the essential functions of her job.
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2. Creating two part-time positions
McMannes’s second requested accommodation—creating two part-time positions to
replace her full-time position—is also unreasonable as a matter of law. Again, the court of
appeals has already resolved this issue: an employer’s duty to reassign a disabled employee to
a different position applies only to existing positions that are vacant at the relevant time; the
employer is not required to create new positions for a disabled employee. Gile v. United Airlines,
Inc., 95 F.3d 492, 499 (7th Cir. 1996) (AAn employer may be obligated to reassign a disabled
employee, but only to vacant positions; an employer is not required to . . . create a >new=
position for the disabled employee.”); Fedro v. Reno, 21 F.3d 1391, 1395 (7th Cir. 1994)
(“[T]he Rehabilitation Act has never been interpreted to require an employer to create
alternative employment opportunities for a handicapped employee, or to mandate preferential
treatment of an employee simply because he is handicapped.”). See also Dunderdale v. United
Airlines, Inc., 807 F.3d 849, 856–57 (7th Cir. 2015 (“[T]he employee has to identify that a
vacant position exists at the time the employee requests reassignment to that position.”).
That said, the cases cited above did not involve employees who asked their employer to
convert a full-time position into two part-time positions. Because a reasonable accommodation
“may include . . . part-time or modified work schedules,” 42 U.S.C. § 12111(9)(B), it raises
the question whether employers have a duty under federal disability law to create a new
part-time position if that is what is necessary to allow a disabled employee to continue working.
The Court of Appeals for the Seventh Circuit has not directly addressed this question,
but courts in other circuits have. Those courts have consistently construed § 12111(9)(B) as
requiring employers to consider transferring disabled employees to an existing, vacant part-time
position, but not to create a new part-time job. Green v. BakeMark USA, LLC, 683 F. App’x
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486, 493 (6th Cir. 2017) (“[T]he ADA did not require [the employer] to create a
special, part-time position in order to accommodate [the employee with a disability].”); Lamb
v. Qualex, Inc., 33 F. App’x 49, 59–60 (4th Cir. 2002) (“Where . . . an employer has no part-time
jobs available, a request for part-time employment is not a reasonable one.”); Terrell v. USAir,
132 F.3d 621, 626–27 (11th Cir. 1998) (“[The employer] was not required to create a parttime position for Plaintiff where all part-time positions had already been eliminated from the
company.”). Accord Leighton v. Three Rivers Sch. Dist., 693 F. App’x 662, 663 (9th Cir. 2017);
Parnahay v. United Parcel Serv., Inc., 20 F. App’x 53, 56 (2d Cir. 2001); Treanor v. MCI Telecomm.
Corp., 200 F.3d 570, 575 (8th Cir. 2000). District courts within this circuit have reached the
same conclusion. E.g., Hoffman v. Zurich Fin. Servs., No. 06 C 4980, 2007 WL 4219414, at *5
(N.D. Ill. Nov. 28, 2007). McMannes cites no contrary authority and the court is not aware
of any.
In this case, it is undisputed that all of the department’s auditor positions are full time
and that the department looked for a different part-time position for McMannes but was
unable to find one. McMannes does not point to any vacant part-time position that she believes
the department should have offered her. Under these circumstances, federal disability law did
not require the department to give McMannes a part-time position.
Even if there were some situations in which an employer could be required to create a
part-time position, this would not be one of them. The department would need legislative
approval to create new positions, Dkt. 31, ¶ 24 and Dkt. 30, ¶ 53, so there is no guarantee that
the department could have given McMannes a part-time job, even it wanted to. Regardless, the
department was reluctant to make the request because it would mean creating two positions
without health insurance, making recruitment potentially more difficult over the long term.
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Dkt. 31, ¶ 63. Because legislative approval is needed, the department could not simply convert
the part-time positions back to a full-time position after McMannes retired. This is a reasonable
concern. And McMannes cites no authority for the view that an employer must create two less
desirable positions to accommodate a disability.1
3. Gradual return to full-time work
McMannes’s third requested accommodation was that the department allow her to
transition back to full-time work. A transition period can be a reasonable accommodation under
certain circumstances, particularly when the employee is recovering from a recent injury or
short-term medical condition. E.g., Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 498
(7th Cir. 2000) (“Employees who have experienced serious medical problems often return to
work part-time and increase their hours until they are working full time.”). But by the time
McMannes asked the department for a gradual return to full-time hours, she had already been
working a reduced schedule for more than a year. And she did not propose a timeline regarding
how long it would take to return to a full-time schedule.
Even assuming that a transition could be a reasonable accommodation after so much
time had already passed, McMannes was required to show that her proposed accommodation
would have allowed her to perform the essential functions of her job. Wheatley v. Factory Card
& Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016); Basden v. Professional Transp., Inc., 714 F.3d
1034, 1037–38 (7th Cir. 2013). She failed to do that, either at the time she requested the
accommodation or in response to the department’s motion for summary judgment.
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McMannes says that she identified a former department employee who was qualified and
interested in a part-time position, even without benefits. But whether one person (who was 66
years old at the time, Dkt. 31, ¶ 44) was interested in the position says little about the
department’s ability to attract quality applicants the next time the position became vacant.
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McMannes’s own physician concluded that she was subject to a permanent work
restriction of no more than 18 hours a week. And McMannes does not allege that her symptoms
were improving at the time she requested the accommodation or that she had reason to believe
that her symptoms would improve soon. Even now, McMannes has not adduced evidence that
would support a finding that she could have gradually returned to full-time work. An
employee’s hope of improvement is simply not enough. Stern, 788 F.3d at 289; Basden, 714
F.3d 1034 at 1038.
McMannes’s only support for this accommodation is the opinion of the physician who
examined her for the purpose of her workers compensation claim. But McMannes’s reliance on
that opinion is misplaced, for two reasons. First, by McMannes’s own assertion, the opinion of
the workers compensation doctor was not supported. She admitted in her deposition that the
doctor spent only 20 minutes with her, “poked” her once, and had difficulty communicating
with her because of a “language barrier.” Dkt. 30, ¶ 32. She does not identify the basis of the
doctor’s opinion or otherwise explain why it would have been appropriate for the department
to rely on it.2 Under these circumstances, the doctor’s opinion does not satisfy McMannes’s
burden. See Stern, 788 F.3d at 289 (a doctor’s “speculative, untested suggestions [a]re not
adequate to satisfy th[e] [employee’s] burden” to show that an accommodation will be
effective); Weigel v. Target Stores, 122 F.3d 461, 468B69 (7th Cir. 1997) (statement from doctor
that “there was a good chance” that employee could return to work with treatment was too
conclusory and uninformative to support a conclusion that an accommodation would have
2
McMannes does not allege that the department relied on the opinion of the physician to deny
or reduce her workers compensation benefits, so the court does not consider whether the
department could be estopped in that situation from rejecting the opinion in the context of a
request for an accommodation.
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been successful). The department invited McMannes to provide additional medical evidence,
but she failed to do so, then or now. See Stern, 788 F.3d at 289 (“[The employee] could have
sought additional medical treatment or testing after his discharge, . . . and could have obtained
non speculative, non conclusory evidence that a proposed accommodation or treatment would
have allowed him to adequately perform the essential functions of his job.”).
Second, the workers compensation doctor did not say that McMannes could be
expected to gradually improve over time. Rather, his view was that McMannes simply did not
need an accommodation and could have returned to work full-time as of July 2014, more than
six months before the department terminated McMannes. So, if that doctor’s opinion were
controlling, it would mean that the department could have terminated McMannes in July 2014
unless she agreed to work full time then. The opinion does not support a conclusion that a
gradual return to full-time hours would be a reasonable accommodation.
C. Other arguments
The court will briefly address other arguments that McMannes raises. First, McMannes
cites Wis. Stat. § 230.37(2), which McMannes interprets as requiring the department to give
her a part-time job.3 Even if the court assumes that § 230.37(2) applied to McMannes’s
3
The provision states in part:
When an employee becomes physically or mentally incapable of
or unfit for the efficient and effective performance of the duties
of his or her position by reason of infirmities due to age,
disabilities, or otherwise, the appointing authority shall either
transfer the employee to a position which requires less arduous
duties, if necessary demote the employee, place the employee on
a part-time service basis and at a part-time rate of pay or as a last
resort, dismiss the employee from the service.
Wis. Stat. § 230.37(2).
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situation and that the statute means what she says it does, McMannes is not bringing a claim
under state law, so that statute is simply not relevant. For the same reason, McMannes’s
reliance on Hutchinson Tech., Inc. v. Labor & Indus. Review Comm’n, 2004 WI 90, ¶ 5, 273 Wis.
2d 394, 682 N.W.2d 343, a decision interpreting the Wisconsin Fair Employment Act, is also
misplaced.4
Second, McMannes devotes a substantial portion of her brief to challenging the
testimony of Thomas McHugh, the director of the bureau of tax and accounting, who said that
the department would “lose” its full-time position if it allowed McMannes to continue working
part time. Dkt. 10 (McHugh Dep. 22:17–25). McHugh didn’t explain what he meant by that,
but it doesn’t matter. As explained above, federal disability law did not require the department
to either continue allowing McMannes to work part time in a full-time position or to create a
new part-time position for her. So even if McMannes is correct that the department could have
allowed her to continue working part time without losing a full-time position, her claim still
fails.
Third, McMannes cites Sturz v. Wisconsin Dep’t of Corr., 642 F. Supp. 2d 881 (W.D.
Wis. 2009), throughout her brief and proposed findings of fact, but that case does not support
her claim. In Sturz, the court considered the reasonableness of several accommodations
proposed by an employee who suffered from a degenerative joint disease. Most of the proposed
accommodations have nothing to do with this case (an electric door, working from home, better
maintenance of the parking lot). The court did deny summary judgment on the question
4
Regardless, the accommodation at issue in Hutchinson was allowing the employee to work 10,
eight-hour shifts over the course of a two-week pay period rather than seven, 12-hour shifts,
Hutchinson, 2004 WI 90, ¶ 5, so the case would not be instructive even if it were controlling
precedent.
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whether the employee was entitled to a reduced schedule, id. at 888–89, but this was only
because the employer failed to raise the issue in its opening brief. The court did not hold that
allowing a full-time employee to work part time indefinitely is a reasonable accommodation.
D. Conclusion
There is no dispute that McMannes was a good employee for the department for many
years. And it is certainly unfortunate that she became disabled as a result of an injury she
sustained while on the job. But the reason an employee is disabled is not relevant under the
ADA or the Rehabilitation Act. The question is whether the employee can continue performing
the essential functions of her job, with or without a reasonable accommodation. The
department’s efforts to accommodate McMannes—allowing her to work part time for more
than a year and looking for another job for her—were reasonable. Because the other
accommodations McMannes requested were either unreasonable or ineffective, the department
is entitled to summary judgment.
ORDER
IT IS ORDERED that the motion for summary judgment filed by defendant Wisconsin
Department of Workforce Development, Dkt. 13, is GRANTED. The clerk of court is directed
to enter judgment in the department’s favor and close this case.
Entered January 3, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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