Forman, Todd v. City of Middleton et al
Filing
38
OPINION and ORDER denying 33 plaintiff's motion to alter or amend judgment. Signed by District Judge James D. Peterson on 8/25/22. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TODD FORMAN,
v.
Plaintiff,
CITY OF MIDDLETON and
GURDIP BRAR,
OPINION and ORDER
20-cv-516-jdp
Defendants.
Todd Forman was terminated from his position as IT director for the city of Middleton
after fifteen years on the job. Three years before he was fired, he was diagnosed with severe
depression. Forman brought disability discrimination claims against the city under the
Americans with Disabilities Act (ADA), on grounds that the city failed to accommodate his
depression, retaliated against him for reporting his depression, and created a hostile work
environment. The court granted summary judgment in favor of the city on his claims. Dkt. 31.
On cross-motions for summary judgment, the court concluded that Forman’s failure-toaccommodate claim failed because Forman did not actually request accommodations, so he
couldn’t show that the city was required to initiate a discussion about accommodations or
provide them. Id. Forman now moves for relief from judgment on his failure-to-accommodate
claim under Federal Rule of Civil Procedure 59(e). Dkt. 33. But he has not provided any reason
that would justify relief, so the motion will be denied.
Rule 59(e) permits a court to alter or amend a judgment if the movant identifies a
manifest error of law or fact or presents newly discovered evidence. Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000). Relief may be warranted when a court patently
misunderstands a party, made a decision outside the issues presented, or made an error not of
reasoning but of apprehension. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir.1990) (citation omitted). But Rule 59(e) is not a vehicle for rehashing previously
rejected motions or arguing matters that could have or should been heard at summary
judgment. Id.; Wagner v. John Glasspiegel Co., 983 F.2d 1074 (7th Cir. 1993).
Forman contends that the court committed manifest errors of law and fact because it:
(1) granted summary judgment to the city on an “outside issue not argued by the parties;” and
(2) overlooked evidence establishing that Forman’s depression made him unable to
communicate his desire for accommodations. Dkt. 34, at 1–2.
To prevail on a failure-to-accommodate claim under the ADA, a plaintiff must show
that: (1) he is a qualified individual with a disability; (2) the city was aware of his disability;
and (3) the city failed to provide a reasonable accommodation. Bunn v. Khoury Enterprises, Inc.,
753 F.3d 676, 682 (7th Cir. 2014). When an employee asks for an accommodation because of
a disability, the employer is required to engage in an “interactive process” to determine the
severity of the disability and the appropriate accommodations. Kauffman v. Petersen Health Care
VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014). Generally, it is the employee’s duty to trigger
that process by notifying the employer that he has a disability and desires an accommodation.
E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 803 (7th Cir. 2005). But when an employee
has a mental health disability, “the employer has to meet the employee half-way, and if it
appears that the employee may need an accommodation but doesn’t know how to ask for it,
the employer should do what it can to help.” Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d
1281, 1285 (7th Cir. 1996).
At summary judgment, it was undisputed that Forman did not explicitly ask the city for
reasonable accommodations for his depression. The court concluded that even though Forman
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had a mental health disability, the duty in Bultemeyer to initiate the interactive process absent
a clear accommodations request did not apply to the city. Bultemeyer does not establish a
blanket requirement on an employer to initiate reasonable accommodations discussions any
time it learns that an employee has a mental health diagnosis. The court explained that
Bultemeyer only applies when an employee with a mental health issue has difficulty
communicating with his employer about his situation. Id. The employee in Bultemeyer had
severe bipolar disorder, anxiety attacks, and schizophrenia, which gave him irrational fears that
diminished his capacity to ask for help. Id. at 1285–86. Forman’s evidence did not establish
that his depression made him unable to communicate his needs, so he did not show any failure
to accommodate.
Forman contends that the court should not have granted summary judgment to the city
on this basis because his communication abilities were an “outside issue not argued by the
parties.” Dkt. 34, at 1−2. He is correct that the parties’ summary judgment briefs primarily
focused on whether Forman was a qualified individual with a disability. And the city didn’t
move for summary judgment on each individual element of Forman’s failure-to-accommodate
claim. So at least in connection to the city’s summary judgment motion, the parties did not
discuss the city’s duty to engage in the interactive process with much granularity.
But Forman raised the relevant issues in his own summary judgment motion. Dkt. 10.
He devoted three pages of his brief to argument that he triggered the city’s obligation to initiate
in the interactive process, yet the city failed to discuss reasonable accommodations with him.
Dkt. 10, 23−26. He cited Bultemeyer and Walters v. Mayo Clinic Health Sys.-EAU Claire Hosp.,
Inc., 998 F. Supp. 2d 750, 764 (W.D. Wis. 2014) for the idea that mental health disabilities
“impose a heightened duty on employers to begin the interactive process.” Dkt. 10, at 24. He
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quoted Bultemeyer’s statement that an employer should initiate the process “if it appears that
the employee may need an accommodation but doesn’t know how to ask for it.” Id. And he
argued why Bultemeyer and Walters applied to his case. Id. Forman placed the issue of his ability
to communicate on the table. The court will not grant reconsideration on this ground.
Forman also contends that the court disregarded undisputed evidence that his
depression handicapped his ability to communicate his needs to the city. He cites the following
evidence:
•
A statement by Forman’s provider on his FMLA application that Forman was
unable to “manage current symptoms to maintain effective organization,
performance, [and] communication” Dkt. 12-3.
•
Forman’s declaration statement that his depression interfered with his ability to
communicate, among other things. Dkt. 25, ¶ 6.
•
Forman’s declaration statement that his depression made him feel “anxious
when interacting with co-workers” and that “[d]uring confrontations with
others, my voice shakes and elevates, I sweat, and I find it difficult to interact
and express myself.” Dkt. 25, ¶ 9.
•
Forman’s medical record relaying his statement to a provider that he has doubts,
indecision, and rumination, and “zero motivation to do the things [he] should
do.” Dkt. 25-4.
Forman also contends that in considering his communication difficulties, the court
failed to take three events into account: (1) the city rejected his request to maintain his office
location; (2) the city declined to instruct another employee to stop harassing him; and
(3) Forman told his supervisor that he was depressed but did not receive any help. Forman says
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that these instances show that it would have been futile to request accommodations, a
perception that contributed to his inability to communicate his needs. Bultemeyer, 100 F.3d at
1285 (7th Cir. 1996) (assessment of whether an employee is capable of requesting
accommodations may include whether “he may have thought it was futile to ask”).
But Forman is making new arguments and citing new evidence that could have been
presented to the court at summary judgment, which Rule 59(e) does not allow. Moro v. Shell
Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Even if Forman he had made these contentions at
summary judgment, the outcome of his claim would be the same. The evidence he cites shows
that his depression affected his communication abilities only on the most general level. The
statements provide no detail about the specific communication tasks that Forman had
difficulty with, and they do not support the conclusion that Forman’s depression prevented
him from requesting accommodations from the city. Similarly, the events that Forman
discusses do not support the conclusion that the city would have refused to grant him
accommodations for his depression if he had directly asked for them. Forman’s motion for
relief under Rule 59(e) will be denied.
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ORDER
IT IS ORDERED that:
1. Plaintiff Todd Forman’s motion to alter or amend a judgment, Dkt. 33, is
DENIED.
Entered August 25, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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