Joyce Whitaker v. Milwaukee County, Wisconsin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3735

JOYCE WHITAKER,

Plaintiff-Appellant,

v.

MILWAUKEE COUNTY, WISCONSIN,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:12-cv-01006-JPS — J. P. Stadtmueller, Judge.

____________________

ARGUED APRIL 15, 2014 — DECIDED DATE NOVEMBER 25, 2014

____________________

Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,

District Judge. *

RIPPLE, Circuit Judge. Joyce Whitaker brought this action

against her former employer, Milwaukee County, alleging

that she was discriminated against in violation of the

Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C.

* The Honorable Amy J. St. Eve, of the United States District Court

for the Northern District of Illinois, sitting by designation.

2 No. 13-3735

§ 12101 et seq. She specifically alleged that her employer had

failed to accommodate her disability by refusing to extend

her period of medical leave, refusing to transfer her to

another position, and then terminating her for reasons

related to her disability. Milwaukee County (the “County”)

moved for summary judgment, which the district court

granted. Ms. Whitaker now appeals. She challenges the

district court’s conclusion that her complaint impermissibly

went beyond the scope of her EEOC charge and that

Milwaukee County was not her “employer” under the

statute.

We affirm the judgment of the district court. We

conclude that, although Milwaukee County was Ms.

Whitaker’s official employer and was responsible for her

compensation, it had no involvement in the principal

decisions that she claims violated the statute and no

authority to override those decisions, made by the State of

Wisconsin’s Department of Health Services personnel.

Accordingly, the County cannot be held liable under the

ADA for those decisions. Because the district court’s

judgment in favor of the County on the termination and

denial of accommodation claims must be upheld on this

basis, we need not consider whether that court erred in

determining the scope of the charge as it concerns State

conduct. With respect to whether the County is liable for any

of its own actions, we hold Ms. Whitaker’s allegations on

these matters are outside the scope of her EEOC charge, and,

therefore, we cannot consider them. We therefore affirm the

district court’s grant of summary judgment to Milwaukee

County.

No. 13-3735 3

I

BACKGROUND

A.

Beginning in 2001, Ms. Whitaker worked as a corrections

officer for the County. In 2005, she sustained a work-related

injury to her back and subsequently was diagnosed with

degenerative lumbar disk disease and symptoms of chronic

diskogenic low back pain and sciatica. As a result of these

back conditions, she has physician-imposed permanent

work restrictions and substantial limitations in a number of

tasks, including sitting, standing, and walking. Through the

County’s employment relocation program, Ms. Whitaker

was hired in 2006 as an Energy Assistance Specialist as an

accommodation for her back disability. Later, in 2008,

Ms. Whitaker became an Economic Support Specialist in the

County’s income maintenance (i.e., public benefits) program,

where she continued until her termination in 2010.

In 2009, Wisconsin enacted a statute that directed the

State’s Department of Health Services (“DHS”) to establish a

unit to administer public assistance programs in Milwaukee

County. See 2009 Wisconsin Act 15, § 22 (codified at Wis.

Stat. § 49.825). The County previously had administered

those functions through the unit in which Ms. Whitaker

worked. Following the transition to State management,

Ms. Whitaker remained an employee of the County, but

worked in the DHS unit, now called Milwaukee County

Enrollment Services (“MilES”). She retained her County

badge and her membership (with seniority) in the union of

County employees. She was compensated and received

benefits from the County. This arrangement conformed to

4 No. 13-3735

the statute transferring administration to DHS. See Wis. Stat.

§ 49.825(3).

All of Ms. Whitaker’s supervisors, however, were

employees of Wisconsin DHS, as required by the statute, and

they managed the day-to-day affairs of the office with no

input from County officials. 1 See id. § 49.825(3)(a). Her DHS

supervisors had “the authority to hire, transfer, suspend, lay

off, recall, promote, discharge, assign, reward, discipline,

and adjust grievances with respect to, and state supervisory

employees may supervise, county employees performing

services … for the unit.” Id. § 49.825(3)(b)(1). DHS employees

also administered the leave program and had authority to

resolve disputes with the applicable union. 2 The transition

began in May 2009, and the State had assumed full

responsibility for the program by January 1, 2010. Ms.

Whitaker does not allege that any County employees had

involvement in any adverse employment actions taken with

respect to her once the transfer to DHS administration was

complete.

During her employment—both before and after the

transition to DHS administration—Ms. Whitaker

complained that at least one of her supervisors, MilES

Deputy Director Vanessa Robertson, had ignored regularly

her permanent work restrictions; 3 Ms. Whitaker, however,

1 Supervisory employees under the previous County regime

transitioned to State DHS employees with the transfer of administration.

2 In addition to the dictates of the statute, the status of the workers

vis-à-vis the County and State was memorialized in a memorandum of

understanding between the County’s union and the State in 2009.

3 See, e.g., R.43-10 at 37–40.

No. 13-3735 5

did not file an EEOC complaint. She did request and receive

a work accommodation in January 2010 from a DHS

compliance officer relating to her ability to sit for only short

periods. Six months later, in June 2010, Nicole Teasley, a

human resources specialist for DHS, approved a request for

intermittent leave under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601–54.

On August 27, 2010, Ms. Whitaker aggravated her

existing back disability. She then requested continuous

FMLA leave, which also was approved in August by Teasley

for an initial period of two weeks. One day before its

expiration, Ms. Whitaker again requested continuous leave

under the FMLA, this time citing both her own limitations

and a need to provide care for her father. Teasley again

approved the request, authorizing leave from September 8

through October 18. Teasley’s letter noted that Ms.

Whitaker’s FMLA leave would be exhausted on October 19,

2010, and that she would then have an opportunity under

her employment contract to request a leave of absence

without pay for up to thirty days. On October 18, 2010, Ms.

Whitaker forwarded to Teasley a request for a leave of

absence, again citing her own condition and her need to care

for her father; she requested a return-to-work date of

December 28, 2010. On October 25, 2010, Teasley approved

in part and denied in part Ms. Whitaker’s request, allowing a

contractual leave of absence only through November 5, 2010.

A separate letter of the same date from Deputy Director

Robertson reiterated that FMLA leave was exhausted and

stated that Ms. Whitaker was expected to return to work on

6 No. 13-3735

November 8, 2010, and that, if she did not return, DHS

would “begin the process for medical separation.” 4

Ms. Whitaker did not return to work as scheduled. Her

physician sent FMLA medical certifications on three

occasions extending her need for medical leave first to mid-

November, then mid-December, then mid-January 2011. In

the meantime, however, by further letter dated November

15, 2010, Robertson provided Ms. Whitaker with a notice of

intent to terminate her for medical reasons and explained the

state statutory authority for termination of an employee who

has exhausted available leave and remained unable to return

to work. It also noted that employees who were medically

separated would be referred to the County’s Job

Accommodations Coordinator to seek an alternative

placement during a six-month leave of absence. 5 A County

human resources representative was copied on the

correspondence. 6 The letter also set a meeting on November

18th to discuss the proposed action. Ms. Whitaker attended

the meeting along with a union representative, Teasley, and

Robertson, and she confirmed that she was unable to return

to work. DHS representatives reiterated their intent to

terminate her. A confirmation letter from another DHS

employee recited that Ms. Whitaker was “terminated

4 Id. at 15.

5 Ms. Whitaker apparently was not referred to this program, and the

program was not notified of her medical separation. According to the

Coordinator, the County had no authority to transfer employees through

this program once the transition to DHS supervision of MilES was

complete. See R.46 at 2.

6 See R.43-10 at 14.

No. 13-3735 7

effective November 30, 2010 for medical reasons,” and the

County’s human resources director received a copy. 7

Meanwhile, on November 3, 2010—prior to receiving

Robertson’s notice of intent to terminate—Ms. Whitaker had

filed a charge with the EEOC naming both Milwaukee

County and Wisconsin DHS as employers. The charge

stated: “I believe that I have been discharged on the basis of

my disability in violation of” the ADA.8 It gave October 25,

2010—the date on which she was informed that her FMLA

leave was exhausted and that she was required to return on

November 8—as the only date of discrimination. The box

available for “continuing action” was not selected. The

EEOC issued a right to sue letter on July 26, 2012, and sent a

dismissal letter on May 8, 2013, in which it stated that it was

unable to conclude that there had been a violation of the

statutes.

B.

Ms. Whitaker brought this action in the district court and

initially named both Milwaukee County and Wisconsin DHS

as defendants. Wisconsin DHS then moved successfully for

its dismissal from the action on the basis of Eleventh

Amendment immunity. Ms. Whitaker filed an amended

complaint, and Milwaukee County, now the sole defendant,

moved for summary judgment on March 28, 2013. On

November 6, 2013, with trial set for February, Ms. Whitaker

moved for leave to file a second amended complaint. On

7 R.64-1 at 68.

8 Id. at 54.

8 No. 13-3735

November 12, 2013, in a single order, the district court

denied Ms. Whitaker’s motion for leave and granted the

County’s motion for summary judgment.

With respect to the motion to file a second amended

complaint, Ms. Whitaker principally sought to rejoin

Wisconsin DHS as a defendant and to add a claim under the

Rehabilitation Act. The district court’s decision denying

leave concluded that granting the motion would unduly

delay the proceedings and prejudice the County. 9 It noted

that the matter had been pending for more than a year and

that no explanation had been provided for the delay.10

Because the operative facts were all known at the time of the

first amendment, the court concluded that the only

explanation was that the additional claim was “belatedly-

identified.” 11 It also held that adding DHS and a new theory

of liability would prejudice Milwaukee County, which had

“answered, engaged in discovery, and fully briefed a motion

for summary judgment predicated upon the amended

complaint.” 12 In the district court’s view, if the amendment

were allowed, “Milwaukee County would have to reassess

its entire strategy in this matter, laying waste to significant

efforts made in its defense.” 13

9 R.57 at 7 (“Whitaker’s motion was filed much too late in the

proceedings….”).

10The record contains no explanation as to why a Rehabilitation Act

claim was not contained in the initial complaint.

11 Id.

12 Id. at 8.

13 Id. The district court’s decision on this point is not before us on

this appeal, and we express no view with respect to the matter.

No. 13-3735 9

Having determined that Ms. Whitaker could proceed

only against the County under the ADA, the court then

turned to the County’s motion for summary judgment. It

noted that Ms. Whitaker’s amended complaint made three

claims related to a failure to accommodate as well as one

claim for unlawful termination, while her EEOC charge

referenced only her termination. It ruled that the additional

claims were not “like or reasonably related to”14 the claim

included within the charge, finding the case analogous to

Green v. National Steel Corp., Midwest Division, 197 F.3d 894

(7th Cir. 1999). Accordingly, the district court dismissed as

unexhausted all of the failure-to-accommodate claims.

Turning to the remaining termination claim, the district

court held that Ms. Whitaker’s claims against the County as

a “joint employer” with DHS “fail[ed] as a matter of

procedure and merit.” 15 Procedurally, the court held that

Ms. Whitaker could not argue a joint employer theory

because, in her pleadings, she had alleged an agency

relationship between the County and Wisconsin DHS. The

district court viewed this argument as an unacceptable

attempt to amend the pleadings through summary judgment

argument and raise a new theory of liability in opposition

briefing to summary judgment. Because this claim “was not

timely raised,” the County “did not have adequate notice” of

the theory, and the court declined to “consider this

argument in its analysis of Milwaukee County’s motion for

summary judgment.” 16

14 Id. at 9 (internal quotation marks omitted).

15 Id. at 11.

16 Id. at 13–14.

10 No. 13-3735

The court then held that Milwaukee County was not

properly liable for allegedly discriminatory acts performed

by DHS. “The undisputed facts show that Milwaukee

County did not act with regard to Whitaker’s termination;

rather, the facts demonstrate the direct opposite, namely that

Milwaukee County had no power to act.” 17 The court

therefore entered summary judgment for the County.

Ms. Whitaker now appeals. She challenges the district

court’s determinations that (1) it would not consider a joint

employer theory of liability on the merits; and (2) her failure-

to-accommodate claims are outside the scope of her EEOC

charge.

II

DISCUSSION

A.

Ms. Whitaker’s amended complaint includes several

allegations that there was an agency relationship between

the County and Wisconsin DHS such that the County could

be liable for discriminatory acts by DHS employees.

Ms. Whitaker apparently abandoned this theory at some

point before summary judgment, where she argued, in

opposition to the County’s motion, that the County and

Wisconsin DHS were “joint employers.” The district court

rejected the joint employer argument on the basis that it was

raised inappropriately in response to summary judgment

and was an attempt to amend the pleadings. The court relied

17 Id. at 16.

No. 13-3735 11

principally on Shanahan v. City of Chicago, 82 F.3d 776 (7th

Cir. 1996), and Abuelyaman v. Illinois State University, 667 F.3d

800 (7th Cir. 2011). The district court viewed these cases as

standing for the principle that a party may neither amend its

pleadings by argument in opposition to summary judgment

nor introduce new theories of liability in opposition to

summary judgment.

We start our own analysis with a review of the principal

cases upon which the district court relied. In Shanahan, the

plaintiff made a First Amendment claim, alleging that he

had been demoted because he had refused to hire political

supporters of the mayor. 82 F.3d at 777. When the

defendants responded at summary judgment that they did

not know the political affiliation of the relevant employees,

the plaintiff responded that it was in fact the employees’

union membership and the union’s support for the mayor

that motivated the action. We determined that the district

court properly denied leave to amend the complaint to add

this allegation when it was raised in response to summary

judgment. Notably, we commented that the plaintiff’s action

was an impermissible attempt to “amend his complaint.” Id.

at 781. The plaintiff had altered radically the factual basis of

his complaint at summary judgment. Similarly, in

Abueleyaman, a professor alleged various forms of

discrimination and retaliation in his complaint. 667 F.3d at

806. In his response to a summary judgment motion, he

added an entirely new factual basis for retaliation not

previously presented. Again, we approved of the district

court’s refusal to consider the new “theory.” Id. at 813–14.

In each case, new and drastic factual allegations of

motivation for the discriminating party’s action were

12 No. 13-3735

proffered at the summary judgment stage. The plaintiff

sought to introduce a new factual basis not previously

presented in the pleadings for a claim. These cases are

compatible with our cases that emphasize that it is factual

allegations, not legal theories, that must be pleaded in a

complaint. In Del Marcelle v. Brown County Corp., 680 F.3d

887 (7th Cir. 2012) (en banc), we stated explicitly that

“plaintiffs are not required to plead legal theories, even in

the new world of pleading that is developing in the wake of

the Supreme Court’s decisions in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

662 (2009).” Del Marcelle, 680 F.3d at 909 (parallel citations

omitted). 18 More recently, the Supreme Court has confirmed

explicitly this principle. Johnson v. City of Shelby, 135 S. Ct.

346, 347 (2014) (per curiam). In the cases relied upon by the

district court, new factual bases for claims or legal claims

were at the center of the analysis.

18See also Alden Mgmt. Servs., Inc. v. Chao, 532 F.3d 578, 582 (7th Cir.

2008) (“Courts don’t hold a party to its first legal theory. One does not

plead law… .”); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078

(7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and

specifying an incorrect theory is not fatal.”).

A plaintiff may, of course, plead herself out of court with factual

allegations that disprove the theory she ultimately pursues, but that did

not occur in this case. Ms. Whitaker made allegations of agency that she

was not able to support with facts at summary judgment, but her

allegations themselves did not provide the County with any

“impenetrable defense” to her claims. See Tamayo v. Blagojevich, 526 F.3d

1074, 1086 (7th Cir. 2008) (“[O]ur pleading rules do not tolerate factual

inconsistencies in a complaint, [but] they do permit inconsistencies in

legal theories.”).

No. 13-3735 13

The situation presented in the present case is

significantly different and, in our view, requires a different

approach. Ms. Whitaker has alleged, from the beginning,

that the relationship of the County and Wisconsin DHS is

such that the County is liable for the actions of the DHS

supervisors who denied her additional leave and terminated

her through medical separation. This fundamental factual

allegation always has been supported by identical facts

about her employment relationship. There is no material

dispute about those facts. Ms. Whitaker did not attempt to

add a new substantive claim or even a new factual theory of

liability; she offered an alternative legal characterization of

the factual relationship between the two governmental

entities, a characterization that she believes supports her

claim of County liability for DHS’s adverse employment

actions. 19 We do not believe that this new characterization

offered any unfair surprise.

19 The County’s response asserts that Ms. Whitaker took a “directly

contrary” position in her complaint and that her attempted change

“surprise[d]” the County unfairly. Appellee’s Br. 6. Indeed, under certain

limited circumstances, we have held that it is appropriate to hold a

plaintiff to an initial legal theory.

With immaterial exceptions, the rules require only the

pleading of a claim…. So there is no burden on the

plaintiff to justify its altering its original theory. Which is

not to say that such an alteration is always permissible. If the

complaint explicitly or implicitly disclaims certain legal

characterizations of the claim, an effort to retract the

disclaimer may come as a surprise to the defendant and

make it more costly or difficult for him to defend, or

may simply protract the lawsuit inexcusably. Or by tacit

agreement of the parties a possible interpretation of the

14 No. 13-3735

In short, the rule that the district court discerned from

our cases is correct but inapplicable, and Ms. Whitaker

should have been permitted to present her “joint employer”

theory. We therefore consider the merits of that argument

here.

B.

The principal question presented in this appeal is

whether the County can be held liable for actions of

Wisconsin DHS that are alleged to violate the ADA. The

ADA creates a cause of action for qualified individuals with

complaint may simply not be pursued—the case may

develop along quite other lines—and an effort to redirect

the case may cause unreasonable delay even if there is

no surprise to the defendant. In either of these cases the

district court can and should hold the plaintiff to his

original theory.

Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir. 1996) (emphasis

added) (citations omitted). In the present case, however, we cannot

accept this view. Ms. Whitaker’s position is not contrary or surprising in

the manner described in the case law; it simply does not stray

sufficiently from her initial position to be rejected on this basis. See, e.g.,

Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428–30 (7th Cir. 1993)

(plaintiff unable to amend claim where prior position supported

favorable treatment by EPA and change to new position in later litigation

would be unfair and contradictory); Johnson v. Methodist Med. Ctr. of Ill.,

10 F.3d 1300, 1304 (7th Cir. 1993) (plaintiff unable to amend to add

allegations that medical negligence was caused in ways not

contemplated by the original complaint, including different actors, at a

late stage in proceedings). Furthermore, the County’s contention that it

was surprised is unpersuasive when the alternate legal basis for liability

is based on the same allegations and the undisputed factual relationship

between the relevant entities.

No. 13-3735 15

a disability where there has been “discriminat[ion]…in

regard to…[the] discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment” by a “covered entity.” 42 U.S.C. §

12112(a). A “covered entity” includes an employer meeting

certain minimum qualifications, see id. § 12111(2), (5)(A), and

it is undisputed that Wisconsin DHS and the County both

meet the minimum statutory qualifications. But in order to

assert her rights under the ADA as an employee, Ms.

Whitaker must establish that she was “employed by” the

employer that she seeks to hold liable. Id. § 12111(4).

It is undisputed that, by virtue of 2009 Wisconsin Act 15,

Ms. Whitaker was retained, as a formal matter, as an

employee of the County. See Wis. Stat. § 49.825(3). She

remained a member of the union of County employees, and

the County remained responsible for the “administrative

tasks related to payroll and benefits” for Ms. Whitaker and

her colleagues. Id. § 49.825(3)(c). Her supervisors, who are

the relevant decisionmakers in the present case, however,

were required by statute to be employees of Wisconsin DHS.

Id. § 49.825(3)(a). Those State employees had the exclusive

“authority to…discharge[]…and…supervise[] county

employees” and controlled the day-to-day activities of staff

who worked for the MilES unit. Id. § 49.825(3)(b)(1).

In light of the complex relationships that sometimes exist

between individuals and the modern entities for which they

work, courts have fashioned a number of tests that

determine when a particular employer may be subject to

liability under the ADA and related civil rights statutes.

Specifically, when more than one entity is potentially

involved in the employment relationship, two prominent

16 No. 13-3735

tests have been applied by various courts to determine who

qualifies as an employer under the statute. One argues that

two nominally distinct entities in fact comprise a “single

employer”; the other acknowledges that two entities are, in

fact, distinct, but concerns whether each exercises sufficient

control over the terms and conditions of employment such

that they are “joint employers,” either of which faces

potential liability under the statute. See, e.g., Knitter v. Corvias

Military Living, LLC, 758 F.3d 1214, 1226–27 (10th Cir. 2014).

Ms. Whitaker focuses on the joint employer test.

The joint employer concept derives from labor law, see,

e.g., DiMucci Constr. Co. v. NLRB, 24 F.3d 949, 953 (7th Cir.

1994) (citing Boire v. Greyhound Corp., 376 U.S. 473 (1964)

(representation case)); it has been employed infrequently in

employment cases in this circuit, see, e.g., Robinson v.

Sappington, 351 F.3d 317, 332 n.9 & 337–39 (7th Cir. 2003)

(noting the possibility that an entity qualified as a joint

employer in Title VII case, but finding it unnecessary to

resolve the question).

In the traditional labor law context, the “joint-employer”

language is designed to identify the business entities that

control the employees’ terms and conditions of employment.

As one of our sister circuits has stated:

The basis of the finding [of a joint employer] is

simply that one employer while contracting in

good faith with an otherwise independent

company, has retained for itself sufficient

control of the terms and conditions of

employment of the employees who are

employed by the other employer. Thus, the

“joint employer” concept recognizes that the

No. 13-3735 17

business entities involved are in fact separate

but that they share or co-determine those

matters governing the essential terms and

conditions of employment.

NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123

(3d Cir. 1982) (emphasis in original) (citation omitted). In the

same context, we have stated that an entity other than the

actual employer may be considered a “joint employer” “only

if it exerted significant control over” the employee. G.

Heileman Brewing Co. v. NLRB, 879 F.2d 1526, 1530 (7th Cir.

1989). “Factors to consider in determining joint employer

status are (1) supervision of employees’ day-to-day

activities; (2) authority to hire or fire employees; (3)

promulgation of work rules and conditions of employment;

(4) issuance of work assignments; and (5) issuance of

operating instructions.” DiMucci Constr. Co., 24 F.3d at 952.

We also have held, however, “that for a joint-employer

relationship to exist, each alleged employer must exercise

control over the working conditions of the employee,

although the ultimate determination will vary depending on

the specific facts of each case.” Moldenhauer v. Tazewell-Pekin

Consol. Commc’ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008)

(emphasis added) (deciding a case under the FMLA, which

includes joint employer regulations promulgated by the

Department of Labor).

We regard reliance on traditional labor law principles to

be an awkward approach to determining Title VII liability.

The issue previously has been put before us, but we have not

employed the labor standards in the manner now urged by

Ms. Whitaker. Robinson v. Sappington, 351 F.3d 317, was a

Title VII case also involving employees divided among the

18 No. 13-3735

state and county and in which the plaintiff alleged joint

employment by the county and the state. Her harasser, a

state court judge, was clearly an employee of the state. She

sued various state officials in their official capacities, and she

also sued the county. In addressing the issue, we noted:

[T]here is at least a preliminary question of

who, or what entity, is the proper defendant

with respect to Ms. Robinson’s Title VII action.

It is only the employee’s employer who may be

held liable under Title VII. We explained in

Williams [v. Banning, 72 F.3d 552, 553 (7th Cir.

1995),] that the term “employer” as used in

Title VII is a statutory expression of traditional

principles of respondeat superior liability. In

the context of a sexual harassment claim, the

employee’s employer usually is that of the

harassing supervisor, and thus it is rational

and consistent with standard agency principles

to impute liability to the employer based on

the actions of the supervisory employee.

In the present case, there is no question that

[the defendants] are employees of the State of

Illinois. As such, any harassment inflicted by

them on lower-level state employees under

their direction can be imputed to the State of

Illinois.

Id. at 332 n.9 (citation omitted). With respect to whether the

defendant county could face liability for the actions of the

state-employed judge, we noted that the plaintiff had put

forward such a claim, but we found it unnecessary to

resolve. Id. at 337–39.

No. 13-3735 19

Some of our sister circuits have held explicitly that

establishing a “joint employer” relationship does not create

liability in the co-employer for actions taken by the other

employer. See Torres-Negrón v. Merck & Co., 488 F.3d 34, 41

n.6 (1st Cir. 2007) (“[J]oint-employer liability does not by

itself implicate vicarious liability.…[A] finding that two

companies are an employee’s ‘joint employers’ only affects

each employer’s liability to the employee for their own

actions, not for each other’s actions….” (emphasis in

original)); see also id. (citing Virgo v. Riviera Beach Assoc., 30

F.3d 1350, 1359–63 (11th Cir. 1994), for the proposition that

agency principles apply to determine liability of each

company, even when a joint employer relationship has been

found); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236,

1244-45 (11th Cir. 1998) (finding no liability, regardless of the

technical outcome of the joint employer inquiry, where the

defendant entity had no involvement in the challenged

employment action). 20

This view finds support in the EEOC’s own Compliance

Manual. The relevant guidance addressing joint

employment relationships suggests that the purpose of

establishing joint employer status is to make an entity other

than the principal employer liable for conduct relating to a

specific employee. Written for the specific context of

temporary employment agencies sending employees to

20 Another circuit explicitly has reserved the question. See Sandoval v.

City of Boulder, Colorado, 388 F.3d 1312, 1324 n.4 (10th Cir. 2004) (“Because

we find no joint employer relationship we need not reach the question of

what the scope of one joint employer’s vicarious liability would be for

actions of its partner in which it did not participate or over which it had

limited or no control.”).

20 No. 13-3735

clients, the guidance specifically addresses whether, when

the firm and client qualify as joint employers, the firm can be

responsible for discriminatory actions taken by the client. It

concludes:

The firm is liable if it participates in the

client’s discrimination. For example, if the firm

honors its client’s request to remove a worker

from a job assignment for a discriminatory

reason and replace him or her with an

individual outside the worker’s protected class,

the firm is liable for the discriminatory

discharge. The firm also is liable if it knew or

should have known about the client’s discrimination

and failed to undertake prompt corrective measures

within its control.

EEOC, No. 915.002, Enforcement Guidance: Application of

EEO Laws to Contingent Workers Placed by Temporary

Employment Agencies and Other Staffing Firms, at 2260

(1997) (emphasis added). We have no reason to depart from

the course set by the other circuits and the view expressed

by the agency charged with the administration of the

statute. 21

21The secondary literature confirms the general purpose of joint

employer liability as bringing another entity under the statute. See

Barbara Lindemann & Paul Grossman, Employment Discrimination Law

1312 (3d ed. 1996) (noting that the joint employer “theory generally is

used to obtain jurisdiction over a company that is unrelated to the

employer-in-fact but which exercises sufficient day-to-day control over a

charging party’s work to be treated as a co-employer of the charging

party”).

No. 13-3735 21

Here, nothing in the record suggests that the County

participated in the alleged discriminatory conduct or failed

to take corrective measures within its control. The use of the

joint-employer device here is an attempt to obtain relief for

alleged State-employee misconduct despite the State’s

immunity under the ADA, see generally Bd. of Trs. of Univ. of

Alabama v. Garrett, 531 U.S. 356, 374 (2001), and despite Ms.

Whitaker’s delayed and unsuccessful attempt to re-add the

State as a defendant with new claims under the

Rehabilitation Act.

C.

Ms. Whitaker also asks that we review the district court’s

decision that her reasonable accommodation claims were

barred because she had failed to raise them in her original

EEOC complaint. We begin by examining the principles that

must govern our decision.

An ADA plaintiff must file a charge with the EEOC

before bringing a court action against an employer. 42 U.S.C.

§ 12117(a) (incorporating multiple sections, including 42

U.S.C. § 2000e-5(e)(1) and (f)(1)). “[A] plaintiff is barred from

raising a claim in the district court that had not been raised

in his or her EEOC charge unless the claim is reasonably

related to one of the EEOC charges and can be expected to

develop from an investigation into the charges actually

raised.” Green, 197 F.3d at 898; see also Rush v. McDonald’s

Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (“An aggrieved

employee may not complain to the EEOC of only certain

instances of discrimination, and then seek judicial relief for

different instances of discrimination.”). We have said that in

22 No. 13-3735

order for claims to be reasonably related to one another,

there must be “a factual relationship between them.” Cheek v.

W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994). This

means that the EEOC charge and the complaint must, at

minimum, “describe the same conduct and implicate the same

individuals.” Id. (emphasis in original). With these principles

in mind, we turn to the situation now before us.

Ms. Whitaker’s charge read:

I have been out on a medical leave of absence

since September 1, 2010. In a letter dated

October 25, 2010 I was notified by Vanessa

Robertson, Deputy Director of MILES, that I

would be terminated if I failed to return to

work by November 8, 2010. I am unable to

return at that time due to medical reasons. I

believe that I have been discharged on the

basis of my disability in violation of Title I of

the Americans with Disabilities Act of 1990.[ 22]

The district court, and the County, rely exclusively on

Green, 197 F.3d 894, in which we stated:

[A] failure to accommodate claim is separate

and distinct from a claim of discriminatory

treatment under the ADA. In fact, the two

types of claims are analyzed differently under

the law. Therefore, they are not like or

reasonably related to one another, and one

cannot expect a failure to accommodate claim

to develop from an investigation into a claim

22 R.64-1 at 54.

No. 13-3735 23

that an employee was terminated because of a

disability.

Id. at 898 (internal citations omitted).

The EEOC, appearing as amicus curiae, suggests, at least

obliquely, that some of the language in these cases is more

rigid than appropriate if that language is to be read as

stating a general proposition of law rather than a

commentary on the factual circumstances in Green. It takes

no issue with our statement in Green that a claim not raised

in an EEOC charge can be raised in the district court only if

that claim “‘is reasonably related to one of the EEOC charges

and can be expected to develop from an investigation into

the charges actually raised.’” 23 In the EEOC’s view, there can

be cases where a discriminatory termination claim can be so

closely related to a reasonable accommodation claim that it

would be appropriate to consider an unstated reasonable

accommodation claim along with a stated discriminatory

discharge claim. In its view, in Green, there was no factual

connection between the discharge for various forms of

employee misconduct and the employee’s requests for

working conditions suitable to her disability. Here, by

contrast, suggests the EEOC, an investigation of the

wrongful termination claim inevitably would address her

requests for an extension for her leave, and the summary

judgment record supports that it did. 24

23 Br. of the EEOC as Amicus Curiae Supporting Appellant at 6

(quoting Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th

Cir. 1999)).

24 See R.64-1 at 55.

24 No. 13-3735

Given our determination, earlier in this opinion, that the

County cannot be held liable for the personnel actions of the

State, this case presents no occasion for us to determine

whether Ms. Whitaker’s accommodation claims concerning

additional leave, denied by State employees, can be

considered even though they were not raised in the EEOC

complaint. Any refinement of our approach to Green must

therefore await a case in which the issue is necessary for

decision. 25

We now turn to Ms. Whitaker’s other accommodation

claim. She points to the DHS letter of November 15, 2010,

informing her of her imminent discharge. In that letter, DHS

recites that, if she is in fact terminated, she would be referred

to Sue Chase, the Job Accommodations Coordinator for

Milwaukee County. According to the letter,

Ms. Chase will work[] with individuals with

severe disabilities to seek alternative civil

service positions in Milwaukee county

governments through an alternative

certification process provided by the DECA

program. Employees who have permanent

medical restrictions are referred to this

program[ and] are placed on a medical leave of

absence for up to six months by the

departments. This period is used by the Job

Accommodation Coordinator to work with

county central Human Resources to locate

placement for the affected staff. If no job

25 We appreciate the EEOC’s assistance in our consideration of this

case.

No. 13-3735 25

placement is possible at the end of the six

months, then the department moves forward

with separation from employment through the

Personnel Review Board.[26]

Ms. Whitaker claims that, because this referral and new

placement never materialized, the County ought to be held

responsible for a failure to accommodate her disability.

Like her claims that DHS should have granted her an

extension of leave, this claim was not raised in her EEOC

charge, but was raised and preserved adequately at each

stage of her federal court litigation. At first glance, this claim

might appear to present the situation to which the EEOC

invites our attention. Here, it might be argued, the offer of

accommodation is inextricably linked to the discharge and

therefore certainly within the expected purview of an EEOC

investigation of the discharge. Several factors militate

against such a characterization. First, we think that the

referral described in the letter contemplated post-termination

assistance to Ms. Whitaker. Second, any failure to make the

referral on the part of DHS is, for the reasons we have

already discussed, not properly before us since DHS is not,

at this point, a party to this litigation. Finally—and most

importantly—the officer of County government responsible

for the administration of this program has stated by

affidavit, submitted in support of summary judgment, that

Ms. Whitaker was not referred to the program and,

furthermore, that, even if she had been referred, the program

had no authority to transfer an employee who was part of

26 R.64-1 at 66–67.

26 No. 13-3735

the MilES program. Ms. Whitaker has not answered

satisfactorily the factual assertions of this affidavit.

Accordingly, we must conclude that the district court

properly granted summary judgment on this claim.

Conclusion

Regardless of whether the State of Wisconsin was a joint

employer of Ms. Whitaker, the County bears no

responsibility for the actions of State employees who

supervised Ms. Whitaker. With respect to the County’s own

actions for allegedly failing to accommodate her disability,

Ms. Whitaker has not fulfilled her administrative exhaustion

requirements, and we therefore do not address her claims.

The judgment of the district court for the County is affirmed.

AFFIRMED