Whitaker v. Wisconsin Department of Health Services

In the

United States Court of Appeals

For the Seventh Circuit

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No. 16-1807

JOYCE WHITAKER,

Plaintiff-Appellant,

v.

WISCONSIN DEPARTMENT OF HEALTH SERVICES,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:13-cv-00938-LA — Lynn Adelman, Judge.

____________________

ARGUED NOVEMBER 29, 2016 — DECIDED FEBRUARY 27, 2017

____________________

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff Joyce Whitaker worked

for the Wisconsin Department of Health Services. The Depart-

ment fired Whitaker when she did not return to work after

exhausting her unpaid statutory and contractual medical

leave. Whitaker sued, claiming that the Department failed to

accommodate her disability and terminated her employment

in violation of the Rehabilitation Act. The district court

granted summary judgment in favor of the Department on

2 No. 16-1807

several grounds. We agree with the district court that Whita-

ker failed to establish that she was an “otherwise qualified”

employee, as required by the Rehabilitation Act, and we af-

firm the grant of summary judgment.

I. Factual and Procedural Background

A. Employment History and Disability Accommodation

On appeal from a grant of summary judgment, we accept

as true the evidence offered by the non-moving party, and we

draw all reasonable inferences in that party’s favor. Zerante v.

DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff Joyce Whit-

aker first started working for Milwaukee County in 2001. She

initially worked as a corrections officer, but after suffering a

back injury in 2005, she transitioned to other positions with

the County. She ultimately became an economic support spe-

cialist in the Income Maintenance Program, which manages

Milwaukee’s applications for public assistance. Whitaker’s re-

sponsibilities included processing applications for benefits,

answering phone calls, and general case management.

In 2009, the Wisconsin legislature directed the Wisconsin

Department of Health Services to assume administration of

Milwaukee County’s public assistance program. 2009 Wis.

Act. 15, § 22, codified at Wis. Stat. § 49.825. Whitaker contin-

ued in her position, where she worked on behalf of the

County but was under the supervision of the Department of

Health Services. The Department had authority to make em-

ployment decisions regarding Whitaker, Wis. Stat.

§ 49.825(3)(b)(1), and it made the termination decision that

she challenges in this suit.

The Department was aware of Whitaker’s disability at

least as early as 2009. On December 8, 2009, Whitaker filed a

No. 16-1807 3

disability form seeking an accommodation for her chronic

back pain. She requested permission to stand and stretch for

five minutes once every thirty minutes during the workday.

The Department approved her request.

B. Consecutive Leaves of Absence

In the summer of 2010, Whitaker took the first of several

consecutive leaves of absence. She never returned to work be-

fore she was fired in November 2010. During those months,

Whitaker requested and received a number of extensions un-

til she had exhausted several types of leave that were availa-

ble to her. At times she made clear that she was requesting

leave due to her disability. At other times it was less clear why

she requested leave. The events unfolded as follows.

On August 27, 2010, Whitaker requested two weeks of

continuous leave under the Family and Medical Leave Act

(FMLA) due to her “recurrent back pain.” The Department

approved her request and set her return date for September

10, 2010. Then, on September 8, Whitaker requested addi-

tional FMLA leave until December 27, 2010 to take care of a

family member and because of her medical condition. The De-

partment authorized leave through October 18, 2010, but in-

formed Whitaker that her FMLA leave for the year would be

exhausted at that point. The Department advised Whitaker

that she could, however, request an unpaid leave of absence

for up to 30 more days under section 2.24 of her contract:

“Leaves of absence without pay [not] exceeding 30 calendar

days may be granted for good reason to any employee with

the approval of their [sic] department head or designee … .

Request for such leaves shall be made by the employee as far

as possible in advance of the date on which such leave is to

4 No. 16-1807

begin.” The Department also explained the process for re-

questing that leave.

On October 18, Whitaker submitted a request for contrac-

tual leave without pay through December 28, 2010. This time

her request said that she sought leave to “take care of [her] ill

father” and due to her “own personal illness.” It did not men-

tion her back condition specifically. The Department ap-

proved her contractual leave until November 5, 2010, but

noted that it “will not be granting any additional extensions

of this leave” and Whitaker was “expected to return to work on

Monday, November 8, 2010.” (Emphasis in original.) The De-

partment warned Whitaker that if she failed to return to work,

it would begin the termination process.

Whitaker did not return to work on November 8. She did,

however, submit two additional notes from her doctor. One,

dated November 3, 2010, said only “medical leave of absence

until 11/17/10.” The second was dated November 12, 2010 and

said only “medical leave of absence until 12/17/10.” Neither

note provided any detail on Whitaker’s condition, her course

of treatment, or the likelihood of her recovery.

C. Termination and Lawsuit

On November 15, 2010, the Department notified Whitaker

that it was considering terminating her employment due to

her failure to return to work. It scheduled a meeting with her

for November 18 to “discuss this pending action and provide

any documentation you wish to submit for consideration.”

Whitaker attended the November 18 meeting with a union

representative. She indicated that she still could not return to

work. The Department then terminated her employment on

November 30, and Whitaker sued.

No. 16-1807 5

Whitaker’s legal claims have gone through several itera-

tions. On appeal, she argues that the Department of Health

Services violated Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, by rejecting what she calls her request for an ac-

commodation of “finite, unpaid leave” and instead terminat-

ing her employment.1

The district court granted summary judgment in favor of

the Department. First, the court found that Whitaker failed to

provide evidence that she could perform the essential func-

tions of her position, either with or without an accommoda-

tion. Second, the court found that Whitaker had admitted that

she was not terminated “solely by reason of her … disability,”

as required by the Rehabilitation Act. Finally, the court found

that Whitaker’s accommodation request “amounted to an

open-ended leave request,” which was not reasonable and

would have imposed an undue burden on the Department.

II. Analysis

A. Standard of Review

We review de novo the district court’s grant of summary

judgment. Magnus v. St. Mark United Methodist Church, 688

1 Whitaker filed an earlier lawsuit alleging a violation of the Ameri-

cans with Disabilities Act and naming both Milwaukee County and the

Wisconsin Department of Health Services as defendants. The Department

was dismissed on sovereign immunity grounds, and the district court

granted the County’s motion for summary judgment because the adverse

employment actions were taken by the Department, not the County. We

affirmed. Whitaker v. Milwaukee County, 772 F.3d 802 (7th Cir. 2014). On

August 20, 2013, Whitaker filed this new suit against the Department un-

der the Rehabilitation Act. The district court denied the Department’s mo-

tion to dismiss on claim preclusion grounds but granted its motion for

summary judgment, which Whitaker now challenges.

6 No. 16-1807

F.3d 331, 336 (7th Cir. 2012). Except for its “solely by reason

of” standard, the Rehabilitation Act “incorporates the stand-

ards applicable to Title I of the [Americans with Disabilities

Act].” Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir.

2013). To prevail on her Rehabilitation Act claim, Whitaker

must show that: “(1) she is disabled within the meaning of the

statute; (2) that she was otherwise qualified for the job in ques-

tion; (3) that she was discharged or the subject of other ad-

verse action solely because of her disability; and (4) the em-

ployment program of which her job was a part received fed-

eral financial assistance.” Felix v. Wisconsin Dep’t of Transpor-

tation, 828 F.3d 560, 568 (7th Cir. 2016).

To avoid a motion for summary judgment challenging

each element, Whitaker must present evidence that, if be-

lieved by a trier of fact, would establish each of these ele-

ments. Kotwica v. Rose Packing Co., 637 F.3d 744, 748 (7th Cir.

2011). It is undisputed that Whitaker is disabled within the

meaning of the statute and that the Department receives fed-

eral funds. However, Whitaker failed to present evidence that

would allow a trier of fact to find that she was an “otherwise

qualified” employee. An employee is “otherwise qualified”

when she is capable of performing the “essential functions”

of the job with or without a reasonable accommodation.

Brumfield, 735 F.3d at 631. Since Whitaker failed to establish

that she could perform the essential functions of her job, her

Rehabilitation Act claim fails. We need not address the De-

partment’s argument that Whitaker never made a proper ac-

commodation request in the first place, nor the district court’s

conclusion that her request was not reasonable.

No. 16-1807 7

B. “Otherwise Qualified” Employee

For purposes of the Americans with Disabilities Act and

the Rehabilitation Act, regular attendance is an essential func-

tion of many jobs. See, e.g., Basden v. Professional Transporta-

tion, Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“An employer is

generally permitted to treat regular attendance as an essential

job requirement and need not accommodate erratic or unreli-

able attendance.”), citing EEOC v. Yellow Freight System,

Inc., 253 F.3d 943, 948–49 (7th Cir. 2001); Jovanovic v. In-Sink-

Erator Division of Emerson Elec. Co., 201 F.3d 894, 899–900 (7th

Cir. 2000) (“Common sense dictates that regular attendance is

usually an essential function in most every employment set-

ting; if one is not present, he is usually unable to perform his

job.”).

While there may be exceptions to this general rule, the rec-

ord shows there was no exception in this case: Whitaker’s eco-

nomic support specialist position required regular attend-

ance. The position’s responsibilities included answering

phone calls, attending in-person meetings with clients, using

the Department’s internal computer system, and other tasks

that required attendance. Whitaker does not provide any evi-

dence that attendance was not an essential function of the job.

Whitaker argues instead that even if attendance was an es-

sential function, the district court erred by analyzing her qual-

ification only without accommodation, rather than also with

a reasonable accommodation. This is simply not the case. The

district court did consider whether Whitaker was capable of

performing the essential functions of her job either with or

without a reasonable accommodation. Whitaker did not meet

this standard without an accommodation because she failed

to attend work, and attendance was an essential function of

8 No. 16-1807

the job. She did not meet this standard with an accommoda-

tion because, as the district court discussed, she did not offer

sufficient evidence to establish this element.

Whitaker did not offer any evidence regarding the effec-

tiveness of her course of treatment or the medical likelihood

of her recovery. The only medical documents she supplied

were two terse doctor notes. One stated “medical leave of ab-

sence until 11/17/10” and the other stated “medical leave of

absence until 12/17/10.” These notes did not explain whether

Whitaker was even receiving treatment, let alone the likely ef-

fectiveness of the treatment. We have found doctor notes were

insufficient to support a reasonable accommodation even if

they were more informative than these. See, e.g., Weigel v. Tar-

get Stores, 122 F.3d 461, 469 (7th Cir. 1997) (affidavit from

plaintiff’s psychiatrist saying “there was a good chance” that

she would be able to return to work was “too conclusory and

uninformative” to support conclusion that accommodation

would enable plaintiff to attend work regularly). The doctor

notes here were even less informative.

Given this shortcoming, Whitaker argues that her declara-

tion provides sufficient evidence that she could perform the

essential functions of her job if given an accommodation—

that is, that she could attend work on a regular basis if given

additional leave. In her September 2015 declaration, Whitaker

stated that she received cortisone injections and physical ther-

apy during her leave in the fall of 2010. She also said: “I pro-

vided [the Department] with an anticipated return to work

date of December 28, 2010 that I would have actually been

able to return by if Defendant had extended my medical

leave.”

No. 16-1807 9

It is true that “self-serving affidavits can indeed be a legit-

imate method of introducing facts on summary judgment.”

Widmar v. Sun Chemical Corp., 772 F.3d 457, 459–60 (7th Cir.

2014). Moreover, we have taken pains to reject “the miscon-

ception that evidence presented in a ‘self-serving’ affidavit is

never sufficient to thwart a summary judgment mo-

tion.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see also

Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“Deposi-

tion testimony, affidavits, responses to interrogatories, and

other written statements by their nature are self-serving. As

we have repeatedly emphasized over the past decade, the

term ‘self-serving’ must not be used to denigrate perfectly ad-

missible evidence through which a party tries to present its

side of the story at summary judgment.”) (citation omitted).

Nonetheless, Whitaker’s declaration is insufficient to

avoid summary judgment. Her declaration does not provide

sufficient evidence to allow a trier of fact to find that, if the

Department had given her additional unpaid leave, she likely

would have been able to return to work on a regular basis.

While Whitaker said that she was receiving treatment, she did

not explain the effectiveness of this treatment or the medical

likelihood that it would enable her to return to work regularly.

Again, we have found claims with even more medical evi-

dence insufficient. See, e.g., Basden, 714 F.3d at 1038 (plaintiff

provided “evidence that medication improved her condition;

that she had hoped for enough improvement to return to

work regularly after leave; and that she subsequently had

brief employment that was interrupted by a two-week ab-

sence caused by her condition;” that “evidence was insuffi-

cient to support a factual finding that [plaintiff] was able to

come to work regularly at the time of her termination, or that

10 No. 16-1807

her regular attendance could have been expected following

the leave she sought or with any other accommodation”).

The insufficiency of Whitaker’s declaration is com-

pounded by the record, which shows that she had repeatedly

requested additional medical leave when her leave was about

to expire. See, e.g., Amadio v. Ford Motor Co., 238 F.3d 919, 928–

29 (7th Cir. 2001) (in light of employee’s attendance record,

“the extension of [employee’s] already lengthy leave by one

more week would have been a futile concession, not a reason-

able accommodation”).

Since Whitaker failed to establish that she was an “other-

wise qualified” employee, we need not address whether she

properly requested an accommodation, or whether her ac-

commodation request was reasonable. The district court’s

grant of summary judgment for the Wisconsin Department of

Health Services is

AFFIRMED.