Petition for Writ of Certiorari — Gregory Patmythes, Petitioner v. City of Madison, Wisconsin

App. 1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

October 19, 2020

Before:

Diane S. Sykes Chief Judge

Joel M. Flaum, Circuit Judge

Michael B. Brennan, Circuit Judge

GREGORY PATMYTHES, ] Appeal from the United

] States District Court

Plaintiff-Appellant,

] for the Western District

No. 20-2223

v.

] of Wisconsin.

CITY OF MADISON,

]

No. 3:16-cv-00738-wmc

Defendant-Appellee. ]

] William M. Conley,

] Judge.

ORDER

On consideration of the papers filed in this appeal

and review of the short record,

IT IS ORDERED that this appeal is LIMITED to

a review of the order entered on May 8, 2020, denying

appellant’s Rule 59(e) and Rule 60 motions.

Rule 4(a) of the Federal Rules of Appellate Proce­

dure requires that a notice of appeal in a civil case be

filed in the district court within 30 days of the entry of

the judgment or order appealed. In this case judgment

was entered on June 13,2018, and the notice of appeal

App. 2

was filed on July 8, 2020, nearly two years late. The

district court has not granted an extension of the ap­

peal period, see Rule 4(a)(5), and this court is not em­

powered to do so, see Fed. R. App. R 26(b).

Appellant Gregory Patmythes’ Rule 59(b) and

Rule 60 motions did not toll the time to appeal the

judgment because neither motion was filed within 28

days of entry of the judgment. The papers were filed on

July 12, 2020, the 29th day after entry of judgment.

The court notes that Fed. R. Civ. P. 6(d) does not extend

the time to file any of Fed. R. App. P. 4(a)(4)’s tolling

motions. Blue v. International Brotherhood of Electri­

cal Workers Local Union 159, 676 Fed. 579, 582 (7th

Cir. 2012).

This appeal, however, is timely as to the district

court’s order of May 8, 2020, denying appellant’s Rule

59(b) and Rule 60 motions. The time to appeal the or­

der expired on June 8, 2020. But appellant filed, on

May 28, 2020, a timely motion to extend the time to

appeal. See 28 U.S.C. § 2107(c). The district court

granted the motion, extending the time to appeal to

July 8, 2020, and appellant filed an appeal on that

date. This appeal, therefore, may proceed to review of

the May 8, 2020 order.

IT IS FURTHER ORDERED that the briefing in

this appeal, as LIMITED by this order, shall proceed

as follows:

1.

The appellant shall file his brief and required

short appendix on or before November 25,

2020.

App. 3

2.

The appellee shall file its brief on or before

December 28, 2020.

3.

The appellant shall file his reply brief, if any,

on or before January 19, 2021.

NOTE: Counsel should note that the digital copy of

the brief required by Circuit Rule 31(e) must

contain the entire brief from cover to conclu­

sion, the language in the rule that “[T]he disk

contain nothing more than the text of the brief

...” means that the disk must not contain

other files, not that tabular matter or other

sections of the brief not included in the word

count should be omitted. The parties are ad­

vised that Federal Rules of Appellate Proce­

dure 26(c), which allows for three additional

days after service by mail, does not apply

when the due dates for briefs are set by order

of court. All briefs are due by dates ordered.

Case: 20-2223

Document: 17

Filed: 11/20/2020

Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

ORDER

November 20, 2020

Before

DIANE S. SYKES, Chief Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

GREGORY PATMYTHES,

Plaintiff - Appellant

No. 20-2223

v.

CITY OF MADISON,

Defendant - Appellee

Originating Case Information:

District Court No: 3:16-cv-00738-wmc

Western District of Wisconsin

District Judge William M. Conley

The following are before the court:

1. NONSTANDARD MOTION FOR APPOINTMENT OF COUNSEL,

RECONSIDERATION, TO SEAL THIS DOCUMENT AND SUSPEND BRIEFING, filed on

November 12, 2020, by the pro se appellant.

2. MOTION FOR COURT ACTION, filed on November 12, 2020, by the pro se appellant.

3. LETTER, filed on November 16, 2020, by the pro se appellant,

IT IS ORDERED that the motion for reconsideration of this court's October 19, 2020, order is

DENIED.

Case: 20-2223

Document: 17

Filed: 11/20/2020

Pages: 2,

No. 20-2223

Page 2

IT IS FURTHER ORDERED that the request for recruitment of counsel is DENIED. See Pruitt

v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc); Farmer v. Haas, 990 F.2d 319, 321 (7th Cir. 1993).

It is not necessary to recruit counsel to assist in resolving the issues raised on appeal. Briefing

in this appeal will proceed as follows:

1. The brief and required short appendix of the appellant are due by January 20, 2021.

2. The brief of the appellee is due by February 22, 2021.

3. The reply brief of the appellant, if any, is due by March 15, 2021.

Appellant may request further reasonable extensions of time if he is unable to meet current

deadlines.

IT IS FINALLY ORDERED that the request to file under seal is GRANTED only to the extent

that the clerk of this court shall maintain under seal the letter filed by appellant on

November 16, 2020.

Important Scheduling Notice !

Hearing notices are mailed shortly before the date of oral argument. Criminal appeals are scheduled shortly after the filing of the

appellant's main brief; civil appeals are scheduled after the filing of the appellee's brief. If you foresee that you will be unavailable

during a period in which your appeal might be scheduled, please write the clerk advising him of the time period and the reason for your

unavailability. The court's calendar is located at http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once an appeal has been scheduled

for oral argument, it is very difficult to have the date changed. See Cir. R. 34(e).

form name: c7_Order_3J(form ID: 177)

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

GREGORY PATMYTHES,

Plaintiff,

v.

OPINION AND ORDER

16-cv-738-wmc

(Filed May 8, 2020)

CITY OF MADISON,

Defendant.

Pro se plaintiff Gregory Patmythes, who suffers

from cystic fibrosis, brought claims against the City, of

Madison under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101, et seq., and § 504 of the

Rehabilitation Act of 1973 (“the Rehabilitation Act”),

as amended, 29 U.S.C. § 794, alleging that the City:

(1) discriminated against him on the basis of his disa­

bility by “deliberately and intentionally eliminating

only his position of employment” and refusing to trans­

fer him to a different position for which he was quali­

fied; (2) failed to provide reasonable accommodations

to enable him to manage his cystic fibrosis symptoms

better; and (3) subjected him to a hostile work environ­

ment because of his disability. On June 13, 2018, the

court granted defendant’s motion for summary judg­

ment, finding that the evidence of record did not sup­

port a reasonable finding that the City of Madison

violated his rights under the ADA or Rehabilitation

Act. (Dkt. #44.) Plaintiff has since filed motions to alter

or amend under Fed. R. Civ. P. 59(e) and 60. (Dkt. ##46,

52.) Since plaintiff has identified no ground for the

App. 5

court to reconsider its conclusions or set aside judg­

ment, however, the court must deny these motions.

OPINION

Federal Rule of Civil Procedure 59(e) allows the

court to reconsider its judgment based on (1) manifest

error of law or facts or (2) newly discovered evidence

that merits reconsideration of the judgment. See

Obriecht v. Raemisch, 517 F.3d 489,494 (7th Cir. 2008).

Even so, Rule 59(e) “may not be used to relitigate old

matters, or to raise arguments or present evidence that

could have been raised prior to the entry of judgment.”

Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5

(2008) (quoting 11 C. Wright & A. Miller, Federal Prac­

tice and Procedure § 2810.1, at 12 7-2 8 (2d ed. 1995)).

Federal Rule of Civil Procedure 60(b) similarly allows

for relief from “a final judgment order, or proceeding”

on multiple grounds, including mistake, misconduct or,

as set forth in Rule 60(b)(6), “any other reason that

justifies relief.” Again, however, relief from a final judg­

ment under any subsection of Rule 60(b) is “an extraor­

dinary remedy and is granted only in exceptional

circumstances.” Bakery Mach. & Fabrication, Inc. v.

Trad. Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009).

The narrow relief afforded under either of these

rules is simply not available to plaintiff here. In grant­

ing defendant’s motion for summary judgment, the

court concluded that the evidence of record would not

support a reasonable finding that defendant violated

the ADA, under any of his three theories for relief.

App. 6

First, the court concluded that no reasonable jury

could conclude that the City failed to accommodate his

disability within reasonable limits. Specifically, the

evidence of record showed that the City’s Occupational

Accommodation Specialist, Sherry Severson, made

efforts to work with plaintiff to find a reasonable ac­

commodation, but plaintiff failed to provide any docu­

mentation from a care provider opining that: (1) he

could not meet the requirements of his position as a

Zoning Inspector; or (2) his workplace conditions did

not adequately address his disability. (Op. & Order

(dkt. #44) at 28-30.) Second, the court concluded that

the City did not discriminate against plaintiff on the

basis of his disability in failing to hire him for three

other positions. Indeed, there was no dispute with re­

spect to two of those positions that plaintiff was lessqualified than the people hired, and for the other posi­

tion, that no one was hired because the individuals re­

sponsible for hiring did not believe that any applicants

were qualified. (Id. at 23-26.) Third, the court con­

cluded that the evidence of record did not support a

reasonable finding that plaintiff was subjected to a

hostile work environment based on the statements of

two other City employees, Dickens and Leifer; regard­

less, once the City learned about Dickens’ statements,

the uncontroverted evidence established that it re­

sponded adequately. (Id. at 34-36.)

Nevertheless, the court addresses below each of

the grounds for relief raised by plaintiff in his motions

to alter or amend the judgment.

App. 7

I.

Newly Discovered Evidence

Plaintiff first asserts that the following pieces of

“newly discovered” evidence warrant reconsideration:

a new affidavit from plaintiff, and four exhibits related

to information available before the court resolved de­

fendant’s motion for summary judgment. At the outset,

plaintiff acknowledges that much of this “new” evi­

dence existed before the he filed his summary judg­

ment opposition materials or at least before the court

entered judgment. Nonetheless, plaintiff insists that

the court should consider this new evidence for three

reasons: (1) he did not learn about the information un­

til after he filed his opposition; (2) he chose not to come

forward with all of his evidence at the summary judg­

ment stage because he wanted to save evidence for

trial; or (3) he was confused.

Given the instructions plaintiff received from the

court explaining his obligation to respond paragraph

by paragraph to defendant’s proposed findings of fact

(see Preliminary Pretrial Conf. Order (dkt. #6) at 1522), and the extremely lengthy proposed findings of

fact and detailed arguments plaintiff did file in oppo­

sition to defendant’s motion for summary judgment, it

is doubtful that he omitted any of this evidence strate­

gically or due to confusion, and any failure to discover

it falls on plaintiff, absent evidence of misconduct by

the City. Although this alone is grounds to deny plain­

tiff’s claims of “new” evidence, the court will briefly

explain why none of this “new” evidence calls into ques­

tion the entry of judgment in defendant’s favor in any

event.

App. 8

First, plaintiff’s new affidavit raises issues related

to his discriminatory hiring claim. Plaintiff now claims

that a “non-competitive reassignment” was granted to

another City employee, Ms. D. Collingwood, and he

learned about this promotion only after responding to

the City’s motion for summary judgment in March of

2018. According to plaintiff, Collingwood was promoted

from a position of .75 FTE Graphics Tech in the Office

of the Director of Planning and Community and Eco­

nomic Development to a 1.0 FTE Program Assistant in

the Department of Civil Rights. Plaintiff claims he, too,

requested noncompetitive reassignment, but his re­

quest was denied, inferring that he was discriminated

against on the basis of to his disability. While the

court’s opinion did hone in on plaintiff’s failure to come

forward with a comparator for purposes of his discrim­

ination claim, that failure was not dispositive. Rather,

the court’s analysis of his discrimination claim focused

equally on the City’s evidence that its hiring decisions

were objectively reasonable because the hired appli­

cants were more qualified than plaintiff or the City de­

termined that none of the applicants were sufficiently

qualified. (Op. & Order (dkt. #44) at 25-26.) For that

reason, even assuming that the court would accept Col­

lingwood as an adequate comparator and good cause

existed for his failing to call it to the court’s attention

sooner, plaintiff still has not pointed to any manifest

error in the court’s finding that the City’s failure to pro­

mote him did not amount to discrimination on the ba­

sis of his disability.

App. 9

Second, on March 26,2018, plaintiff claims to have

learned that Byron Bishop, the head of the City’s Equal

Opportunities Division, accused its Human Resources

Department of bias against people of color and women.

Again, even if this email exists and underlying facts

could not have been proffered sooner, the email is not

relevant to the City’s decisions in 2014 and 2015 to hire

someone with more qualifications than plaintiff.

Third, plaintiff cites to one of the City’s filings

with the State of Wisconsin’s Equal Rights Division

(“ERD”), in which it represented that: there were no

windows in plaintiff’s unit; plaintiff worked a signifi­

cant amount of time outside his office; and the City was

not aware that any co-employee had “questionable

interactions” with plaintiff. (PI. Br. (dkt. #47) at 13.)

While plaintiff claims that he worked in his office

much more than the City represented, the evidence of

record in this case showed that his health care pro­

vider’s report to the City did not request a specific ac­

commodation related to a room with a window. As for

the “questionable interactions” comment, the City’s

knowledge about comments made to plaintiff is irrele­

vant given that the court assumed that certain unkind

statements were made to plaintiff for purposes of sum­

mary judgment, but concluded that these statements

did not amount to a hostile work environment as a

matter of law. Regardless, it was undisputed that the

City responded in a reasonable manner once made

aware of these statements, absolving it from liability.

(Op. & Order (dkt. #44) at 34-36.) Finally, all of this

information was patently available to plaintiff at

App. 10

summary judgment because he had to exhaust the

ERD proceedings before bringing suit in federal court.

Fourth, related to the reasonable accommodation

claim, plaintiff: describes the relocation of the City of­

fices to another building (PI. Br. (dkt. #47) at 17); refer­

ences sampling of air quality {id. at 18); and submits

the City’s alleged proposal that he sit in a windowless

office in the Madison Municipal Building {id. at 37).

However, none of this evidence would be material to

the court’s conclusions related to his need for a rea­

sonable accommodation. The court’s conclusion with

respect to this theory for relief relied heavily on

plaintiff’s failure to respond reasonably to Sev­

erson’s requests for documentation from his health

care providers, and none of this “new” evidence sug­

gests that Patmythes actually engaged with Severson

in an attempt to arrive at an appropriate accommoda­

tion to help him manage his symptoms.

Fifth, plaintiff cites to additional conversations he

allegedly had with Severson regarding placing him in

a vacant position, and the possibility of him working

remotely, which apparently relates to his claim that

the City failed to accommodate his disability reasona­

bly. (PI. Br. (dkt. #47) at 12, 19.) However, it is undis­

puted that Severson also had explained that to place

plaintiff in a vacant position as an accommodation,

there would need to be a record establishing that

Patmythes could not perform the functions of his cur­

rent position. Again, plaintiff does not claim he ever

provided the City such an opinion from a medical

professional supporting his working from home or

App. 11

placement in a different position. To the contrary, the

only opinion evidence before the court was a nurse

practitioner, who wrote the City a letter, but did not

even bring up the possibility of moving plaintiff to an­

other position or allowing him to work from home. (See

Op. & Order (dkt. #44) at 14-15.)

Sixth, plaintiff attempts to clarify a vague state­

ment he introduced at summary judgment, having pre­

viously alleged that when he was applying for the

Project Manager position, an unidentified City em­

ployee told him he was “not right for the position,” and

the court commented that the statement was not ma­

terial because plaintiff failed to identify the person

speaking or suggest that the person was a decision­

maker. (Op. & Order (dkt. #44) at 27.) Now Patmythes

claims that the person was Tariq Saqqaf, a member of

the mayor’s staff. Even if timely, this identification is

also immaterial, since there is no suggestion that

Saqqaf was involved in the hiring process for that po­

sition in any way.

II.

Mistake, Inadvertence, Surprise or Excus­

able Neglect

Plaintiff further claims that the court erred in nu­

merous ways in granting defendant’s motion. While

the court will briefly address assertion each in turn,

again none are a basis for reconsideration.

To start, plaintiff claims the court failed to afford

him more latitude as a pro se litigant and erred in

denying his request for assistance in recruiting

App. 12

counsel. (PI. Br. (dkt. #47) at 4-7.) In fact, the court con­

strued his claims and evidence of record generously.

The court also explained in detail why it was denying

plaintiff’s request for assistance in recruiting counsel:

his submissions illustrated that he understood how to

litigate his claims, could adeptly gather and present

evidence, and could argue his positions using relevant

legal standards. (Op. & Order (dkt. #44) at 2-3.) The

court was not obliged to do more for him then or now;

indeed, his pending motions continue to confirm that

he is well-aware of the nuances of his claims and has

been litigating his claims adequately without the help

of an attorney. That he did not prevail is due largely to

the lack of evidence supporting his claims, which his

current motions only serve to confirm.

Next, plaintiff argues that the court did not ade­

quately take into account the City’s practice of non­

competitive reassignment or transfer, underfilling, and

interim hiring. (PL Br. (dkt. #47) at 1, 2,19-20, 23, 27.)

Again, in fact, the court expressly addressed plaintiff’s

allegation that the City had such a practice, but con­

cluded that he had failed to submit evidence that

would support a finding that the City did not hire him

for vacant positions because of his disability. (Op. & Or­

der (dkt. #44) at 17, 25, 26.)

Plaintiff also insists that there are multiple dis­

puted facts that warrant reconsideration, but he points

to nothing showing that the court’s findings were

App. 13

disputed.1 First, plaintiff claims that his 2006 promo­

tion from Zoning Code Officer 1 to Zoning Code Officer

2 resulted from his settlement of a grievance, not be­

cause the City had underfilled the Zoning Code Officer

2 position when Patmythes was initially hired in 2004,

as set forth in the court’s opinion. (See Op. & Order

(dkt. #44) at 8.) However, plaintiff’s previous advance­

ment was not material to the court’s ultimate conclu­

sion regarding the City’s hiring decisions made in 2014

and 2015.

Second, while the evidence of record at summary

judgment was that plaintiff suggested to the City’s

Occupational Accommodations Specialist, Sherry Sev­

erson, that he receive a HEPA filter, and Severson ex­

pressed concerns as to whether such a filter would

improve his office’s air quality (id. at 8), plaintiff now

claims that he was the one who had doubts about the

efficacy of a HEPA filter (PI. Br. (dkt. #47) at 10, 34).

Yet, at summary judgment, the court accepted that

plaintiff had objected to the HEPA filter, but failed to

come forward with any evidence related to: how he

objected, how Severson responded to his alleged

1 Plaintiff further claims that he inadvertently failed to re­

spond to numerous of defendant’s proposed findings of fact, and

would now submit his responses. (See dkt. #53-2.) The court has

reviewed those responses. For the most part, plaintiff disputes

only facts that the court omitted from its analysis because the

court agreed that any events before April 1, 2015, were irrelevant

to his claims in this lawsuit. As for the remaining “facts,”

Patmythes disputes are based on his opinion, not factual aver­

ments, so the court will not address them further for purposes of

his pending motions.

App. 14

objection, and, most importantly, whether a health care

provider agreed that a HEPA filter was inappropriate.

(Op. & Order (dkt. #44) 29,31.)

Third, plaintiff disputes the court’s finding that he

rejected a move to a different office with a window (see

Op. & Order (dkt. #44) 11), contending instead that he

never rejected an offer to move into an office with a

window (PI. Br. (dkt. #47) 13, 35-37). Even accepting

that plaintiff never rejected an offer to move to an of­

fice with a window, however, the record still does not

contain evidence that any medical professional actu­

ally recommended that move, and, regardless, he was

eventually placed in open office area with a window.

(Op. & Order (dkt. #44) 14-15, 30-31.) Finally, plaintiff

argues that the City was inconsistent in how it filled a

Facilities and Sustainability Manager position in 2007,

as compared to the Project Manager position he had

applied to in 2015 - now suggesting that the person

hired in 2007 was not qualified for that position, just

as he was not technically qualified for the Project Man­

ager position. (PI. Br. (dkt. #47) 22-23.) Besides the fact

that plaintiff still has not provided sufficient details

about the two applicants and the two positions to find

that this example constituted an adequate comparator,

plaintiff still has also failed to acknowledge the fact

that the City came forward with evidence that no one

was hired for that Project Manager position because

the City determined the position needed to be restruc­

tured to include architectural qualifications. (Op. &

Order (dkt. #44) 24-26.)

App. 15

Finally, plaintiff attempts to reargue a number of

points: he should have been reassigned to a vacant po­

sition rather than having to compete for one (PL Br.

(dkt. #47) 12,16,17,20,27-33,43-45); he was subjected

to a hostile work environment based on the statements

made by Leifer and Dickens (Pl. Br. (dkt. #47) 15, 21,

24, 32,45-49); and he was not allowed to ask questions

when he interviewed for the Police Records Supervisor

position. However, plaintiff has failed to identify any

manifest error of law or fact. Instead, these arguments

amount to general disagreement with the court’s fac­

tual findings and legal conclusions, which is not a

proper basis for the court to disturb its judgment. See­

ing neither new facts warranting reconsideration nor

a manifest error of law in its original judgment, there­

fore, the court must deny plaintiff’s motions.

ORDER

IT IS ORDERED that plaintiff Gregory Patmythes’

motions pursuant to Federal Rules of Civil Procedure

59(e) and 60 (dkt. ##46, 52) are DENIED.

Entered this 8th day of May, 2020.

BY THE COURT:

/s/

WILLIAM M. CONLEY

District Judge

App. 16

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

GREGORY PATMYTHES,

Plaintiff,

v.

OPINION AND ORDER

16-cv-738-wmc

(Filed Jun. 13, 2018)

CITY OF MADISON,

Defendant.

Pro se plaintiff Gregory Patmythes suffers from

cystic fibrosis, a life threatening disease requiring ex­

tensive medical care. While he remains an employee of

defendant, the City of Madison (“the City”), Patmythes

brings this action under the Americans with Disabili­

ties Act (“ADA”), 42 U.S.C. § 12101, et seq., and § 504 of

the Rehabilitation Act of 1973 (“the Rehabilitation

Act”), as amended, 29 U.S.C. § 794, claiming that the

City: (1) discriminated against him on the basis of his

disability by “deliberately and intentionally eliminat­

ing only his position of employment” and refusing to

transfer him to a different position for which he was

qualified; (2) failed to provide reasonable accommoda­

tions to enable him to manage his cystic fibrosis symp­

toms better; and (3) subjected him to a hostile work

environment because of his disability.

Pending before the court is the City’s motion for

summary judgment (dkt. #9), as well as Patmythes’

motion for assistance in recruiting counsel (dkt. #7)

and motion to exclude certain evidence (dkt. #27). For

reasons explained in this opinion, the court will deny

App. 17

Patmythes’ request for assistance in recruiting counsel

while granting his motion to exclude in part and deny­

ing it in part. Because the evidence of record, even

when viewed in Patmythes’ favor, does not support a

finding that the City violated his rights under the ADA

or Rehabilitation Act, the court will also grant the

City’s motion for summary judgment.

OPINION

I.

PATMYTHES’ MOTIONS

A. Motion for assistance in recruiting

counsel (dkt. #7)

Patmythes requests that the court recruit counsel

on his behalf because he has recently been diagnosed

with a type of arthritis associated with his cystic fibro­

sis, and he suffers from infections attributed to his con­

dition, as well as anxiety and depression. Patmythes

also represents that he has reached out to multiple law

firms, each of whom have declined. Unfortunately, the

starting point for any request for appointment of coun­

sel in civil cases is that there is no such right. Olson v.

Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Rather,

courts may grant motions for assistance in recruiting

counsel where a party meets several requirements.

Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010).

Here, Patmythes has established that (1) he is unable

to afford counsel and (2) he has made reasonable ef­

forts to find a lawyer on his own but has been unsuc­

cessful.

App. 18

Still, plaintiff’s motion turns on his ability to rep­

resent himself. The operative question is not whether

a lawyer will do a better job than Patmythes - that is

almost always the case. Instead, the question is

whether this is a case in which it appears from the rec­

ord that the legal and factual difficulties exceed the

plaintiff’s ability to prosecute it on his own. Pruitt v.

Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). In respond­

ing to the motion for summary judgment, Patmythes

submitted his own lengthy affidavit, along with nu­

merous documents related to his employment and

statements by other City employees. While the admis­

sibility of some of these filings is questionable, he has

demonstrated an awareness of the issues relevant to

his claims and the ability to gather substantial evi­

dence to support his claims. Furthermore, his briefs

are clearly written and, while acknowledging that his

arguments at times rely on facts that do not bear di­

rectly on his claim in this lawsuit, Patmythes explains

that he wanted to provide additional information for

context. Substantively, Patmythes cites to relevant au­

thorities and argues his position under the proper

standard. More generally, Patmythes has been en­

gaged in this lawsuit: he meets deadlines and apprises

the court when he is unavailable. Accordingly, while

the court does not underestimate how difficult han­

dling this lawsuit may be for Patmythes, he has done a

more than adequate job representing himself through

summary judgment, and so his motion will be denied.

App. 19

B. Motion to exclude certain evidence

(dkt. #27)

Patmythes moves to exclude certain evidence that

the City submitted in support of its motion for sum­

mary judgment. In particular, he seeks to exclude: (1)

the City’s documentary evidence because the citations

to the exhibits lack a page and paragraph designation;

and (2) several of defendant’s proposed findings of fact

(“DPFOF”) and documents concern events occurring

after April 1, 2015. Patmythes’ first request will be de­

nied. The City’s citations to certain of the exhibits gen­

erally did not require a page and paragraph number.

In particular, the court has reviewed the City’s cita­

tions and corresponding evidence, finding the proposed

fact support by the materials as cited.1

As to his latter request, Patmythes states that the

facts and documents related to events after April 1,

2015, should be excluded because that was the date he

filed his complaint with the State of Wisconsin Equal

Rights Division (“ERD”), and the United States Equal

Employment Opportunities Commission (“EEOC”).

See ERD Case No. 201500823/EEOC Case No.

26G201500669C (“Case ‘669”). He specifically asks

the court to exclude or limit the DPFOF

7, 8, 25-29,

31-34,36-39, and 64-66. The City agrees that materials

1 Nor has Patmythes alleged that he had difficulty identify­

ing the City’s cited materials, and his responses suggest the op­

posite. Patmythes responded specifically to the City’s proposed

findings of fact in his affidavit, citing to multiple paragraphs of

the City’s proposed findings of fact. (Patmythes Aff. (dkt. #26)

M 161-62, 172, 243.)

App. 20

beyond Case ‘669 are not properly before the court, but

explains that Patmythes’ complaint and filings in this

case have included information not directly related to

Case ‘669, which is why its proposed findings of fact

include a broader range of facts. Therefore, the City

agrees to the proposed exclusion of some of its findings,

but not others, requiring the court to address them in

turn.

First, the City points out that even though his

claim in this lawsuit relates to Case ‘669, paragraphs

57-71 of his complaint contain allegations related to

Patmythes’ ongoing ERC/EEOC complaint. See ERD

Case No. CR201503529/EEOC Case No. 26G201600445C

(“Case ‘445”). In Case ‘445, Patmythes alleged that be­

tween April 15 and December 16, 2015, his reasonable

accommodation requests were repeatedly denied. In

particular, Patmythes alleges that: (1) a women’s lead­

ership program discriminated against him on the basis

of disability and gender; (2) the City did not respond to

his July 23, 2015, submission from his cystic fibrosis

care team related to reasonable accommodations; and

(3) the City had not complied with his request to work

up to three hours per day from home. (Def.’s Ex. D (dkt.

#12-3) at 5-7.) The ERD issued a “no probable cause”

decision regarding Patmythes’ disability allegations

and a “probable cause” decision with respect to his sole

allegation based on gender. While Patmythes appealed

the “no probable cause” findings related to the disabil­

ity allegations, and those findings were certified for a

probable cause hearing, Patmythes subsequently re­

quested they be held in abeyance due to ongoing health

App. 21

issues. Accordingly, the EEOC has not issued a deter­

mination with respect to the allegations Patmythes set

forth in Case ‘445, and the court considers them here

only as helpful in context.

Second, the City agrees that several of its pro­

posed findings of fact should be excluded, but asks that

some to which Patmythes objects be considered never­

theless because they relate to Case ‘669 and not Case

‘445. Specifically, the City takes the position that if the

court agrees it lacks jurisdiction to address issues be­

yond the purview of Case ‘669, DPFOF (][<1 25-27 and

29-38 should be excluded because they relate to other

accommodation requests not encapsulated in Case

‘669. Even more specifically, the parties seem to agree

that: M 25-27, 29-31, and M 36-38 all relate to

Patmythes’ leave of absence; and M 32-35 relate to his

request that he be allowed to work at home. Patmythes

agrees, replying that he does not want this court to re­

solve any issues that the Administrative Law Judge

(“ALJ”) currently handling his ERD appeal could re­

solve.

Third, the City nevertheless asks that the court

deem DPFOF M 7-8 relevant to this lawsuit because

those paragraphs merely outline Case ‘445, which in­

forms what issues are properly before the ALJ. The

court agrees and will not exclude those paragraphs

from consideration. Additionally, the City explains why

DPFOF M 28, 39, and 64-66 should be considered,

pointing out that Patmythes amended Case ‘669 on

January 20, 2016, to include multiple accommodation

allegations. (Def’s Ex. B (dkt. #12-2).) Therefore, the

App. 22

City asserts that this court has jurisdiction over the

accommodation-related issues to which DPFOF f f 28,

39, and 64-66 refer.

Indeed, paragraph 28 describes a June 23, 2015,

letter the City received from Patmythes’ health care

provider related to his health care needs; paragraph 38

outlines the timeframe of Patmythes’ use of leave; and

paragraphs 64-66 describe how the City handled a job

posting.

Each of these facts are relevant, or at least provide

context, to Patmythes’ claims that are properly before

the court. Accordingly, the court agrees that this law­

suit should be limited to the claims Patmythes raised

in Case ‘669, and it will not consider DPFOF M 25-27

and 29-38 (as well as corresponding Exhibits Q, R, S, T,

U and V) for purposes of summary judgment, and will

only reference these facts as needed for context.

II.

CITY’S MOTION FOR SUMMARY JUDG­

MENT (dkt. #9)

UNDISPUTED FACTS

Consistent with Patmythes’ position in his motion

to exclude, the City also objects to a large number of

Patmythes’ proposed findings of fact as irrelevant to

the claims properly before the court in this lawsuit, be­

cause they pertain to issues beyond Case ‘669. As

Patmythes has not opposed the objection, and indeed

explicitly stated that he would prefer to have his ap­

peal of the issues in Case ‘445 handled by the ALJ, the

App. 23

court summarizes those facts as needed for context

only. Regardless, the following facts are deemed undis­

puted for purposes of the City’s motion for summary

judgment when viewed in a light most favorable to

plaintiff. Helmen v. Duhaime, 742 F.3d 760, 761 (7th

Cir. 2014).

A. Background

The City’s Department of Planning, Community

and Economic Development (“Department”) includes a

Building Inspection Division, which in turn includes

the Zoning Administration where Patmythes worked.

During the relevant time period, George Hand super­

vised the Building Inspection Division, and Matthew

Tucker supervised the Zoning Administration. At that

same time, the City had in place the following Admin­

istrative Policy Memorandums (“APM”): APM 3-5 “Prohibited Harassment and/or Discrimination Pol­

icy”; APM 2-22 - “Workplace Accommodations”; and

APR 2-45 - “Disability Leave/Layoff". The City also

employs an Occupational Accommodations Specialist

to assist employees with disabilities.

Patmythes began working for the City in May of

2004 as a Zoning Code Officer I, and he was promoted

to a Zoning Code Officer II in 2006 by virtue of the

City’s practice of “underfilling” positions. That is,

Patmythes was hired to fill a position actually budg­

eted at Code II. Although Patmythes was initially

hired at Code I, he rose to this higher level through his

subsequent promotion.

App. 24

Since Patmythes’ employment began, the City has

been well aware of his cystic fibrosis. While not directly

relevant to Case ‘669, Patmythes took leave for multi­

ple periods of time between April of 2015 and April of

2016, returning to his Zoning Inspector position on

April 22, 2016, beginning with a part-time schedule. In

June 2016, he began working as a Zoning Inspector on

a full time basis, and he continues to work in that ca­

pacity.

B. Patmythes’ requests for accommodations

City Occupational Accommodations Specialist

Sherry Severson worked with Patmythes on his disa­

bility and accommodations requests. On September 8,

2014, Patmythes wrote to Severson requesting a HEPA

(“High Efficiency Particulate Air”) filter to improve air

quality in his work area, which he claimed was having

an adverse impact on his quality of life.2 Severson re­

sponded that she would contact him the next day to

talk specifics.

On September 12, 2014, Patmythes met with Sev­

erson in her office, who expressed doubts that a porta­

ble HEPA filter would appreciably improve his office’s

air quality. When Severson asked if he was ready for a

HEPA filter, Patmythes replied in the affirmative. As

an alternative, Severson asked Patmythes whether he

would consider moving to a different room. Either way,

2 HEPA filters can be permanent or corded, and portable fil­

ters can operate in rooms of approximately six hundred square

feet.

App. 25

Severson explained that Patmythes would need to pro­

vide documentation of his medical needs to address his

condition. Finally, Severson talked about another indi­

vidual with respiratory issues who transferred to an­

other department, but according to Severson that

individual did not move departments as a result of an

accommodation. (Severson 2d Aff. (dkt. #41) f 6.)

On November 12, 2014, Severson emailed

Patmythes, attaching three links to air quality control

devices and asking him whether a Ultraviolet Germi­

cidal Irradiation (“UVGI”) device would be a better

alternative. Additionally, Severson again asked

Patmythes’ opinion about moving to an empty office if

one was available. Having not received a response by

November 21,2014, Severson emailed Patmythes once

again, asking him if he would agree to an office switch.

According to Patmythes, after this email exchange Sev­

erson and Patmythes had a conversation in which Sev­

erson stated that she had checked on a HEPA filter and

learned that there was one in use by two other employ­

ees, but it had proven ineffective. According to

Patmythes, it was during this exchange that Severson

said he “argued too much.” (Patmythes Aff. (dkt. #26)

f 275.)3

On December 5, 2014, Patmythes emailed Sev­

erson, stating that she should expect two requests from

his doctors: (1) getting him a healthier work environ­

ment; and (2) modifying his schedule because he had

3 It appears that they also discussed how other employees

work remotely, but this issue is relevant to Case 445.

App. 26

been having a “pulmonary exacerbation.” Severson re­

sponded on December 8, 2014, acknowledging

Patmythes’ note and letting him know that they could

start the conversation with Matt and George (the su­

pervisors) sooner.

On January 6, 2015, however, Severson emailed

Patmythes that she had still not received medical

documentation regarding needed accommodations.

Patmythes responded the next day, stating that his

therapist was against relocating him to a different

room, but that he had been certified for a position in

the City’s Civil Rights Department and wanted to dis­

cuss a transfer to that position. Severson responded

that to transfer him on the basis of a disability, the City

would first need to determine that there were no rea­

sonable accommodations available to him in his cur­

rent position. On January 8, 2016, Severson emailed

Patmythes to acknowledge their many conversations

about his conditions and possible accommodations, but

further writing that even though she thought he was

ready to provide documentation, Patmythes seemed

“reluctant to move forward” when they reached the

point of approaching his supervisor. (Ex. 1 to Severson

2d Aff. (dkt. #41).)

On January 10, 2015, Severson received a letter

from Patmythes’ therapist, Nina Pernecke. (Pl.’s Ex. 29

(dkt. #26-26.) In that letter, Pernecke confirmed that

Patmythes was under her care for depression and anx­

iety related to his cystic fibrosis. She recommended

“his work space include a window and that the proxim­

ity of such space avails him to workplace interaction.”

App. 27

(Id.) On January 16,2015, Patmythes also submitted a

formal “Request for Accommodation” to Severson for a

transfer to a vacant position. (Defi’s Ex. P (dkt. #1311).) Patmythes stated that his current assignment

was exacerbating his conditions and requested a trans­

fer to the Engineering Department of the Department

of Civil Rights. (Id.) Patmythes further advised Sev­

erson to let him know if she needed any further docu­

mentation about his condition.

On January 21, 2015, Severson met with

Patmythes in person, and he brought along a copy of

Pemecke’s letter. By that point, Patmythes had re­

jected the option of moving to a different room with a

window. Severson and Patmythes discussed the fact

that the City would be moving his entire department

to temporary offices in a different building due to a re­

model, and Severson warned that the temporary offices

were “terrible.” According to Severson, she was refer­

ring to the large number of displaced City employees

at that space, but Patmythes understood Severson to

mean that the temporary office had terrible environ­

mental conditions. According to Patmythes, Severson

made additional comments suggesting that she did not

want him reassigned because of his disability:

•

“I don’t want people to not have all the truth

about what happens, the honest truth about

when we place people in new jobs is, guess

what, there’s resentment and they have to

deal with resentment by other people who ei­

ther thought they should have gotten the job

App. 28

or supervisors who think ‘well, how come I

didn’t get to select who I wanted to select.’ ”

•

“So I mean there’s resentments and things

that people have to deal with, we try really,

really hard to work on that, but like I can’t go

and talk to the other employees who maybe

were applying for the job as well or thought

they were going to get a job or an opportunity

to get a job and say well, but this person has

a disability.”

According to Patmythes, he left this meeting in tears.

(Patmythes Aff. (dkt. #26) ^ 288.)

Next, Patmythes claims the City’s Employee and

Labor Relations Manager, Gregory Leifer, made com­

ments on January 28, 2015, about health insurance

coverage, which Patmythes interpreted as discrimina­

tory toward individuals with disabilities. The context

is unclear - but Patmythes avers that Leifer made the

following statements:

•

“[F]ifteen percent of covered lives use eight[y]

-five percent of your premium dollars that

15%, sorry but that 15% is getting protection

from the other 85% that have good genes and

don’t get sick.”

•

“I don’t want to make this sound as Darwin­

ian as it’s going to sound but to follow up . . .

on great genes versus bad genes. Doesn’t the

bad genes person have a responsibility to

maintain their health? To avoid the things

that are going to make their chronic condi­

tions worse?”

App. 29

(Patmythes Aff. (dkt. #26) OT 353-57.) At least for pur­

poses of summary judgment, the City does not dispute

these statements were made, but argues that they are

not material to this lawsuit.

On February 4, 2015, Patmythes emailed Sev­

erson, asking for a status update on his requested re­

assignment. (Def.’s Ex. Q (dkt. #13-12) at 2.) Severson

was out of the office that day and did not respond. On

February 23, 2015, Patmythes followed up with a

longer email about his request, stating that since Sev­

erson and he had met on January 21, he submitted his

reassignment request and the City Engineering De­

partment had contacted him for an interview.

Patmythes believed that contact was part of the rea­

sonable accommodation reassignment process, but

learned during the actual interview that it was not.

Patmythes further stated that he met the minimum

qualification requirements for a number of job post­

ings, and he requested that “the hiring processes be

held in abeyance while we explore the reasonable ac­

commodation of reassigning me to one of those posi­

tions.” (Id.)

Also on February 23, Severson responded to

Patmythes’ email, apologizing for her delay but ex­

plaining that she had difficulty finding time to speak

to Brad Wirtz and the City Attorney regarding the

modification of the City’s policy on using reassignment

as a reasonable accommodation. (APM 2-22.) She fur­

ther attached the City’s memorandum responding to

his reassignment request, and added:

App. 30

I cannot understand why you would have be­

lieved that your interview with Engineering

was part of an accommodation process. First

of all, as I have indicated on numerous occa­

sions, we have not fully explored the potential

for accommodations in your current position.

Secondly, I had no knowledge of your involve­

ment in that particular hiring process.

{Id. at 1.) In the memorandum, dated February 19,

Severson also stated that the City was denying his re­

quest.

In particular, Severson cited APM 2-22, which had

been modified over time but consistently required the

City to reassign “an employee who, because of a disa­

bility, can no longer perform the essential functions of

his/her current position, with or without reasonable ac­

commodation, unless the employer can show that it

would be an undue hardship.” {Id. at 4.) Severson fur­

ther explained that:

In your situation, we have not yet attempted

to put accommodations in place for your cur­

rent position although we have discussed pos­

sibilities on many occasions. It is at this point

when you have retracted from the process. Up

until recently!,] you provided no medical doc­

umentation that would support the things

that we had discussed as possible accommo­

dations, and the note that you provided most

recently puts one of your conditions at odds

with another in coming up with a possible ac­

commodation.

App. 31

I would very much like to continue exploring,

and hopefully putting into place, some form

of accommodation in your current position

that would allow you to work more comforta­

bly. I still believe that some level of telecom­

muting might be an option worth considering

although we have yet to have a dialogue with

your supervisors regarding any form of ac­

commodation.

(Id. at 5.) Patmythes responded later that day, citing to

“EEOC v. United,” which he believed supported his re­

assignment request. He also stated that the timing of

his interview indicated that it was part of his reassign­

ment request, and that he was very disappointed by

her statement that he retracted from the process.4

On March 15, 2016, Severson emailed Patmythes

(and other employees) asking whether there were any

accommodation needs in the temporary offices. It does

not appear that Patmythes responded. At some point

afterwards, Patmythes was moved to the temporary

space located at 126 S. Hamilton Street, the place that

Severson had described as “terrible.” According to the

City, he worked on the first floor area in a large open

floor plan that had large windows and thus a good

amount of natural light. While he does not provide de­

tails about his work environment on Hamilton Street,

Patmythes claims that he was still denied a healthy

4 Patmythes added that he had communicated his needs us­

ing plain English, which he believed was permissible. (Def.’s Ex.

Q (dkt. #13-12) at 1.)

App. 32

work environment, prompting him to hire an attorney

on March 20, 2015.

In late July of 2015, the City finally received doc­

umentation from a medical provider related to

Patmythes request for an accommodation in the form

of a letter, dated July 23, 2015, from Brook LaChance,

a nurse practitioner with UW Health’s Cystic Fibrosis

Center in Madison, Wisconsin. (Def.’s Ex. O (dkt. #1310).) In that letter, LaChance confirmed that

Patmythes’ cystic fibrosis included the following is­

sues: chronic cough that produces thick mucus, pulmo­

nary lung infections 2-3 times a year, sinus congestion

with frequent infections, chest congestion and short­

ness of breath. LaChance stated that the recommenda­

tions for Patmythes were to “manage his ongoing

symptoms with aggressive airway clearance including

vest and nebulizers, daily exercise, taking oral medica­

tions as prescribed.” LaChance added that “his health

is easily disturbed with poor air quality, temperature

extremes and viral illnesses,” and she concluded the

letter by requesting that the City “continue to work

with Greg and his attorney on reasonable accommoda­

tions to continue his employment.” (Id. )5

5 LaChance did not include any specific recommendations

with respect to whether Patmythes should be working during his

“aggressive airway clearance” regimes, although his health care

providers had indicated that he should not be working during

those periods of time when Patmythes previously requested

FMLA leave.

App. 33

C. Patmythes’ applications to other posi­

tions and evidence of underfilling, tem­

porary and interim hirings

In addition to the position discussed above,

Patmythes applied for several vacant positions, though

again outside the accommodation process. Rather,

those positions were filled through the City’s Civil Ser­

vice Process. First, at the end of 2014, a vacancy arose

in the Department of Civil Rights (“OCR”) for an Equal

Opportunities Investigator/Conciliator 1 position. The

recruiting period for that position ran between October

9 and October 26, 2014. Patmythes and four other City

employees applied and each were interviewed. The

interviews were scheduled for January 9, 2015. Three

City supervisors sat on the interview panel, which

asked each interviewee the same four questions, and

gave each the opportunity to provide the panel with in­

formation they deemed relevant. After the interview,

each panel member independently scored the inter­

viewee’s answers. During the application process,

Patmythes reports being told that he did not “have the

look we want in that position,” but he does not identify

who made the statement or the specific context in

which the comment was made. (Patmythes Aff (dkt.

#26) H 372.)6 Regardless, Patmythes scored the lowest

of all five applicants, and the highest scoring applicant

was hired. Patmythes was notified on February 2,

2015, that he was not selected. At that time, he was

6 The City does not dispute this statement for purposes of

summary judgment only.

App. 34

told that the person hired had prior work experience

as an administrative support staff person.

Second, in January of 2015, Patmythes applied for

a position entitled “Project Manager.” That posting was

initially listed for architects only, but then the City’s

Human Resources department broadened the mini­

mum qualifications to include someone with a con­

struction management background. Patmythes was

initially screened out, but he successfully appealed for

consideration, citing to his industrial education degree

and related experience. The City ultimately received

ten qualified applicants for the position, and all ten

were referred for an interview. Following the inter­

views, however, the Supervisor concluded that none of

the ten applicants met her needs because the job re­

quired more architectural experience than any of the

candidates possessed. Accordingly, the City re-posted

the vacancy in May of 2015 as an “Architect 2/3” posi­

tion. Patmythes did not apply for that position.

Third, in February of 2015, a Police Records Su­

pervisor position opened up. Nine applicants, including

Patmythes, were interviewed, and the applicant who

scored significantly higher than all of the other appli­

cants was hired. Patmythes was not.

Patmythes also asserts that other, non-disabled

employees received the benefit of the City’s practice of

“underfilling” positions or hiring “interim” employees,

offering examples of instances where individuals were

hired on a temporary basis or were “underfilled.” First,

Roger Goodwin was hired as the “Interim Director of

App. 35

Human Resources” for three years. Second, WitzelBehl was hired as a Clerk, even though the position

was posted as “Clerk/Treasurer” Third, Ragland was

hired to lead the Office of Community Services with no

experience in the area. Fourth, Police Chief Koval was

promoted to chief directly from sergeant. However,

Patmythes does not provide evidence of the circum­

stances surrounding any of these hires, including the

process undertaken to fill the positions.7

D. Allegations of hostile work environment

As the administrative clerk for Patmythes’ De­

partment in charge of coordinating benefits, Kris Dick­

ens provided information to the City’s HR Department

to obtain coverage through the City’s disability insur­

ance carrier for Patmythes’ time off. Part of this pro­

cess involved entering Patmythes’ time off using

proper coding, which required Dickens to go back and

forth with HR. On June 5,2014, after Dickens had sev­

eral exchanges with HR, she became frustrated and

said to Patmythes “You know, you and [another em­

ployee] are a real pain in the ass with your leave.”

(Patmythes Aff. (dkt. #26) % 130.) Patmythes claims

Dickens complained to another Zoning Inspector that:

(1) Patmythes was difficult about losing holiday pay for

Memorial Day; (2) “it wasn’t fair that Greg didn’t have

to use up all of his time”; and (3) “employees should

7 Again, the City does not dispute the alleged facts for pur­

poses of summary judgment, instead taking the position that they

are not material.

s'

App. 36

have to use up all of their own time before being able

to use (wage) insurance.” (Id. at <H<R 213-15.)

Patmythes reported this exchange to his supervi­

sors, Tucker and Hank. Tucker suggested that

Patmythes speak to Dickens about it if he wanted. Ac­

cording to the City, Hank suggested that Patmythes

should put his complaint in writing and Hank would

deal with it, while Patmythes claims that Hank re­

sponded that he would not get involved and that

Dickens should “do her fucking job.” (Id. at *][ 455.) Ap­

parently understanding how her comments might be

perceived, Dickens drafted an email to herself that de­

scribed what happened and characterized the ex­

change as expressing frustration with the repeated

back and forth with HR, not with Patmythes’ disability.

Afterwards, Patmythes filed a complaint against

Dickens under the City’s discrimination policy, APM 35. After investigating, the City concluded that Dickens’

comment was not directed at Patmythes’ disability and

did not create a hostile work environment.8 Patmythes

states that the incident had an adverse impact on his

mental health, and that having to work with Dickens

subsequently impeded his therapy.

8 Patmythes alleges one other instance regarding Dickens’

behavior. In October or November 2011, Patmythes overheard

Dickens tell another employee, “There is no reason for him to be

off three weeks.” More generally, Patmythes claims that Dickens

is known for being difficult to work with. It does not appear this

information was provided to or considered by the City.

App. 37

E. Patmythes’ ERD/EEOC cases

i. Case ‘669

As previously described, Patmythe s filed Case ‘669

on April 1, 2015. Patmythes amended that complaint

on January 20, 2016. His complaint includes the fol­

lowing timeline:

•

June 5, 2014: comment by Dickens, and the

subsequent handling by Hank and Tucker.

•

December 5, 2014: Patmythes submitted a re­

quest for reasonable accommodation to Sev­

erson.

•

January 9, 2015: City filled the Investigator/

Conciliator position without considering

Patmythes. During the application process,

Patmythes is informed he “doesn’t have the

look” the City wants, which Patmythes de­

scribes as discrimination based on disability,

gender and race.

•

January 21, 2015: Patmythes submitted a re­

quest for reasonable accommodation to Sev­

erson, and Severson discouraged him from

asking for a transfer because there may be

hard feelings from other employees that also

want the position.

•

January 28, 2015: Leifer told Patmythes that

people with “bad genes” have a duty to avoid

things that made their chronic conditions

worse because it causes health insurance pre­

miums to increase.

App. 38

•

February 20,2015: Patmythes interviewed for

Project Manager position and mentioned his

belief that it was part of the reasonable ac­

commodation process.

•

February 25,2015: Patmythes submitted a re­

quest for accommodation with Severson.

•

March 6, 2015: Project Manager recruitment

terminated by the City, to be reclassified at a

lower pay grade, contrary to the City’s prac­

tice of “underfilling” positions.

•

March 11, 2015: Patmythes interviewed for

positions in Human Resources and he was dis­

criminated against because his accommoda­

tion requests had not been met.

•

March 27, 2015: The City admitted that the

hiring process is in need of reform because of

systemic racism at Madison Metro.

•

March 31, 2015: Patmythes interviewed for

Police Records supervisor, but the panel re­

fused to answer Patmythes’ questions during

his interview.

•

April 1,2015: Patmythes filed ERD and EEOC

complaints.

(Def.’s Exs. A, B (dkt. ##12-1,12-2).)

On April 13, 2016, the ERD issued a “no probable

cause” decision that dismissed Case ‘669. Patmythes

did not appeal the ERD’s dismissal. On August 10,

2016, the EEOC issued a “Dismissal and Notice of

Rights” form that adopted the ERD’s findings and no­

tified Patmythes that he had 90 days to file a federal

App. 39

lawsuit with respect to the allegations in Case 669.

(Def.’s Ex. C (dkt. #12-2).)

ii. Case ‘445

On January 22, 2016, Patmythes filed a second

complaint with the ERD and EEOC. In Case ‘445,

Patmythes alleged that between April 15, and Decem­

ber 16 of 2015, his reasonable accommodation requests

were repeatedly denied. (Def.’s Ex. D (dkt. #12-3) at 57.) As noted above, this case has not been resolved be­

cause Patmythes is in the process of appealing his rea­

sonable accommodation claims. Patmythes filed this

lawsuit on November 9, 2016. In paragraphs 14-56,

Patmythes outlined the claims that he brought in Case

‘669. In paragraphs 13 and 57-71 of his complaint,

Patmythes outlines the allegations that he brought in

Case ‘445.

SUMMARY JUDGMENT OPINION

The City agrees that Patmythes has a disability

and that he is a “qualified individual” for purposes of

the ADA and Rehabilitation Act, but seeks summary

judgment on Patmythes’ claims on four grounds: (1)

the court lacks jurisdiction to consider plaintiff’s alle­

gations related to Case ‘445; (2) no reasonable trier of

fact could find that the City discriminated against

plaintiff based on his disability; (3) no reasonable trier

of fact could find that the City failed to provide him

with a reasonable accommodation for his condition;

and (4) no reasonable trier of fact could find that the

App. 40

City created a hostile work environment based on

plaintiff’s July 2014 incident with Dickens. As to the

first of these arguments, this court plainly lacks juris­

diction to consider plaintiff’s allegations related to his

second ERD/EEOC complaint, referred to above as

Case ‘445. Patmythes does not oppose this argument

specifically; rather, he seeks to have the ALJ, and not

this court, resolve his appeal in that case. Accordingly,

the court will not exercise jurisdiction over Patmythes’

allegations in paragraphs 57-71 of his complaint, fo­

cusing instead on whether a reasonable trier of fact

could conclude on the record before the court on sum­

mary judgment that the City discriminated against

Patmythes on the basis of his disability, failed to pro­

vide him with a reasonable accommodation, or sub­

jected him to a hostile work environment.9

A. Discrimination

The ADA prohibits employers from discriminating

against a qualified individual on the basis of a disabil­

ity. 42 U.S.C. § 12112(a). Historically, to prevail on a

discrimination claim against the City under the ADA,

a plaintiff can proceed under the direct or indirect

method of proof. See Taylor-Novotny v. Health All. Med.

Plans, Inc., 772 F.3d 478, 489 (7th Cir. 2014). More re­

cently, however, the Seventh has moved away from a

rigid application of “the many multifactored tests in

9 In the employment context, the ADA’s standard applies to

Rehabilitation Act claims as well. Brumfield v. City of Chi., 735

F.3d 619, 630 (7th Cir. 2013).

App. 41

employment discrimination cases” and, instead, di­

rected district courts to “decide, when considering the

evidence as a whole, ‘whether the evidence would per­

mit a reasonable factfinder to conclude that the plain­

tiff’s race, ethnicity, sex, religion, or other proscribed

factor caused the discharge.’” Monroe v. Ind. Dep’t of

Transp., 871 F.3d 495, 504 (7th Cir. 2017) (quoting

Ortiz v. Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir.

2016)). Because the parties have organized their argu­

ments consistent with the two methods, the court will

as well, while mindful that the ultimate question is

simply whether plaintiff has presented sufficient evi­

dence from which a reasonable fact finder could con­

clude that defendant discriminated against him

because of his disability.

Under the direct method, he must show that (1) he

is disabled within the meaning of the ADA, (2) he was

qualified to perform the essential functions of the job,

with or without accommodation, and (3) he suffered an

adverse employment action because of his disability.

Bunn v. Khoury Enters., Inc., 753 F.3d 676,683 (7th Cir.

2014). To establish the third prong, plaintiff must show

that his disability was a “but for” cause of the adverse

employment action. Serwatka v. Rockwell Automation,

Inc., 591 F.3d 957, 961-62 (7th Cir. 2010). Plaintiff can

show causation through direct or circumstantial evi­

dence, with circumstantial evidence encompassing,

among other things, suspicious timing and pretext for

the adverse employment action. Bunn, 753 F.3d at 684.

Under the indirect method, plaintiff must estab­

lish a prima facie case of discrimination by showing

App. 42

that (1) he is disabled under the ADA, (2) he was meet­

ing his employer’s legitimate employment expecta­

tions, (3) he suffered an adverse employment action,

and (4) similarly-situated employees without a disabil­

ity were treated more favorably. Id at 685. If plaintiff

establishes a prima facie case, the burden shifts to the

City to present evidence showing a legitimate, nondiscriminatory reason for the employment action. Id. If

the City meets its burden, then Patmythes must sub­

mit evidence that the City’s stated reason is pretextual. Id. Patmythes does not explicitly pursue either

method of proof, but on this record, he cannot avoid

judgment under either.

As an initial matter, Patmythes has offered no

evidence that he was qualified for any of the three po­

sitions, nor that he was even arguably the most quali­

fied. Instead, he suggests that the qualifications are

irrelevant because of the City’s policy of underfilling

positions. Even assuming that plaintiff were qualified

for one of the positions, Patmythes has no evidence

that he was turned down for that position because of

his disability. Instead, he appears to rely on circum­

stantial evidence in the form of statements made by

Severson, Leifer and Dickens related to his disability.

As set forth above, the court will assume for purposes

of summary judgment that: in January of 2015, Sev­

erson told him that other employees would resent him

if he were reassigned because of a disability; around

the same time, Leifer arguably implied that Patmythes

and other who require insurance benefits had “bad

genes,” and thus had an obligation to keep himself

healthy; and in June of 2014, Dickens told him that

App. 43

handling his leave benefits coordination was a “pain in

the ass.”

However, none of this evidence would support a

finding of discriminatory animus in the City’s hiring

decisions. Indeed, Leifer’s and Dickens’ statements are

non-starters because neither were involved in the deci­

sion not to hire Patmythes for any of the positions to

which he applied. See Fleischman v. Cont’l Cas. Co., 698

F.3d 598, 605 (7th Cir. 2012) (“[A] nondecisionmaker’s

animus is not evidence that the employer’s actions

were on account of plaintiff’s age.”). As to Severson’s

statement, she arguably could have placed Patmythes

in one of the three positions sought, and her state­

ments about other employees or supervisors resenting

him, made contemporaneous to her decision not to

reassign him, could fairly be interpreted to be some cir­

cumstantial evidence that her decision was tainted.

Nonetheless, Patmythes himself broke any causal con­

nection between Severson’s apparent reluctance to

place him in a vacant position because of his disability

and the decision not to reassign him. While Severson

repeatedly told Patmythes that he would need to pro­

vide documentation to support his request for reas­

signment, he never actually followed up, even after

Severson asked for the information on multiple occa­

sions. Accordingly, Patmythes’ discrimination claim

fails.

Nor can Patmythes avoid judgment under the in­

direct method. Patmythes can easily meet the first

three elements: he is disabled, the record supports a

finding that he was meeting expectations, and a

App. 44

cognizable adverse employment action under the ADA

is a significant change in employment status, which in­

cludes hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a deci­

sion causing a significant change in benefits. See

Chaudhry v. Nucor-Steel-Ind., 546 F.3d 832, 836 (7th

Cir. 2008) (citing Bell u. E.P.A., 232 F.3d 546, 555 (7th

Cir. 2000)).

The fourth prong is an insurmountable hurdle for

Patmythes because he has not submitted evidence that

there were other, non-disabled employees who were

treated more favorably. To satisfy this element, plain­

tiff would need to “identify a satisfactory comparator

to the court.” Bunn, 753 F.3d at 685 (7th Cir. 2014).

“The inquiry is fact intensive, requiring consideration

of the circumstances as a whole.” Raymond v.

Ameritech Corp., 442 F.3d 600, 610-11 (7th Cir. 2006)

(citing Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d

392, 397 (7th Cir. 2000)). Here, Patmythes claims that

the City discriminated against him on the basis of his

disability in failing to hire him for the Investigator/

Conciliator, Project Manager, and Police Records Su­

pervisor positions. (Id. at

36-39, 45-49, 54.)10 To

10 The City also asserts a statute of limitations defense with

respect to Patmythes’ challenge to his Investigator/Conciliator

position hiring process. To challenge that decision, plaintiff had

to bring a claim with an administrative agency within 300 days

of the event giving rise to the discriminatory act. 42 U.S.C.

§ 12117; 42 U.S.C. § 2000e-5(e)(l). The City points out that

Patmythes received notice that he was not going to be hired for

this position on February 2, 2015, and failed to include this claim

in his initial April 1, 2015, ERD/EEOC complaint. Instead, he

added it to his January 20, 2016, amended complaint. However,

App. 45

support his theory that other, non-disabled employees

were treated more favorably, however, Patmythes de­

scribes instances in which other non-disabled City em­

ployees were hired on an “interim” or temporary basis,

or through the City’s process of “underfilling.” In par­

ticular, he points to the interim hiring of Goodwin, the

underfilling hiring of Witzel-Behl and Ragland, and

the promotion of Koval to chief of police, to suggest that

the City failed to apply its typical hiring practices to

him because of his disability. Yet these examples are

not proper comparators because plaintiff provides no

context for those hiring decisions. Not only are the po­

sitions facially distinct, but plaintiff offers no evidence

as to how the City carried out the hiring and interview

process to fill these other positions, much less evidence

that these other individuals were more or less qualified

than other candidates. Therefore, it would be unrea­

sonable to conclude that Patmythes was “similarly sit­

uated” to these other individuals. Considering all of

this evidence, the court concludes that a reasonable

fact finder could not conclude that defendant was

a plaintiff may amend an EEOC charge “to clarify and amplify

allegations made therein,” not to allege an entirely new theory

that does not relate back to a timely filed original charge.

Fairchild v. Forma Sci., Inc., 147 F.3d 567, 575 (7th Cir. 1998)

(citing 29 C.F.R. § 1601.12(b)). In Patmythes’ original ERC/EEOC

charge, he complained about “promotions” that he did not receive.

Accordingly, when he amended his complaint in January of 2016,

he was arguably only providing greater detail with respect to each

of his failed attempts to apply for a new position, including the

Investigator/Conciliator position, meaning that amendment re­

lates back to the April 2015 original filing date.

App. 46

denied another position within the City because of his

disability.

Even assuming that plaintiff’s examples somehow

got him over the prima facie threshold, the City has

provided undisputed evidence that it had a legitimate

reason for each hiring decision: the hiring processes

involved a panel of interviewers who asked each inter­

viewee the same set of questions; the panel members

scored each interviewee independently; and the indi­

vidual that was hired was the highest scoring inter­

viewee. More specifically, as to the Investigator/

Conciliator position, the person hired had previous

work experience in that City agency, and Patmythes

received the lowest score among all of the applicants.

Similarly, the City decided to change the requirements

of the Project Manager position to include broader ar­

chitectural qualifications, and so it had to restart the

hiring process with new criteria as to all applicants,

not just Patmythes. As a result, Patmythes chose not to

apply for the revised posting. Finally, the City submit­

ted undisputed evidence that Patmythes was not cho­

sen for the Police Records Supervisor position because

there was another applicant who scored significantly

higher than all of the other applicants and had previ­

ously supervisory experience in that area. Neither was

true of Patmythes. Accordingly, even assuming that

Patmythes could show that he was treated differently

than similarly situated, non-disabled employees, a rea­

sonable trier of fact would have to find that the City

had legitimate reasons for making the hiring decisions

in each instance.

App. 47

At least with respect to the Project Manager posi­

tion, Patmythes also contends that the justifications

are pretextual. However, “to show pretext, a plaintiff

must show that (1) the employer’s non-discriminatory

reason was dishonest and (2) the employer’s true rea­

son was based on discriminatory intent.” Stockwell v.

City of Harvey, 597 F.3d 895, 901 (7th Cir. 2010) (quot­

ing Fischer v.Avanade, Inc., 519 F.3d 393, 403 (7th Cir.

2008)). Here, Patmythes claims that during the appli­

cation process, “someone” from the Mayor’s office told

him that he does not have the right “look” for the posi­

tion. However, he does not provide any additional de­

tail about who said it or the context in which this

comment was made, including whether the comment

actually referred to his disability in some way. Other­

wise, his conclusion as to the import of this observation

is based on speculation alone, which is insufficient to

create a factual dispute as to why the highest scoring

candidate was hired. See Hooper v. Proctor Health

Care, Inc., 804 F.3d 846,854 (7th Cir. 2015) (“With only

Hooper’s speculation, we cannot find sufficient evi­

dence to create a question of fact as to whether Proc­

tor’s proffered reason for Hooper’s termination was

pretextual.”) (citing Millbrook v. IBP, Inc., 280 F.3d

1169, 1181 (7th Cir. 2002)); see also Widmar v. Sun

Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014) (holding

that employee failed to show pretext where he only of­

fered speculation instead of identifying inconsistencies

in employer’s reasons for termination). Even more im­

portant for purposes of summary judgment, Patmythes

offers no evidence that the person who said this to

him had any involvement in the hiring process for the

App. 48

position. Accordingly, no reasonable fact finder could

conclude that the City’s reasons for denying him these

positions were pretext for discrimination because of

his disability.

B. Reasonable Accommodation

Under the ADA and Rehabilitation Act, a “reason­

able accommodation” may include “job restructuring,

part-time or modified work schedules, reassignment

to a vacant position,. . . and other similar accommoda­

tions for individuals with disabilities.” 42 U.S.C.

§ 12111(9)(B); 29 C.F.R. pt. 1630, App. § 1630.2(o); see

also EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805

(7th Cir. 2005). To prevail on a failure to accommodate

claim, plaintiff must show that he was a qualified indi­

vidual with a disability, and that defendant was aware

of his disability but failed to reasonably accommodate

it. Bunn, 753 F.3d at 682. Once a covered employer be­

comes aware of an employee’s disability, it must en­

gage in “an ‘interactive process’ to determine the

appropriate accommodation under the circumstances.”

Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693

(7th Cir. 1998). Even if a plaintiff can show that his

disability has not been reasonably accommodated, the

employer “will be liable only if it bears responsibility

for the breakdown of the interactive process.” Sears,

417 F.3d at 805. In such circumstances, “courts should

attempt to isolate the cause of the breakdown and

then assign responsibility.” Beck v. Univ. of Wis. Bd. of

Regents, 75 F.3d 1130,1135 (7th Cir. 1996).

App. 49

Here, Patmythes challenges as unreasonable the

City’s failure to provide him with a healthy work envi­

ronment by (1) providing him a HEPA filter, (2) moving

him to a workspace with a window and a chance for

workplace interaction, or (3) transferring him to an­

other position. The City insists that this claim fails

because it reasonably accommodated plaintiff’s disa­

bility and, even if it did not, plaintiff was indisputably

responsible for the breakdown of the interactive pro­

cess.

i. HEPA filter or different workspace

with better air quality

The City cannot be held liable for Severson’s fail­

ure to provide Patmythes with a HEPA filter. For one,

an employer is not required to provide the particular

accommodation that an employee requests or prefers,

but rather to provide a reasonable accommodation.

Hoppe v. Lewis Univ., 692 F.3d 833,840 (7th Cir. 2012).

Patmythes does not dispute that Severson discussed

his requests for a HEPA filter with him between Sep­

tember 2014 and January 2015, nor that Severson

suggested that Patmythes could consider moving to

another office space. Severson did not rule out the op­

tion of a HEPA filter, and instead she asked him for

medical documentation to confirm his needs. While

Patmythes assured her that he would be providing it,

he never did.

In the meantime, the undisputed records shows that

Severson explained her reservations as to whether a

App. 50

HEPA filter would be effective and offered Patmythes

other options, including using UVGI cleaners or mov­

ing to a different office. Yet Patmythes rejected both

options without explaining (to Severson or the court)

why either would have been inadequate. Eventually, in

January of 2015, Severson expressed frustration that

Patmythes had not provided the medical documenta­

tion requested, and she repeated her requests. When

she finally received a letter from Patmythes’ mental

health care provider, there was no recommendation

about the HEPA filter, and the record shows Severson

attempted to follow the actual recommendation to pro­

vide Patmythes with workplace interaction and natu­

ral light. While Patmythes would make much of

Severson’s statement in January that the temporary

workspace was “terrible,” he does not dispute that

when actually moved to the temporary workspace, he

was allowed to sit in an open area with plenty of natu­

ral light. Given the undisputed evidence that Severson

was never provided with medical guidance on the

claimed need for a HEPA filter and that Severson was

communicating with Patmythes in an effort to gather

the necessary information to accommodate his re­

quests for a workspace with better air quality, while

providing what she could, a reasonable trier of fact

would have to find that Patmythes’ own failure to pro­

vide requested information precluded Severson from

pinpointing the exact nature of his needs, much less

how best to accommodate them. See Tadder v. Bd. of

Regents of Univ. ofWis. Sys., 15 F. Supp. 3d 868, 888

(W.D. Wis. 2014) (finding that employer did not fail

to provide reasonable accommodation where employee

App. 51

failed to provide information from medical providers

related to his requested accommodation).

Similarly, to the extent Patmythes is complaining

about the delay between his first request for accommo­

dation in September of 2014 and January of 2015 when

he first requested reassignment, that argument is also

unavailing. An employer may be held liable for unnec­

essary delays in complying with reasonable accommo­

dation requests, but courts reach that conclusion only

where the record supports a finding that the employer

has not been acting in good faith. See Jay u. Intermet

Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000) (con­

cluding that despite 20-month delay in reassigning

employee, employer was acting in good faith because it

reconsidered reassignment on a weekly basis, kept em­

ployee on medical leave and offered the position as

soon as it became available); Beck u. Univ. of Wis. Bd.

of Regents, 75 F.3d 1130,1134 (7th Cir. 1996) (“A party

that obstructs or delays the interactive process is not

acting in good faith.”). The record does not support a

finding that Severson was acting in bad faith here be­

cause Severson was waiting for medical information.

See Clayborne v. Potter, 448 F. Supp. 2d 185, 192

(D.D.C. 2006) (holding that 12-month delay reasonable

in light of defendant’s efforts, including seeking addi­

tional medical information).

Here, Patmythes again takes issue with Severson

not immediately providing him with the HEPA filter,

but the evidence shows that Patmythes himself was

the bottleneck to progress. He repeatedly ensured

Severson that his care providers would forward the

App. 52

medical information needed to address his concerns

about air quality, and when finally provided, the infor­

mation did not even address his supposed need for a

HEPA filter. Instead, Severson received a simple note

from Patmythes’ nurse practitioner that he be allowed

to work near a window and engage with other co-work­

ers. Even the June 2015 letter from Patmythes’ cystic

fibrosis care team provided no specific recommenda­

tions as to the need for air filters. Instead, that team

simply requested that the City continuing working

with Patmythes. In other words, despite Severson’s re­

peated efforts to obtain it, Patmythes failed to provide

information necessary to craft a more reasonable ac­

commodation to improve his working environment.

ii. Vacant position

While the Court of Appeals for the Seventh Circuit

recognizes reassignment as a reasonable accommoda­

tion, it is appropriate only after the employer has de­

termined that the employee cannot be accommodated

in his or her current position. King v. City of Madison,

550 F.3d 598, 600 (7th Cir. 2008) (“King is correct to

note that the ADA recognizes reassignment to a vacant

position as a potentially reasonable accommodation if

a disabled employee is unable to perform the essential

functions of a job. 42 U.S.C. § 12111(9)(B).”); Dalton v.

Subaru-Isuzu Auto., 141 F.3d 667, 678 (7th Cir. 1998)

(“The option of reassignment is particularly important

when the employee is unable to perform the essential

functions of his or her current job, either with or with­

out accommodation or when accommodation would

App. 53

post an undue hardship for the employer.”). Here, the

City’s reassignment policy, APM2-22, contains this

same principle, providing for reassignment upon a de­

termination that “the employee cannot be reasonably

accommodated in their current position.”

While Patmythes claims that he should have been

reassigned to one of three vacancies, the City was

never able to conclude that he could not be reasonably

accommodated in his Zoning Inspector position.

Patmythes does not deny that Severson was attempt­

ing to collect his medical provider’s recommendations

regarding how best to accommodate his particular

needs. Certainly, the City was aware that Patmythes

was having difficulties with the air quality in his work­

space at the end of 2014 and early 2015, and Severson

was attempting to work with Patmythes to determine

specific steps the City could realistically take to allevi­

ate those issues. At least as of the date that Patmythes

submitted Case ‘669, however, the City could not make

that determination because Patmythes had not pro­

vided specific information from his doctors. Therefore,

judgment in the City’s favor is appropriate because

the record does not support a finding that it failed to

accommodate plaintiff’s request, even construing all

the facts in Patmythes’ favor.

C. Hostile Work Environment

Finally, the City seeks judgment on Patmythes’

claim that he was subjected to a hostile work environ­

ment. While the Court of Appeals for the Seventh

App. 54

Circuit has not decided whether a hostile work envi­

ronment claim is actionable under the ADA or Reha­

bilitation Act, its analysis of such claims suggests it

may be. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594,

603 (7th Cir. 2009) (the incidents described failed to

meet the standard of a hostile work environment

claim). Regardless, if the cause of action exists, it ap­

pears analogous to Title VII hostile work environment

claims, and so the court will analyze this claim under

that framework. See Silk v. City of Chi., 194 F.3d 788,

804 (7th Cir. 1999) (analyzing ADA hostile work envi­

ronment claim, without deciding whether such a claim

exists, under the Title VII framework).

To succeed on a hostile work environment claim,

plaintiff must show that: (1) his work environment was

both objectively and subjectively offensive; (2) the har­

assment was based on his disability; and (3) the con­

duct was sufficiently severe or pervasive so as to alter

the conditions of his employment. See Boss v. Castro,

816 F.3d 910,920 (7th Cir. 2016); Ekstrand v. Sch. Dist.

of Somerset, 583 F.3d 972, 978 (7th Cir. 2009). “An ob­

jectively hostile environment is one that a reasonable

person would find hostile or abusive.” Adusumilli v.

City of Chi., 164 F.3d 353, 361 (7th Cir. 1998) (citing

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

Courts must consider the totality of circumstancing in

evaluating whether a workplace is hostile, including:

the frequency of the discriminatory conduct; its sever­

ity; whether it is physically threatening or humiliat­

ing, or a mere offensive utterance; and whether it

App. 55

unreasonably interferes with an employee’s work per­

formance. Harris, 510 U.S. at 23.

At least for purposes of summary judgment, the

City does not dispute that Patmythes felt subjectively

offended by Dickens’ and Leifer’s comments, and the

court will accept Patmythes’ representation that Dick­

ens’ comments negatively impacted his improvement

in therapy. While the comments Patmythes dealt with

may have been inappropriate, however, the circum­

stances simply do not describe the type of environment

that qualifies as objectively offensive under the factors

set forth by the Supreme Court in Harris. See Perry v.

Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.

1997) (“Not every unpleasant workplace is a hostile

environment.”).

As an initial matter, Patmythes does not claim a

pattern of inappropriate conduct. Instead, there are

two, separate narratives he points to as creating a hos­

tile work environment: (1) Dickens’ statements from

June 2014 that his leave requests were a “pain in the

ass,” as well as Dickens’ contemporaneous complaints

to his coworker; and (2) Leifer’s January 2015 com­

ments implying that Patmythes and others who may

be ill have “bad genes.” In response, Patmythes cor­

rectly points out that a single incident can give rise to

an actionable hostile work environment claim if “suffi­

ciently severe.” Nichols v. Mich. City Plant Planning

Dep’t, 755 F.3d 594, 600-01 (7th Cir. 2014). However,

none of the statements, whether standing alone or con­

sidered together, is sufficiently offensive to support a

finding that he endured a hostile work environment.

App. 56

Specifically, Dickens’ June 2014 statement is not

sufficiently severe to support a finding that he dealt

with a hostile environment. See Ellis v. CCA of Tennes­

see, LLC, 650 F.3d 640, 648 (7th Cir. 2011) (finding

stray comments that included the word “monkey,” and

two incidents of an employee wearing clothing marked

with a confederate flag were insufficient to maintain a

race-based hostile work environment claim); but see

Cerros u. Steel Tech., Inc., 288 F.3d 1040,1047 (7th Cir.

2002) (recognizing that an “unambiguously racial epi­

thet falls on the ‘more severe’ end of the spectrum”).

Certainly, Dickens’ June 2014 comment was rude, but

there is no evidence that she made it in a threatening

way towards Patmythes, or even that she raised her

voice or was physically threatening. Moreover, calling

Patmythes’ leave requests a pain in the ass - even as­

suming it is because of his disability - is far from se­

vere. Likewise, even though Patmythes may have

overheard other comments that Dickens made about

one of his medical leaves shortly after that incident,

the Seventh Circuit’s treatment of harassment claims

strongly suggests verbal harassment was limited to a

handful of overheard statements, rather than any in­

tentionally inflicted, which simply does not rise to the

severe or pervasive standard. See Patt v. Family Health

Sys., 280 F.3d 749, 754 (7th Cir. 2002) (eight genderbased comments over a three-year period too isolated

and sporadic to constitute a hostile work environ­

ment); Ngeunjuntr v. Metro Lift Ins. Co., 146 F.3d 464,

467 (7th Cir. 1998) (isolated incidents outside of em­

ployee’s presence did not create a hostile work environ­

ment).

App. 57

The same is true as to Leifer’s claimed comment.

While the context of the statement is unclear, it can be

fairly characterized as unseemly and insensitive. How­

ever, Leifer’s apparent opinion about how Patmythes

should handle his health care is not so objectively of­

fensive to create a hostile environment. Indeed, the

facts here are readily distinguishable from other iso­

lated acts held to be severe enough to constitute action­

able harassment. See EEOC u. Mgmt. Hosp. of Racine,

Inc., 666 F.3d 422 433 (7th Cir. 2012) (supervisor se­

verely harassed an employee when he stated he

wanted to “fuck her,” she was “kinky” and liked “rough

sex,” and physically groped her buttocks); Smith v.

Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (single inci­

dent of injuring employee’s wrist due to her gender

constituted severe harassment); Lapka v. Chertoff, 517

F.3d 974, 983 (7th Cir. 2008) (allegation of rape suffi­

ciently severe to create a hostile environment).

The same conclusion is necessary when viewing

Patmythes experiences with Dickens and Leifer as a

whole. The comments - made over the course of six

months by two different people - were not severe and

did not pervade his work experience. While Patmythes

claims that Dickens is known for being difficult to work

with, there is no evidence that Patmythes dealt with

either Dickens or Leifer on a regular basis, much less

that they made any other comments arguably impli­

cating his cystic fibrosis. Additionally, the evidence of

record does not suggest that Patmythes’ work perfor­

mance was adversely affected. While his progress in

therapy may have been hampered by Dickens’ lack of

App. 58

sensitivity, there is no evidence or suggestion that

Patmythes was unable to work as a result of those com­

ments.

More importantly, the City cannot be held liable

for this incident because it took prompt steps to correct

Dickens after her comment and Patmythes never even

reported Leifer’s comments, despite knowing he

should. Employers are “strictly liable” for harassment

inflicted by supervisors, but when the harasser is a co­

worker, the employer can assert an affirmative defense

by showing that it: (1) “exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior”; and (2) the employee unreasonably failed to

take advantage of any preventative or corrective op­

portunities that the employer provides. See Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (em­

ployer may escape liability if it took reasonable care to

prevent and promptly correct the offending behavior);

Silk, 194 F.3d at 805 (same). Here, the record shows

that Patmythes reported the incident with Dickens to

his supervisor Hank, and then he submitted an inter­

nal complaint about it pursuant to the City’s policy,

APM 3-5. As to Leifer, Patmythes’ failure to take ad­

vantage of the policy by reporting Leifer - when he

clearly knew about the policy - absolves the City from

liability. Accordingly, as a reasonable trier of fact could

not find that Patmythes was subjected to a hostile

work environment on the evidence of record, summary

judgment will be granted in the City’s favor.

App. 59

ORDER

IT IS ORDERED that:

1)

Plaintiff Gregory Patmythes’ motion for assis­

tance in recruiting counsel (dkt. #7) and mo­

tion to exclude certain evidence (dkt. #27) are

DENIED.

2)

Defendants’ motion for summary judgment

(dkt. #9) is GRANTED as follows: (a) the

claims outlined in Patmythes’ allegations in

paragraphs 5771 of his complaint are DIS­

MISSED WITHOUT PREJUDICE for lack of

subject matter jurisdiction; and (b) the re­

maining claims are DISMISSED WITH

PREJUDICE.

3)

The clerk of court is directed to enter judg­

ment in defendant’s favor and close this case.

Entered this 13th day of June, 2018.

BY THE COURT:

/s/

WILLIAM M. CONLEY

District Judge

App. 60

ELECTRONIC FILING PROCEDURES

FOR THE UNITED STATES DISTRICT COURT FOR THE WEST­

ERN DISTRICT OF WISCONSIN

*

*

*

ELECTRONIC FILING PROCEDURES

IN CIVIL AND CRIMINAL CASES

*

*

*

III. GENERAL GUIDANCE

*

*

*

G. Technical Failures

A Filing User whose filing is made untimely

as the result of a technical failure of the ECF

website may seek appropriate relief from the

court by filing a declaration that the Filing

User was unable to file in a timely manner be­

cause of technical difficulties. The Filing User

should print, if possible, a copy of the error

message received and submit it with the dec­

laration. Known ECF outages will be posted

on the court’s website and announced via email to Filing Users.

Technical problems with the Filing User’s

facilities, such as phone line problems, prob­

lems with the Filing User’s Internet Service

Provider (ISP), hardware or software prob­

lems, do not constitute a technical failure

under these procedures or excuse an un­

timely filing.

A document that could not be timely filed

due to a technical failure of the ECF website

must be filed on the first day the court is

App. 61

open for business following the original fil­

ing deadline.

28 U.S. Code § 452 - Courts always open;

powers unrestricted by expiration of sessions

All courts of the United States shall be

deemed always open for the purpose of filing

proper papers, issuing and returning process,

and making motions and orders.

The continued existence or expiration of a ses­

sion of a court in no way affects the power of

the court to do any act or take any proceeding.

(June 25, 1948, ch. 646, 62 Stat. 907; Pub. L.

88-139, § 2, Oct. 16,1963, 77 Stat. 248.)

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §§ 13 and

302 (Mar. 3, 1911, ch. 231, §§ 9, 189, 36 Stat.

1088, 1143; Mar. 2,1929, ch. 488, § 1, 45 Stat.

1475).

Sections 13 and 302 of title 28, U.S.C., 1940

ed., related only to district courts and the

Court of Customs and Patent Appeals, and

this section has been written to cover all other

courts of the United States.

Other provisions of said section 302 of title 28,

U.S.C., 1940 ed., are incorporated in sections

214, 456, and 604 of this title.

App. 62

The phrase “always open” means “never

closed” and signifies the time when a court

can exercise its functions. With respect to

matters enumerated by statute or rule as to

which the court is “always open,” there is no

time when the court is without power to act.

(Ex parte Branch, 63 Ala. 383, 387.)

Section 13 of title 28, U.S.C., 1940 ed., pro­

vided that “The district courts, as courts of ad­

miralty and as courts of equity, shall be

deemed always open * *

for enumerated

purposes, and that the judge “at chambers or

in the clerk’s office, and in vacation as well as

in term,” may make orders and issue process.

The revised section omits all reference to the

nature of the action or proceeding and enu­

meration of the acts which may be performed

by the court. This is in accord with Rules 45(c)

and 56 of the new Federal Rules of Criminal

Procedure which contain similar provisions

with respect to criminal procedure both in the

courts of appeals and in the district courts.

Rules 6(c) and 77(a) of the Federal Rules of

Civil Procedure contain provisions similar to

the second and first paragraphs, respectively,

of this section with respect to civil actions in

district courts.

App. 63

28 U.S. Code § 2071 - Rule-making power gener­

ally

(a) The Supreme Court and all courts estab­

lished by Act of Congress may from time to time

prescribe rules for the conduct of their business.

Such rules shall be consistent with Acts of Con­

gress and rules of practice and procedure pre­

scribed under section 2072 of this title.

(b) Any rule prescribed by a court, other than the

Supreme Court, under subsection (a) shall be pre­

scribed only after giving appropriate public notice

and an opportunity for comment. Such rule shall

take effect upon the date specified by the prescrib­

ing court and shall have such effect on pending

proceedings as the prescribing court may order.

(c)(1) A rule of a district court prescribed under

subsection (a) shall remain in effect unless modi­

fied or abrogated by the judicial council of the rel­

evant circuit.

(2) Any other rule prescribed by a court other

than the Supreme Court under subsection (a)

shall remain in effect unless modified or abrogated

by the Judicial Conference.

(d) Copies of rules prescribed under subsection

(a) by a district court shall be furnished to the ju­

dicial council, and copies of all rules prescribed by

a court other than the Supreme Court under sub­

section (a) shall be furnished to the Director of the

Administrative Office of the United States Courts

and made available to the public.

(e) If the prescribing court determines that there

is an immediate need for a rule, such court may

App. 64

proceed under this section without public notice

and opportunity for comment, but such court shall

promptly thereafter afford such notice and oppor­

tunity for comment.

(f) No rule may be prescribed by a district court

other than under this section.

(June 25,1948, ch. 646,62 Stat. 961; May 24,1949,

ch. 139, § 102, 63 Stat. 104; Pub. L. 100-702, title

IV, § 403(a)(1), Nov. 19,1988,102 Stat. 4650.)

28 U.S. Code § 2072 - Rules of procedure and ev­

idence; power to prescribe

(a) The Supreme Court shall have the power to

prescribe general rules of practice and procedure

and rules of evidence for cases in the United

States district courts (including proceedings be­

fore magistrate judges thereof) and courts of ap­

peals.

(b) Such rules shall not abridge, enlarge or mod­

ify any substantive right. All laws in conflict with

such rules shall be of no further force or effect af­

ter such rules have taken effect.

(c) Such rules may define when a ruling of a dis­

trict court is final for the purposes of appeal under

section 1291 of this title.

(Added Pub. L. 100-702, title IV, § 401(a), Nov. 19,

1988,102 Stat. 4648; amended Pub. L. 101-650, title

III, §§ 315,321, Dec. 1,1990,104 Stat. 5115,5117.)

t

App. 65

Federal Rules of Civil Procedure (FRCP) Rule

6. Computing and Extending Time; Time for Mo­

tion Papers

(3) Inaccessibility of the Clerk’s Office. Unless

the court orders otherwise, if the clerk’s office is

inaccessible:

(A) on the last day for filing under Rule 6(a)(1),

then the time for filing is extended to the first ac­

cessible day that is not a Saturday, Sunday, or le­

gal holiday; or

(B) during the last hour for filing under Rule

6(a)(2), then the time for filing is extended to the

same time on the first accessible day that is not a

Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is

set by a statute, local rule, or court order, the last

day ends:

(A) for electronic filing, at midnight in the court’s

time zone; and

(B) for filing by other means, when the clerk’s of­

fice is scheduled to close.

(5) “Next Day” Defined. The “next day” is deter­

mined by continuing to count forward when the

period is measured after an event and backward

when measured before an event.

(d) Additional Time After Certain Kinds of Ser­

vice. When a party may or must act within a spec­

ified time after being served and service is made

App. 66

under Rule 5(b)(2)(C) (mail), (D) (leaving with the

clerk), or (F) (other means consented to), 3 days

are added after the period would otherwise expire

under Rule 6(a).

Notes of Advisory Committee on Rules—1985

Amendment

Rule 6(a) is amended to acknowledge that weather

conditions or other events may render the clerk’s

office inaccessible one or more days. Parties who

are obliged to file something with the court during

that period should not be penalized if they cannot

do so. The amendment conforms to changes made

in Federal Rule of Criminal Procedure 45 (a), ef­

fective August 1,1982.

Committee Notes on Rules—2001 Amendment

The additional three days provided by Rule 6(e) is

extended to the means of service authorized by the

new paragraph (D) added to Rule 5(b), including with the consent of the person served - service by

electronic or other means. The three-day addition

is provided as well for service on a person with no

known address by leaving a copy with the clerk of

the court.

App. 67

Changes Made After Publication and Comments.

Proposed Rule 6(e) is the same as the “alternative

proposal” that was published in August 1999.

Committee Notes on Rules—2005 Amendment

Rule 6(e) is amended to remove any doubt as to the

method for extending the time to respond after

service by mail, leaving with the clerk of court,

electronic means, or other means consented to by

the party served. Three days are added after the

prescribed period otherwise expires under Rule

6(a).

Changes Made After Publication and Comment.

Changes were made to clarify further the method

of counting the three days added after service un­

der Rule 5(b)(2)(B), (C), or (D).

Committee Notes on Rules—2009 Amendment

28 U.S.C. §452 provides that “[a]ll courts of the

United States shall be deemed always open for the

purpose of filing proper papers, issuing and re­

turning process, and making motions and orders.”

A corresponding provision exists in Rule 77(a).

Some courts have held that these provisions

App. 68

permit an after-hours filing by handing the papers

to an appropriate official. See, e.g., Casalduc v.

Diaz, 117 F.2d 915,917 (1st Cir. 1941). Subdivision

(a)(4) does not address the effect of the statute on

the question of after-hours filing; instead, the rule

is designed to deal with filings in the ordinary

course without regard to Section 452.

Committee Notes on Rules—2016 Amendment

Rule 6(d) is amended to remove service by elec­

tronic means under Rule 5(b)(2)(E) from the

modes of service that allow 3 added days to act af­

ter being served.

Rule 5(b)(2) was amended in 2001 to provide for

service by electronic means. Although electronic

transmission seemed virtually instantaneous

even then, electronic service was included in the

modes of service that allow 3 added days to act af­

ter being served. There were concerns that the

transmission might be delayed for some time, and

particular concerns that incompatible systems

might make it difficult or impossible to open at­

tachments. Those concerns have been substan­

tially alleviated by advances in technology and in

widespread skill in using electronic transmission.

A parallel reason for allowing the 3 added days

was that electronic service was authorized only

with the consent of the person to be served. Con­

cerns about the reliability of electronic transmis­

sion might have led to refusals of consent; the 3

App. 69

added days were calculated to alleviate these con­

cerns.

Diminution of the concerns that prompted the de­

cision to allow the 3 added days for electronic

transmission is not the only reason for discarding

this indulgence. Many rules have been changed

to ease the task of computing time by adopting 7-,

14 -, 21 -, and 28- day periods that allow “day - of

the -week” counting. Adding 3 days at the end com­

plicated the counting, and increased the occasions

for further complication by invoking the provi­

sions that apply when the last day is a Saturday,

Sunday, or legal holiday.

Electronic service after business hours, or just be­

fore or during a weekend or holiday, may result in

a practical reduction in the time available to re­

spond. Extensions of time may be warranted to

prevent prejudice.

Eliminating Rule 5(b) subparagraph (2)(E) from

the modes of service that allow 3 added days

means that the 3 added days cannot be retained

by consenting to service by electronic means. Con­

sent to electronic service in registering for elec­

tronic case filing, for example, does not count as

consent to service “by any other means” of delivery

under subparagraph (F).

What is now Rule 6(d) was amended in 2005 “to

remove any doubt as to the method for calculating

the time to respond after service by mail, leaving

with the clerk of court, electronic means, or by

other means consented to by the party served.” A

potential ambiguity was created by substituting

“after service” for the earlier references to acting

App. 70

after service “upon the party” if a paper or notice

“is served upon the party” by the specified means.

“[A]fter service” could be read to refer not only to

a party that has been served but also to a party

that has made service. That reading would mean

that a party who is allowed a specified time to act

after making service can extend the time by choos­

ing one of the means of service specified in the

rule, something that was never intended by the

original rule or the amendment. Rules setting a

time to act after making service include Rules

14(a)(1), 15(a)(1)(A), and 38(b)(1). “[A]fter being

served” is substituted for “after service” to dispel

any possible misreading.

Federal Rules of Civil Procedure FRCP Rule 77.

Conducting Business; Clerk’s Authority; Notice

of an Order or Judgment

(a) When Court Is Open. Every district court is

considered always open for filing any paper, issu­

ing and returning process, making a motion, or en­

tering an order.

(d) Serving Notice of an Order or Judgment.

(1) Service. Immediately after entering an order

or judgment, the clerk must serve notice of the en­

try, as provided in Rule 5(b), on each party who is

not in default for failing to appear. The clerk must

record the service on the docket. A party also may

serve notice of the entry as provided in Rule 5(b).

App. 71

(2) Time to Appeal Not Affected by Lack of No­

tice. Lack of notice of the entry does not affect the

time for appeal or relieve - or authorize the court

to relieve - a party for failing to appeal within the

time allowed, except as allowed by Federal Rule of

Appellate Procedure (4)(a).

Federal Rules of Civil Procedure FRCP Rule 83.

Rules by District Courts; Judge’s Directives

(a) Local Rules.

(1) In General. After giving public notice and an

opportunity for comment, a district court, acting

by a majority of its district judges, may adopt and

amend rules governing its practice. A local rule

must be consistent with - but not duplicate - fed­

eral statutes and rules adopted under 28 U.S.C.

§§2072 and 2075, and must conform to any uni­

form numbering system prescribed by the Judicial

Conference of the United States. A local rule takes

effect on the date specified by the district court

and remains in effect unless amended by the court

or abrogated by the judicial council of the circuit.

Copies of rules and amendments must, on their

adoption, be furnished to the judicial council and

the Administrative Office of the United States

Courts and be made available to the public.

(2) Requirement of Form. A local rule imposing a

requirement of form must not be enforced in a way

that causes a party to lose any right because of a

nonwillful failure to comply.

App. 72

(b) Procedure When There Is No Controlling

Law. A judge may regulate practice in any manner

consistent with federal law, rules adopted under

28 U.S.C. §§2072 and 2075, and the district’s local

rules. No sanction or other disadvantage may be

imposed for noncompliance with any requirement

not in federal law, federal rules, or the local rules

unless the alleged violator has been furnished in

the particular case with actual notice of the re­

quirement.

Federal Rules of Appellate Procedure: Rule 3.

Appeal as of Right - How Taken

(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal

by naming each one in the caption or body of the

notice, but an attorney representing more than

one party may describe those parties with such

terms as “all plaintiffs,” “the defendants,” “the

plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment, order, or part

thereof being appealed; and

(C) name the court to which the appeal is taken.

(2) A pro se notice of appeal is considered filed on

behalf of the signer and the signer’s spouse and

minor children (if they are parties), unless the no­

tice clearly indicates otherwise.

y

App. 73

*

*

*

(4) An appeal must not be dismissed for infor­

mality of form or title of the notice of appeal, or for

failure to name a party whose intent to appeal is

otherwise clear from the notice.

*

*

*

*

App. 74

U.S. District Court

Western District of Wisconsin (Madison)

CIVIL DOCKET FOR CASE #: 3:16-cv-00738-wmc

Patmythes, Gregory v. The

City of Madison

Assigned to: District Judge

William M. Conley

Referred to: Magistrate

Judge Stephen L. Crocker

Case in other court: Seventh

Circuit Court of Appeals,

20-02223

Cause: 42:1983 Civil Rights

Act

Date Filed: 11/09/2016

Date Terminated:

06/13/2018

Jury Demand: Plaintiff

Nature of Suit: 442

Civil Rights: Jobs

Jurisdiction: Federal

Question

Plaintiff

represented by

Gregory Patmythes

3614 Stonebridge Dr.

Madison, WI 53719

Email:

gjpatmythes@hotmail com

PRO SE

Gregory Patmythes

V.

Defendant

The City of Madison

represented by

Steven C. Zach

Boardman & Clark LLP

1 South Pinckney

Street, 4th Floor

P.O. Box 927

Madison, WI 53701-0927

608-257-9521x736

Fax: 608-327-1436

Email: szach@

boardmanlawfirm.com

App. 75

LEAD ATTORNEY

ATTORNEY TO BE

NOTICED

Date Filed

#

Docket Text

*

*

*

06/13/2018

44 ORDER denying plaintiffs 27 Mo­

tion to remove and exclude unripe

items and documentary evidence

from this proceeding. Defendants’

motion for summary judgment (dkt.

# 9) is GRANTED as follows: (a) the

claims outlined in Patmythes’ alle­

gations in paragraphs 57-71 of his

complaint are DISMISSED WITH­

OUT PREJUDICE for lack of sub­

ject matter jurisdiction; and (b) the

remaining claims are DISMISSED

WITH PREJUDICE.The clerk of

court is directed to enter judgment

in defendant’s favor and close this

case. Signed by District Judge Wil­

liam M Conley on 6/13/2018. (jef),(ps)

(Entered: 06/13/2018)

06/13/2018

45 JUDGMENT entered in favor of de­

fendant dismissing the case. Signed

by Peter A. Oppeneer, Clerk of Court

on 6/13/2018. (jef),(ps) (Entered:

06/13/2018)

App. 76

07/12/2018

46 Plaintiff’s Motion: Rules 59 and 60,

by Plaintiff Gregory Patmythes.

(nln),(ps) (Main Document 46 re­

placed on 7/13/2018: Affidavit inad­

vertently uploaded instead of motion.

Uploaded correct motion document

received from plaintiff via email.)

(nln). Modified on 7/13/2018 (nln).

(Entered: 07/12/2018)

07/12/2018

47 Brief in Support of Plaintiff’s 46

Motion: Rules 59 and 60, by Plain­

tiff Gregory Patmythes. (nln),(ps)

(Entered: 07/12/2018)

07/12/2018

48 Affidavit of Gregory Patmythes in

Suport of 46 Rules 59 and 60 Mo­

tion. (Attachments:

# 1 Exhibit A - 20171102 Byron

Bishop Bias Accusation E Mail Fe­

licia Jones appeal email,

# 2 Exhibit B - 2004 Inspection Unit

PSD Operating Budget 28,

# 3 Exhibit C - 20161101 Air Qual­

ity Test,

# 4 Exhibit D-20160324 Boardman

ERD) (nln),(ps) (Entered: 07/12/2018)

07/12/2018

49 Declaration of Technical Failure

(Attachments: # 1 Exhibit) (Patmythes,

Gregory),(ps) (Entered: 07/12/2018)

App. 77

Federal Rules of Civil Procedure (FRCP) Rule

5. Serving and Filing Pleadings and Other Pa­

pers

(a) Service: When Required.

(1) In General. Unless these rules provide other­

wise, each of the following papers must be served

on every party:

*

*

(E) a written notice, appearance, demand, or

offer of judgment, or any similar paper.

(b) Service: How Made.

*

*

(2) Service in General. A paper is served under

this rule by:

*

*

*

(C) mailing it to the person's last known ad­

dress—in which event service is complete

upon mailing;

(d) Filing.

*

*

*

(4) Acceptance by the Clerk. The clerk must not

refuse to file a paper solely because it is not in the

form prescribed by these rules or by a local rule or

practice.

App. 78

Notes of Advisory Committee on Rules—1996

Amendment

The role of the Judicial Conference standards is clari­

fied by specifying that the standards are to govern

technical matters. Technical standards can provide na­

tionwide uniformity, enabling ready use of electronic

filing without pausing to adjust for the otherwise inev­

itable variations among local rules. Judicial Confer­

ence adoption of technical standards should prove

superior to specification in these rules.

Electronic technology has advanced with great speed.

The process of adopting Judicial Conference standards

should prove speedier and more flexible in determining

the time for the first uniform standards, in adjusting

standards at appropriate intervals, and in sparing the

Supreme Court and Congress the need to consider

technological details. Until Judicial Conference stand­

ards are adopted, however, uniformity will occur only

to the extent that local rules deliberately seek to copy

other local rules.

It is anticipated that Judicial Conference standards

will govern such technical specifications as data for­

matting, speed of transmission, means to transmit

copies of supporting documents, and security of com­

munication. Perhaps more important, standards must

be established to assure proper maintenance and in­

tegrity of the record and to provide appropriate access

and retrieval mechanisms. Local rules must address

App. 79

these issues until Judicial Conference standards are

adopted.

*

*

*

The separate reference to filing by facsimile transmis­

sion is deleted. Facsimile transmission continues to be

included as an electronic means.

Committee Notes on Rules—2001 Amendment

*

*

*

Rule 6(e) is amended to allow additional time to re­

spond when service is made under Rule 5(b)(2)(D). The

additional time does not relieve a party who consents

to service under Rule 5(b)(2)(D) of the responsibilities

to monitor the facility designated for receiving service

and to provide prompt notice of any address change.