November 29, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 2:13-cv-00938-LA - Lynn Adelman,
Bauer, Flaum, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Joyce Whitaker worked for the Wisconsin Department of Health
Services. The Department fired Whitaker when she did not
return to work after exhausting her unpaid statutory and
contractual medical leave. Whitaker sued, claiming that the
Department failed to accommodate her disability and
terminated her employment in violation of the Rehabilitation
Act. The district court granted summary judgment in favor of
the Department on several grounds. We agree with the district
court that Whitaker failed to establish that she was an
"otherwise qualified" employee, as required by the
Rehabilitation Act, and we affirm the grant of summary
Factual and Procedural Background
Employment History and Disability Accommodation
appeal from a grant of summary judgment, we accept as true
the evidence offered by the non-moving party, and we draw all
reasonable inferences in that party's favor. Zerante
v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff
Joyce Whitaker first started working for Milwaukee County in
2001. She initially worked as a corrections officer, but
after suffering a back injury in 2005, she transitioned to
other positions with the County. She ultimately became an
economic support specialist in the Income Maintenance
Program, which manages Milwaukee's applications for
public assistance. Whitaker's responsibilities included
processing applications for benefits, answering phone calls,
and general case management.
2009, the Wisconsin legislature directed the Wisconsin
Department of Health Services to assume administration of
Milwaukee County's public assistance program. 2009
Wis.Act. 15, § 22, codified at Wis.Stat. § 49.825.
Whitaker continued in her position, where she worked on
behalf of the County but was under the supervision of the
Department of Health Services. The Department had authority
to make employment decisions regarding Whitaker, Wis.Stat.
§ 49.825(3)(b)(1), and it made the termination decision
that she challenges in this suit.
Department was aware of Whitaker's disability at least as
early as 2009. On December 8, 2009, Whitaker filed a
disability form seeking an accommodation for her chronic back
pain. She requested permission to stand and stretch for five
minutes once every thirty minutes during the workday. The
Department approved her request.
Consecutive Leaves of Absence
summer of 2010, Whitaker took the first of several
consecutive leaves of absence. She never returned to work
before she was fired in November 2010. During those months,
Whitaker requested and received a number of extensions until
she had exhausted several types of leave that were available
to her. At times she made clear that she was requesting leave
due to her disability. At other times it was less clear why
she requested leave. The events unfolded as follows.
August 27, 2010, Whitaker requested two weeks of continuous
leave under the Family and Medical Leave Act (FMLA) due to
her "recurrent back pain." The Department approved
her request and set her return date for September 10, 2010.
Then, on September 8, Whitaker requested additional FMLA
leave until December 27, 2010 to take care of a family member
and because of her medical condition. The Department
authorized leave through October 18, 2010, but informed
Whitaker that her FMLA leave for the year would be exhausted
at that point. The Department advised Whitaker that she
could, however, request an unpaid leave of absence for up to
30 more days under section 2.24 of her contract: "Leaves
of absence without pay [not] exceeding 30 calendar days may
be granted for good reason to any employee with the approval
of their [sic] department head or designee .... Request for
such leaves shall be made by the employee as far as possible
in advance of the date on which such leave is to begin."
The Department also explained the process for requesting that
October 18, Whitaker submitted a request for contractual
leave without pay through December 28, 2010. This time her
request said that she sought leave to "take care of
[her] ill father" and due to her "own personal
illness." It did not mention her back condition
specifically. The Department approved her contractual leave
until November 5, 2010, but noted that it "will not be
granting any additional extensions of this leave" and
Whitaker was "expected to return to work on Monday,
November 8, 2010." (Emphasis in original.) ...