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Whitaker v. Wisconsin Department of Health Services

United States Court of Appeals, Seventh Circuit

February 27, 2017

Joyce Whitaker, Plaintiff-Appellant,
v.
Wisconsin Department of Health Services, Defendant-Appellee.

          Argued November 29, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cv-00938-LA - Lynn Adelman, Judge.

          Before Bauer, Flaum, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Plaintiff 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 judgment.

         I. Factual and Procedural Background

         A. Employment History and Disability Accommodation

         On appeal from a grant of summary judgment, we accept as true the evidence offered by the non-moving party, and we draw all reasonable inferences in that party's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff Joyce 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.

         In 2009, the Wisconsin legislature directed the Wisconsin Department of Health Services to assume administration of Milwaukee County's public assistance program. 2009 Wis.Act. 15, § 22, codified at Wis.Stat. § 49.825. Whitaker 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.

         The 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.

         B. Consecutive Leaves of Absence

         In the summer of 2010, Whitaker took the first of several consecutive leaves of absence. She never returned to work 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.

         On August 27, 2010, Whitaker requested two weeks of continuous leave under the Family and Medical Leave Act (FMLA) due to her "recurrent back pain." The Department approved her request and set her return date for September 10, 2010. Then, on September 8, Whitaker requested 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 leave.

         On 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.) ...


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