United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge
From 1980 until 2011, plaintiff Steven Hafermann worked as a correctional officer at Kettle Moraine Correctional Institution. In fall 2010, defendant Robert Humphreys (the warden of the prison), moved plaintiff to a position that required him to work third shift. Plaintiff says that he was unable to maintain that type of schedule because of his sleep apnea and heart problems and that defendants violated his rights under the Rehabilitation Act and the equal protection clause by continuing to require him to work third shift even after he submitted a letter from his health care providers and even after a first shift position for which he was qualified opened up.
Defendants have filed a motion for summary judgment on all of plaintiff’s claims. Dkt. #19. They argue that they cannot be held liable for failing to accommodate plaintiff under the Rehabilitation Act because he was not disabled within the meaning of the Act and because he failed to provide adequate medical documentation showing that any disability he had rendered him unable to work third shift. With respect to plaintiff’s claim under the equal protection clause, defendants say that plaintiff did not adequately plead a claim of intentional discrimination. Because I conclude that defendants have not shown that they are entitled to judgment as a matter of law on any of the issues raised in their summary judgment materials, I am denying their motion in full.
From the parties’ proposed findings of fact and the record, I find that the following facts are undisputed.
In 1980, plaintiff Steven Hafermann began working at the Kettle Moraine Correctional Institution as a correctional officer. From 1994 until 2011, plaintiff was a captain. Defendant Robert Humphreys was the warden of the prison during the events relevant to this case.
In January 2010, plaintiff received a diagnosis of “severe obstructive sleep apnea with severe hypoxemia.” Plaintiff’s sleep apnea was severe because it caused plaintiff to stop breathing during sleep more than 30 times an hour, leading him to gasp for breath and preventing him from sustaining deep sleep. Plaintiff’s hypoxemia was severe because the sleep apnea sometimes lowered his blood oxygen levels to under 80 percent. Low oxygen levels are a concern because they can lead to a heart attack, stroke, hypertension and atrial fibrillation. This was a special concern for plaintiff because he suffers from coronary disease and has a history of mitral valve repair and hypertension. At the time, plaintiff did not inform anyone at work of his conditions.
In September 2010, plaintiff was the captain for “first shift training and investigations.” Defendant Humphreys changed plaintiff’s position to “first shift vacation/holiday/relief, ” which, despite the position’s title, required plaintiff to work all three shifts. At the same time, Brian Foster, the deputy warden, informed plaintiff that he was being assigned to third shifts exclusively until a replacement could be found for the third shift supervisor position. (The parties dispute the reason for these changes and the extent to which the changes were temporary, but I need not resolve the disputes because plaintiff is not challenging these decisions as discriminatory and he does not argue that the reasons for the decision are relevant to his claims.) First shift was from 6:30 a.m. to 2:30 p.m.; second shift was from 2:30 p.m. to 10:30 p.m.; and third shift was from 10:30 p.m. to 6:30 a.m.
Plaintiff told Foster that he could not work third shift because he suffered from sleep apnea. In response, Foster asked plaintiff to provide medical documentation. Plaintiff agreed to do so. In the meantime, plaintiff was required to work third shift.
On September 17, 2010, plaintiff “submitted” a letter from his nurse practioner, but the letter was “received by [the prison] on September 20 or September 21, 2010.” Dfts.’ PFOF ¶ 73, dkt. #34. The letter stated:
It has come to my attention that Mr. Hafermann’s place of employment will be changing his work schedule to now include night shift work. We know that night shift work is known to be a risk factor for our patients, particularly those who have a known history of cardiac health conditions. Mr. Hafermann has been treating at the Heart and Lung Center and has been our patient in pulmonology for his significant problem of obstructive sleep apnea and hypoxia during sleep. He has achieved excellent treatment and is doing an excellent job with the use of his CPAP device. We are very pleased with his progress as it is protective of his cardiac condition. Our concern is that he would not be able to sleep during the day and this could jeopardize his cardiac status. Our cardiology department has also expressed concern as we know that working a night shift is detrimental to our patients health in general. We do ask that he be scheduled on shifts that do not include the night shift.
In response to this letter, Humphreys asked plaintiff for “more information.” Dfts.’ PFOF ¶ 78, dkt. #34. (Defendants do not say whether they told plaintiff what they believed was insufficient about the nurse practitioner’s letter or what additional information they needed.) Plaintiff was assigned to work first and second shift until a scheduled vacation beginning on September 24, 2010.
On October 1, 2010, defendants sent plaintiff a questionnaire for plaintiff’s health care providers to complete. The questionnaire included the following questions:
1. Does Mr. Hafermann have a physical impairment that substantially limits a major life activity?
2. Is the impairment expected to resolve in time or is it predicted to be long term and/or ongoing?
3. What are the recommended physical activity limitations?
4. Based on review of the position description and the description of the work environment [provided with the questionnaire], can Mr. Hafermann perform the essential functions of a Supervising Officer 2-Captain with or without a reasonable accommodation?
When plaintiff returned to work on October 19, 2010, he had not yet returned the questionnaire to defendants. As a result, plaintiff was assigned to work third shift again. Plaintiff experienced difficulties working on third shift; he felt very tired and ill and had a hard time concentrating.
On November 1, 2010, plaintiff returned the medical questionnaire to human resources. In response to the first question, plaintiff’s health care providers wrote that plaintiff’s sleep apnea made him “unable to sleep during the day” but also that he “needs time to adapt to sleeping during the day.” In response to the second question regarding the duration of plaintiff’s impairment, the providers answered, “not known-possibly may adapt to sleeping during the day.” In response to the question whether plaintiff could perform his job with or without a reasonable accommodation, the providers marked both “yes” and “no.” Next to “yes, ” the providers wrote that “he may be able to if he has some ...