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Battle v. Milwaukee County

United States District Court, E.D. Wisconsin

March 2, 2016



J.P. Stadtmueller U.S. District Judge

On June 8, 2015, the plaintiff, Sherron R. Battle (“Battle”), filed a pro se complaint alleging that she was terminated from her employment at the Milwaukee County Behavior Health Division (“BHD”) because of her disability and race. (Docket #1). She also sought leave to proceed in forma pauperis. (Docket #1). However, because that complaint did not state a claim upon which relief could be granted (Docket #3), Battle, with the assistance of counsel, filed an amended complaint (Docket #4), which was also dismissed because it named a non-suable entity as a defendant. (Docket #6). On September 8, 2015, Battle cured this defect by naming Milwaukee County in a second amended complaint. (Docket #7).

Upon the screening of Battle’s second amended complaint pursuant to 18 U.S.C. § 1915, the Court granted Battle’s motion to proceed in forma pauperis. (Docket #8). In addition, the Court allowed Battle to proceed on: (1) a failure to accommodate claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(b)(5)(A); and (2) a race discrimination claim under Title VII, 42 U.S.C. § 2000e-2(a)(1). (Docket #8).

The defendant, Milwaukee County, has moved to dismiss Battle’s claims on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Docket #14). That motion is now ripe for adjudication. (See Docket #16, #20, #21).

As described more fully below, [1] the Court must construe Milwaukee County’s motion as one for summary judgment. See Fed. R. Civ. P. 12(d). Under that standard, the Court will grant Milwaukee County’s motion with respect to Battle’s Title VII claim, and will deny Milwaukee County’s motion with respect to Battle’s ADA claim. (Docket #14).


In May of 2008, Battle was diagnosed with Type II diabetes. (Docket #7 ¶ 5). Two years later, she began employment with BHD as a certified nursing assistant. (Docket #7 ¶ 3). Battle claims that she disclosed her medical condition to Milwaukee County on a pre-employment medical evaluation form. (Docket #7 ¶ 7). On that form, it states that Battle checked her blood sugar once per day and took a pill for her diabetes. (Docket #15, Ex. 1 at 2). Despite being provided the opportunity on the form, Battle did not request any “work restrictions” or any “accommodations” based on her diabetes. (Docket #15, Ex. 1 at 1-3).

Nonetheless, Battle alleges that at various times between June of 2011 and August 2012 she told “multiple” colleagues and her immediate supervisor, nurse Jim, that she “might occasionally need to take breaks, check her blood sugar level and eat when she became dizzy or lightheaded.” (Docket #7 ¶¶ 8-9; Docket #20, Ex. 1 ¶ 6). In response, nurse Jim allegedly told Battle “just to tell him whenever [she] needed to eat or to take a break.” (Docket #20, Ex. 1 ¶ 6).

On August 23, 2014, Battle was given the task of escorting a patient to the Froedtert Eye Institute. (Docket #7 ¶ 10). The patient was a 72-year-old visually impaired female with a seizure disorder. (Docket #1, Ex. 3 at 8, 12, 48, 78). This patient presented both a fall risk and an elopement risk. (Docket #1, Ex. 3 at 8, 12, 48, 78).

At some point during the patient’s eye appointment, Battle began to feel sick and dizzy. (Docket #7 ¶ 11; Docket #1, Ex. 4 at 9-10). Upon feeling sick and dizzy, Battle ate hard candy to stabilize her blood sugar. (Docket #1, Ex. 4 at 10). Battle then claims to have immediately proceeded to transport the patient, who was in a wheelchair with a lap buddy and chair alarm, to the Froedtert cafeteria so that she could order food. (Docket #1 ¶ 11; Docket #1, Ex. 3 at 12, 78; Docket #1, Ex. 4 at 10-11). The cafeteria is in a separate building about five blocks from the Froedtert Eye Institute. (Docket #1, Ex. 3 at 8, 18, 78).

While at the cafeteria, Battle left the patient sleeping at a table and proceeded to the Cafeteria Grill. (Docket #7 ¶ 11). Battle alleges that the patient was in view at all times (Docket #7 ¶ 11) and that her need for food was a “medical necessity” (Docket #7 ¶ 14). During this time, Battle did not call BHD, but instead ate her food and then returned with the patient after finishing the meal. (Docket #1, Ex. 4 at 11).

Following this incident, Battle was suspended for five days. (Docket #7 ¶ 13). She claimed, however, that she did not violate work rules and that BHD was not consistent in enforcing those rules. (Docket #7 ¶¶ 14-15). Rather, she claims that she was fired based on her race and because BHD failed to accommodate her diabetes. (Docket #7 ¶¶17-22).

On August 27, 2012, BHD filed with the Milwaukee County Personnel Review Board (“PRB”) Written Charges for Discharge against Battle for violating Milwaukee County Civil Service Rules. (Docket #1, Ex. 3 at 18) (outlining the following charges: (1) “[v]iolations of rules or practices relating to safety”; (2) “[r]efusing or failing to comply with departmental work rules, policies or procedures”; (3) “[f]ailure or inability to perform the duties of assigned position”; (4) “[s]ubstandard or careless job performance”; and (5) “[e]ngaging in personal activities during working hours.”). On March 19, 2013, the PRB held a disciplinary hearing, at which Battle was represented by counsel. (Docket #1, Ex. 3 at 72-80). At that hearing, the PRB heard three disciplinary matters involving Battle: (1) a 2-day suspension filed on May 29, 2012. based on Battle’s failure to renew her certification; (2) a 5-day suspension filed on July 7, 2012, based on Battle’s failure to properly monitor a one-on-one patient; and (3) the Written Charges for Discharge filed on August 27, 2012, based on Battle’s failure to properly monitor a one-on-one patient. (Docket #1, Ex. 3 at 72-80). After hearing the cases, the PRB concluded that the evidence presented was sufficient to sustain the allegations in each case and imposed the recommended discipline, which resulted in Battle’s discharge. (Docket #1, Ex. 3 at 78-80).

Acting pro se, Battle appealed the PRB’s decision on a writ of certiorari in Milwaukee County Circuit Court Case No. 2013-CV-011710. (Docket #1, Ex. 3 at 9-10). Milwaukee County intervened in the writ to defend the PRB’s decision. (Docket #1, Ex. 3 at 37-51). The Honorable Daniel A. Noonan, Circuit Court Judge, denied the writ and affirmed the PRB’s decision to issue the 2-day suspension and ...

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