United States District Court, E.D. Wisconsin
KARI L. WATT, Plaintiff,
BROWN COUNTY, Defendant.
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Kari Watt filed this employment discrimination action against
Defendant Brown County, alleging that Brown County
intentionally discriminated against her on the basis of her
disability, a right rotator cuff tear. More specifically,
Plaintiff alleges that Defendant failed to reasonably
accommodate her disability and terminated her in reckless
disregard for her federally protected rights under the
Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq., and the Americans with Disabilities
Act Amendments Act of 2008 (ADAAA). This Court has
jurisdiction over this matter pursuant to 28 U.S.C.
§§ 1331 & 1343. This case is now before the
Court on Defendant's motion for summary judgment. ECF No.
15. Though Plaintiff has not filed a motion for summary
judgment, she suggests in her brief in opposition that this
Court should grant summary judgment in her favor pursuant to
Fed.R.Civ.P. 56(f). Also pending before this Court is
Plaintiff's motion for leave to file a surreply in
opposition to Brown County's motion for summary judgment.
ECF No. 36. For the reasons that follow, Plaintiff's
motion for leave to file a surreply will be granted,
Defendant's motion for summary judgment will be only
partially granted, and the Court will decline to grant
summary judgment for Plaintiff pursuant to Fed.R.Civ.P.
in May, 1998, Plaintiff Kari Watt worked for Ashwaubenon
Public Safety as a Public Safety Telecommunicator. Watt's
position was absorbed into Defendant Brown County in October
2010 after Ashwaubenon Public Safety merged with Defendant.
Watt's duties in Defendant's 911 Center included
receiving calls for emergency services via 911 and non-911
lines and dispatching police, fire, and emergency calls via
electronic and radio dispatch equipment. Watt's
employment with Defendant ceased when Defendant terminated
her employment on April 2, 2013.
performed her duties as a Telecommunication Operator with
Defendant at a two-tiered workstation. A workstation similar
to the one Plaintiff worked from is depicted in Photograph 1
Operators did not have assigned workstations. Instead, they
used the available workstations depending upon shift
assignments. The workstations have two height-adjustable
tiers which may be lowered or raised at the discretion of the
individual Telecommunication Operator. The lower (front) tier
contains buttons for controlling the heights of the tiers, a
computer keyboard, a mouse, and a keypad for the telephone.
The second (back) tier holds the four computer monitors,
which include three call screens and a touchscreen monitor
for the telephone. The telephone monitor is the only
touchscreen. Telecommunication Operators have the ability to
use either the touchscreen monitor or the keypad to use the
February or March of 2012 Watt was diagnosed with a rotator
cuff tear in her right shoulder. Watt underwent surgeries for
her recurrent rotator cuff tears on March 9, 2012, October 1,
2012, and April 9, 2013. After her first surgery Watt was off
work from March 9, 2012, to May 30, 2012, and was paid short
term disability (STD) benefits for 83 days. Beginning on
September 27, 2012, Watt began missing work due to her second
surgery. Watt was paid STD benefits from September 30, 2012
to January 6, 2013, for a total of 99 days. On January 7,
2013, Watt returned to work with significant medical
restrictions. She could only work four hours per day and
could not use her right arm. Watt used STD to offset her lost
income due to her reduced work hours during this period.
her second surgery, Watt did not return to her
Telecommunication Operator position, but instead was assigned
light-duty work consisting of developing a training manual
and updating systems manuals. On January 8, 2013, Watt was
medically cleared to use both hands to write and type, though
her other restrictions remained. On March 8, 2013, Watt was
cleared to work six hours a day. On April 2, 2013, Watt was
removed from payroll and terminated. On that same day Watt
was given a letter explaining the reasons for her
termination. The letter stated that Watt was being terminated
because she had exhausted her 180 days of STD and was unable
to work full-time without restrictions. Brown County's
STD policy provides coverage for a maximum of 180 calendar
days. ECF No. 24-1. Though Brown County will not force an
employee to file for long term disability benefits, if the
employee cannot return to work at the end of the six-month
STD period, the employee is removed from payroll.
third surgery took place on April 9, 2013, rendering her
unable to work until April 24, 2013. Watt was cleared for
one-handed work on April 24, 2013, and by July 3, 2013, Watt
was able to use both arms (though she was restricted from
performing lifting above waist level with her right arm). By
September 24, 2013, Watt was only restricted in her ability
to lift weight and by November 4, 2013, Watt was cleared to
return to work without any restrictions. Watt applied to be
rehired for a Telecommunication Operator position in August
2013 but her application for employment was denied.
Summary Judgment Standard
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56.; see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp.
1458, 1460-61 (E.D. Wis.1991). “Material facts”
are those under the applicable substantive law that
“might affect the outcome of the suit.” See
Anderson, 477 U.S. at 248. A dispute over
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the court will
view the facts in the light most favorable to the non-moving
parties. Crull v. Sunderman, 384 F.3d 453, 460 (7th
Plaintiff's Motion for Leave to File a Surreply
initial matter, Plaintiff's motion for leave to file a
surreply in opposition to Defendant's motion for summary
judgment (ECF No. 36) will be granted. “The decision to
permit the filing of a surreply is purely discretionary and
should generally be allowed only for valid reasons, such as
when the movant raises new arguments in a reply brief.”
Meraz-Camacho v. United States, 417 F. App'x
558, 559 (7th Cir. 2011); see Schmidt v. Eagle Waste
& Recycling, Inc., 599 F.3d 626, 631 n.2 (7th Cir.
2010). Here, Plaintiff has met her burden for leave to file a
surreply because Defendant's reply brief cited to
evidence that was not even in existence at the time Defendant
filed its motion for summary judgment. ECF No. 31-3; see
also ECF Nos. 32-1, 32-2, 32-3, 32-4, 32-5, 32-6.
Defendant's request for an opportunity ...