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Watt v. Brown County

United States District Court, E.D. Wisconsin

September 23, 2016

KARI L. WATT, Plaintiff,
BROWN COUNTY, Defendant.


          William C. Griesbach, Chief Judge United States District Judge

         Plaintiff 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. 56(f).


         Beginning 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.

         Watt 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 below:

         (Image Omitted)

         Telecommunication 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 telephone.

         Around 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.

         After 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.

         Watt's 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.


         A. Summary Judgment Standard

         Summary 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 Cir. 2004).

         B. Plaintiff's Motion for Leave to File a Surreply

         As an 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 ...

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