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Clemens v. Speer

United States District Court, W.D. Wisconsin

June 21, 2017

ROBERT M. SPEER, Acting Secretary of the Army, Defendants.


          WILLIAM M. CONLEY District Judge

         Plaintiff Joseph P. Clemens claims that the United States Army subjected him to a hostile work environment, failed to accommodate his disability and retaliated against him while he was employed at Fort McCoy.[1] Before the court is defendant's motion to dismiss the complaint for failure to state a claim upon which relief may be granted. (Dkt. #30.) For the reasons set forth below, the motion will be granted with respect to plaintiff's hostile work environment claim, but will be denied in all other respects. Also before the court is plaintiff's motion for assistance in recruiting counsel. (Dkt. #38.) That motion will be denied without prejudice.


         A. The Parties

         Between 1993 and 2011, plaintiff Joseph Clemens worked off and on at Fort McCoy, a military and training center for the United States Army located in Monroe County, Wisconsin. In December 2008, he was promoted to Supervisory Public Safety Dispatcher and worked in the Central 911 Dispatch Center for the Director of Emergency Services at Fort McCoy. His job duties included management and assignment of work; receiving and evaluating 911 calls; providing emergency medical dispatching assistance; monitoring the status of police, fire and medical units; referring non-emergency callers to appropriate agencies; and maintaining reports on the use of reporting systems. Clemens' direct supervisor was the Director of Emergency Services Mark Fritsche.

         Clemens initially named the “Department of the Army, ” as well as two former secretaries of the Army, as defendants in his amended complaint. However, the only proper defendant for claims of employment discrimination under the Rehabilitation Act is the head of the agency accused of having discriminated against the defendant. See Hamm v. Runyon, 51 F.3d 721, 722 n.1 (7th Cir. 1995). As the Acting Secretary of the Army, therefore, Robert M. Speer has been substituted as the appropriate defendant in this case.

         B. Clemens Suffers a Stroke

         On March 11, 2011, Clemens suffered a stroke, which required immediate medical leave, impaired his speech and prevented him from driving. By May 2011, Clemens had not yet recovered and he spoke by phone with Robert Stapel, the Chief of Police at Fort McCoy, to discuss the need for extended medical leave and accommodation.

         On May 19, Clemens formally requested and was approved for extended leave. Around this time, Clemens also requested advance leave and to be placed on the Army's “leave donation program.” Both requests were granted.

         C. Consideration of Accommodation

         On June 13, 2011, Chief Stapel wrote to Clemens concerning “limitations you may have due to a medical condition.” The letter requested “current, valid documentation in order for [Stapel] to make employment decisions.” On June 21, Clemens' physician, Dr. Lev-Weissberg, provided a medical evaluation at the Army's request. The Army specifically asked Dr. Lev-Weissberg to “[i]dentify specific accommodations that are required, if any, that would allow the employee to perform the essential functions of his position as described in the attached job description.” In reply, Dr. Lev-Weissberg wrote: “Perhaps text to voice.”

         Clemens was also seen and treated by Dr. Timothy Mikesell of Advocate Medical Group in Park Ridge, Illinois. On June 24, Dr. Mikesell provided a medical evaluation to the Army indicating that he could not predict when he would recover fully, but that Clemens may be able to work in a position that did not require “significant talking.”

         Clemens alleges that at no time did Chief Stapel, Director Fritsche or any other Army employee discuss relocation or reassignment to another position as a possible accommodation. They also did not discuss (1) what his qualifications for reassignment were or (2) whether there were any positions available that would not require significant talking.

         D. Clemens Receives Poor Performance Evaluations

         In June 2011, while Clemens was still on leave, he received a “midpoint performance review” completed by Chief Stapel, rather than his direct supervisor Fritsche who was in a better position to evaluate his performance. The “midpoint performance review” gave Clemens three “failing” ratings out of five total performance objectives. The review also gave an overall “unsuccessful” report, and highlighted specific failings in areas that Clemens had previously indicated were outside of his position description. Before his stroke, Clemens' job performance had consistently been rated by his supervisors at or above expectations.

         E. Clemens is Terminated

         On October 18 and November 7, 2011, Clemens wrote letters to United States Senator Richard Durbin for the state of Illinois relating to the Army's threatened “adverse employment actions” that were to be taken against him. The letter alleged misconduct and unlawful action on the part of the Army. Clemens alleges that his supervisors were “generally aware” of his letters to Senator Durbin.

         On October 31, 2011, the same day Clemens exhausted his available leave, Clemens received a letter from Chief Stapel proposing to terminate Clemens' employment “for physical inability to perform the duties of” the position of Supervisory Public Safety Dispatcher.

         By November 2011, Clemens still had not returned to work, but was given an “annual performance review, ” purportedly completed by both Stapel and Fritsche. Like Clemens' midpoint review, the annual review gave him three “failing” ratings out of five and gave him an overall “unsuccessful” report.

         Clemens was officially terminated on December 30, 2011.


         Clemens raises three claims of disability discrimination in his amended complaint: (1) failure to provide a reasonable accommodation; (2) retaliation for seeking a reasonable accommodation and writing to Senator Durbin; and (3) hostile work environment. These claims are all governed by the Rehabilitation Act, 29 U.S.C. § 791, et seq., which provides the remedy for federal employees alleging disability discrimination.[3] Defendant moves to dismiss plaintiff's claims on three principal grounds: (1) failure to state a reasonable accommodation claim; (2) failure to state a retaliation claim; and (3) ...

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