United States District Court, W.D. Wisconsin
JOSEPH P. CLEMENS, Plaintiff,
ROBERT M. SPEER, Acting Secretary of the Army, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
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. 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.
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.
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.
Clemens Suffers a Stroke
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
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.
Consideration of Accommodation
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.”
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.”
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.
Clemens Receives Poor Performance Evaluations
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.
Clemens is Terminated
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
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.
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.
was officially terminated on December 30, 2011.
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. 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) ...