Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kerner v. Georgia-Pacific Wood Product, LLC

United States District Court, W.D. Wisconsin

October 18, 2017

KAREN KERNER, Plaintiff,



         Pro se plaintiff Karen Kerner is suing her former employer, defendant Georgia-Pacific Wood Product, LLC for allegedly subjecting her to a hostile work environment and then terminating her because of a disability that she suffered as a result of hand and wrist injuries sustained on the job. Now before the court are the parties' cross motions for summary judgment. Dkt. ##36, 41. I am denying both motions because I conclude that there are disputed issues of material fact that must be resolved by a jury. Fed.R.Civ.P. 56(a).

         Before turning to the undisputed facts, a few preliminary matters require discussion.


         A. Scope of Plaintiff's Claims

         At the outset, it is necessary to clarify the scope of plaintiff's discrimination claims. As discussed in the September 27, 2016 order denying defendant's motion to dismiss, I understood plaintiff to be suing defendant for allegedly subjecting her to a hostile work environment and then terminating her because of her disability. Dkt. #20 at 1. My understanding of plaintiff's claims was based on the allegations of plaintiff's complaint, as well as the complaint she filed with Wisconsin's Equal Rights Division. Dkt. #39-4. It appeared from defendant's motion for summary judgment that it understood plaintiff to be bringing claims of disability discrimination and hostile work environment. However, in her own motion for summary judgment, plaintiff argues that in addition to her disability discrimination claims, she is bringing claims under Title VII of the Civil Rights Act based on sex and pregnancy discrimination and retaliation. Dkt. #42 at 1. Many of plaintiff's proposed findings of fact and arguments relate to alleged sex and pregnancy discrimination.

         Before a plaintiff may file suit for employment discrimination under Title VII, she must file a timely administrative complaint. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001). In Wisconsin, a plaintiff has 300 days from the alleged discriminatory act to file a complaint with the Equal Employment Opportunity Commission or the state Equal Rights Division. 42 U.S.C. § 2000e-5(e); Johnson v. J.B. Hunt Transport, Inc., 280 F.3d 1125, 1128-29 (7th Cir. 2002). A plaintiff's failure to file a timely administrative complaint bars her suit. Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 921 (7th Cir. 2007).

         Plaintiff has not filed any complaint with the EEOC or the Equal Rights Division asserting retaliation, sex or pregnancy discrimination. Rather, the only administrative complaint she filed concerned disability discrimination. Dkt. #39-4. Therefore, plaintiff may not pursue her retaliation, sex or pregnancy discrimination claims. I will not discuss further plaintiff's arguments or proposed findings of fact that relate solely to those claims.

         B. Parties' Proposed Findings of Fact and Evidentiary Submissions

         Both parties submitted proposed findings of fact. Defendant criticizes plaintiff's submissions on the ground that she failed to comply with this court's summary judgment procedures. In particular, plaintiff combined her proposed findings of fact with her legal brief, dkt. #42, rather than filing a separate document for her proposed facts as set forth in the procedures provided to plaintiff in the pretrial conference order, dkt. #24. Additionally, many of plaintiff's proposed findings of fact are actually legal arguments. However, in light of plaintiff's pro se status, I have considered all of plaintiff's factual propositions that relate to her disability discrimination claims and are fairly supported by evidence in the record. However, I have disregarded any of the plaintiff's exhibits and factual propositions that are irrelevant to her disability discrimination claims.

         Unfortunately, defendant's own factual submissions do little to help clarify the record and provide context for the actions and decisions relevant to plaintiff's claims. Surprisingly, defendant chose not to submit any of its own evidence, such as declarations from the relevant decisionmakers explaining the basis for their decision to terminate plaintiff. Instead, defendant relies entirely on plaintiff's own deposition testimony to support its motion for summary judgment. However, many of defendant's citations to plaintiff's deposition testimony do not actually provide support for defendant's factual propositions. For example, defendant proposes as fact that “there was never a time when the company failed to accommodate [plaintiff's] physical restrictions.” DPFOF, dkt. #37, ¶ 18. But plaintiff's deposition testimony does not support this factual proposition. Plaintiff testified that her supervisor and coworkers refused on several occasions to assist her in completing tasks she struggled with because of her disability. Plt.'s Dep., dkt. #39, at 63, 76-77. Similarly, defendant proposes as fact that it attempted to “contact plaintiff on numerous occasions about job openings” and told plaintiff “to call back with a time she could meet.” DPFOF, dkt. #37, ¶¶ 8, 12. Again, plaintiff's deposition testimony does not support defendant's proposed facts. Plaintiff testified that she attempted to call defendant numerous times and that defendant never called her back. Plt.'s Dep., dkt. #39, at 104-108. As for defendant's “communications” about job openings, plaintiff testified that these notices were not particular to her, but were actually job postings sent to all employees as a requirement of the collective bargaining agreement. Id. at 132-34.

         Several more of defendant's proposed findings of fact are based on unfair or unsupported characterizations of plaintiff's deposition testimony. Therefore, I disregarded the majority of defendant's proposed findings of fact and instead reviewed plaintiff's deposition transcript and the exhibits she submitted.

         From my review of plaintiff's deposition testimony and the evidence in the record, I find the following facts to be material and undisputed.


         Plaintiff Karen Kerner began working for defendant Georgia-Pacific Wood Products LLC, at a fiber mill in Phillips, Wisconsin, in March 2005. She was part of a union that was party to a collective bargaining agreement with defendant. In July 2012, she fractured her finger at work and was placed on medical restrictions.

         In October 2012, plaintiff was given a diagnosis of bilateral carpal tunnel syndrome and chronic regional pain syndrome in both hands and wrists. She was placed on additional medical restrictions. At the time, plaintiff worked as second shift lead relief operator at the mill, which meant that she was responsible for certain operations when other employees were on break. Her position required her to clean, check computers, gauges, pressures and waxes, and operate the refiner and humidifier if necessary. Her position also required her to crawl under machines and climb ladders. Because of her carpal tunnel and chronic regional pain syndrome, plaintiff had “light duty” medical restrictions, which meant she could not perform all of the tasks associated with her position, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.