United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
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).
turning to the undisputed facts, a few preliminary matters
Scope of Plaintiff's Claims
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.
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
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.
Parties' Proposed Findings of Fact and Evidentiary
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.
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.
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.
review of plaintiff's deposition testimony and the
evidence in the record, I find the following facts to be
material and undisputed.
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
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, ...