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Hendon v. Wisconsin Bell, Inc.

United States District Court, E.D. Wisconsin

April 19, 2018

ROXANNE HENDON, Plaintiff,
v.
WISCONSIN BELL, INC., Defendant.

          DECISION AND ORDER

          LYNN ADELMAN United States District Judge

         Roxanne Hendon alleges that her former employer, Wisconsin Bell, Inc., failed to reasonably accommodate her disability, in violation of the Americans with Disabilities Act (“ADA”). Before me now is Wisconsin Bell's motion for summary judgment. See Fed. R. Civ. P. 56.

         I. BACKGROUND

         Between June 2001 and August 2009, Hendon worked for Wisconsin Bell, which is part of AT&T. At all times during her employment, Hendon was a member of the Communication Workers of America, and the terms of her employment were governed by a collective bargaining agreement between the company and the union. Def. Prop. Finding of Fact (“PFOF”) ¶ 4. In 2005, Hendon was diagnosed with bipolar affective disorder. Since her diagnosis, Hendon has received treatment from a psychiatrist and psychologist, both of whom have offices in Milwaukee.

         Hendon began her employment at Wisconsin Bell as a customer service representative in Milwaukee, Wisconsin. In 2006, Hendon's position was eliminated, but she was able to transfer to a different position within the company located in Waukesha, Wisconsin. In May 2008, Hendon learned that her position was being “surplused.” A surplus is a reduction in the workforce and is governed by the collective bargaining agreement. Once a union employee like Hendon is identified as being part of a surplus, he or she may attempt to find a new position in the company by, for example, filling an open position. The process of placing surplused employees into new positions is governed by the collective bargaining agreement. The parties agree that, under the collective bargaining agreement, Wisconsin Bell “has virtually no discretion in assigning jobs to surplused union employees.” Def. PFOF ¶ 9.

         Following the surplus in 2008, Hendon was able to transfer to a position in Janesville, Wisconsin. As part of the transfer, Hendon moved to Beloit, Wisconsin. While she lived in Beloit, Hendon traveled approximately 75 miles from Beloit to Milwaukee for psychotherapy appointments approximately once a month.

         In December 2008, Hendon learned that her new position in Janesville was also being surplused. Hendon again sought to be transferred to a new position within the company. This time, Hendon was offered and accepted a position in Appleton, Wisconsin. However, on March 13, 2009-two days after accepting the Appleton position-Hendon requested short-term disability benefits. At this point, Hendon began to communicate with AT&T's “integrated disability center, ” which administers employee requests for disability benefits and job accommodations. Hendon's request for short-term disability benefits was approved.

         On April 16, 2009, while she was off work and receiving disability benefits, Hendon called the disability center to request a job reassignment to Milwaukee. To support her request for a disability-related reassignment, Hendon provided the disability center with a letter from her psychologist recommending that Hendon be allowed to live and work in the Milwaukee area. The letter stated that Hendon needed to be closer to family members who lived in Milwaukee, that Hendon needed to live closer to her psychologist and psychiatrist in Milwaukee, and that Hendon was taking medications that caused drowsiness and prevented her from driving more than 15 to 30 minutes at a time.

         At the time Hendon made her request for a reassignment to Milwaukee, the collective bargaining agreement with Hendon's union was about to expire, and Wisconsin Bell was preparing for a potential strike. As part of its preparations for the strike, the company was fielding requests by management employees for reassignment to “work stoppage” positions for the duration of any strike. In these reassignments, a management employee would be temporarily placed in a position left vacant by a striking union employee. When Hendon called to request reassignment to Milwaukee, the disability representative understood her to be requesting a work-stoppage assignment, and the representative processed the request accordingly. Def. PFOF ¶ 36.[1] But Hendon was a member of the union, not a management employee, and therefore she was not eligible for a work-stoppage reassignment, as in the event of a work stoppage she would be on strike.

         On April 22, 2009, the disability representative sent Hendon a letter informing her that, in the event of a work stoppage, she would be reassigned to a customer-service position in Milwaukee. Def. PFOF ¶ 45 (the letter appears in the record at ECF No. 29- 3). The letter also informed Hendon that if she believed that her work restrictions affected her ability to perform the essential functions of her “regular, non-work stoppage assignment, ” she would have to separately discuss that fact with her current supervisor. ECF No. 29-3. Soon after sending this letter, the disability representative learned from Hendon's supervisor that Hendon was not a management employee and thus was not eligible for a work-stoppage reassignment. Def. PFOF ¶ 49. The disability representative sent Hendon an email informing her that the letter she received was based on an error. Def. PFOF ¶ 50 (the email appears in the record at ECF No. 29-4). The representative informed Hendon that she now realized that Hendon's request for an accommodation related to her usual and customary job duties and not for a work-stoppage reassignment. The representative informed Hendon that to obtain such an accommodation, she needed to “follow up through [her] current disability case.” ECF No. 29-4.

         Following the representative's direction, Hendon contacted the disability center and requested, through her pending disability case, a job reassignment to Milwaukee. This time, a different representative from the disability center denied Hendon's request on the ground that it was based on Hendon's inability to drive from Milwaukee to Appleton. The representative determined that driving was not an essential function of Hendon's current position, and that therefore she did not need an accommodation to perform her job. On June 19, 2009, the representative informed Hendon that her request was denied “because it fell outside the job accommodation process.” Def. PFOF ¶ 54. Wisconsin Bell contends-and Hendon does not dispute-that, even if Hendon's request for a reassignment had not been denied on the ground that her inability to commute more than 30 minutes did not relate to the essential functions of her job, her request would have been denied on the ground that the seniority rules of the collective bargaining agreement prevented the company from transferring her to any vacant positions in Milwaukee. Def. PFOF ¶ 55.

         Hendon remained off work, collecting disability benefits, for most of the period from March 13, 2009 to July 21, 2009. On July 22, 2009, Hendon commuted from Milwaukee to her job in Appleton. The next day, she requested to go back on disability leave. On August 5, 2009, the disability center approved Hendon's request for additional disability benefits through August 25, 2009. However, the company later informed Hendon that her disability benefits would end as of August 26, 2009, and that she would have to return to work on August 31, 2009. Hendon did not return to work on that date, and for that reason Wisconsin Bell terminated her employment.

         In August 2009, Hendon filed an administrative claim with the Wisconsin Department of Workforce Development, alleging that Wisconsin Bell failed to reasonably accommodate her disability. After exhausting her administrative remedies, Hendon filed the present action.

         II. ...


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