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Patmythes v. City of Madison

United States District Court, W.D. Wisconsin

June 13, 2018




         Pro se plaintiff Gregory Patmythes suffers from cystic fibrosis, a life threatening disease requiring extensive medical care. While he remains an employee of defendant, the City of Madison (“the City”), Patmythes brings this action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and § 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”), as amended, 29 U.S.C. § 794, claiming that the City: (1) discriminated against him on the basis of his disability by “deliberately and intentionally eliminating only his position of employment” and refusing to transfer him to a different position for which he was qualified; (2) failed to provide reasonable accommodations to enable him to manage his cystic fibrosis symptoms better; and (3) subjected him to a hostile work environment because of his disability.

         Pending before the court is the City's motion for summary judgment (dkt. #9), as well as Patmythes' motion for assistance in recruiting counsel (dkt. #7) and motion to exclude certain evidence (dkt. #27). For reasons explained in this opinion, the court will deny Patmythes' request for assistance in recruiting counsel while granting his motion to exclude in part and denying it in part. Because the evidence of record, even when viewed in Patmythes' favor, does not support a finding that the City violated his rights under the ADA or Rehabilitation Act, the court will also grant the City's motion for summary judgment.



         A. Motion for assistance in recruiting counsel (dkt. #7)

         Patmythes requests that the court recruit counsel on his behalf because he has recently been diagnosed with a type of arthritis associated with his cystic fibrosis, and he suffers from infections attributed to his condition, as well as anxiety and depression. Patmythes also represents that he has reached out to multiple law firms, each of whom have declined. Unfortunately, the starting point for any request for appointment of counsel in civil cases is that there is no such right. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Rather, courts may grant motions for assistance in recruiting counsel where a party meets several requirements. Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010). Here, Patmythes has established that (1) he is unable to afford counsel and (2) he has made reasonable efforts to find a lawyer on his own but has been unsuccessful.

         Still, plaintiff's motion turns on his ability to represent himself. The operative question is not whether a lawyer will do a better job than Patmythes -- that is almost always the case. Instead, the question is whether this is a case in which it appears from the record that the legal and factual difficulties exceed the plaintiff's ability to prosecute it on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). In responding to the motion for summary judgment, Patmythes submitted his own lengthy affidavit, along with numerous documents related to his employment and statements by other City employees. While the admissibility of some of these filings is questionable, he has demonstrated an awareness of the issues relevant to his claims and the ability to gather substantial evidence to support his claims. Furthermore, his briefs are clearly written and, while acknowledging that his arguments at times rely on facts that do not bear directly on his claim in this lawsuit, Patmythes explains that he wanted to provide additional information for context. Substantively, Patmythes cites to relevant authorities and argues his position under the proper standard. More generally, Patmythes has been engaged in this lawsuit: he meets deadlines and apprises the court when he is unavailable. Accordingly, while the court does not underestimate how difficult handling this lawsuit may be for Patmythes, he has done a more than adequate job representing himself through summary judgment, and so his motion will be denied.

         B. Motion to exclude certain evidence (dkt. #27)

         Patmythes moves to exclude certain evidence that the City submitted in support of its motion for summary judgment. In particular, he seeks to exclude: (1) the City's documentary evidence because the citations to the exhibits lack a page and paragraph designation; and (2) several of defendant's proposed findings of fact (“DPFOF”) and documents concern events occurring after April 1, 2015. Patmythes' first request will be denied. The City's citations to certain of the exhibits generally did not require a page and paragraph number. In particular, the court has reviewed the City's citations and corresponding evidence, finding the proposed fact support by the materials as cited.[1]

         As to his latter request, Patmythes states that the facts and documents related to events after April 1, 2015, should be excluded because that was the date he filed his complaint with the State of Wisconsin Equal Rights Division (“ERD”), and the United States Equal Employment Opportunities Commission (“EEOC”). See ERD No. 201500823/EEOC No. 26G201500669C (“Case ‘669”). He specifically asks the court to exclude or limit the DPFOF ¶¶ 7, 8, 25- 29, 31- 34, 36- 39, and 64-66. The City agrees that materials beyond Case ‘669 are not properly before the court, but explains that Patmythes' complaint and filings in this case have included information not directly related to Case ‘669, which is why its proposed findings of fact include a broader range of facts. Therefore, the City agrees to the proposed exclusion of some of its findings, but not others, requiring the court to address them in turn.

         First, the City points out that even though his claim in this lawsuit relates to Case ‘669, paragraphs 57-71 of his complaint contain allegations related to Patmythes' ongoing ERC/EEOC complaint. See ERD No. CR201503529/EEOC No. 26G201600445C (“Case ‘445”). In Case ‘445, Patmythes alleged that between April 15 and December 16, 2015, his reasonable accommodation requests were repeatedly denied. In particular, Patmythes alleges that: (1) a women's leadership program discriminated against him on the basis of disability and gender; (2) the City did not respond to his July 23, 2015, submission from his cystic fibrosis care team related to reasonable accommodations; and (3) the City had not complied with his request to work up to three hours per day from home. (Def.'s Ex. D (dkt. #12-3) at 5-7.) The ERD issued a “no probable cause” decision regarding Patmythes' disability allegations and a “probable cause” decision with respect to his sole allegation based on gender. While Patmythes appealed the “no probable cause” findings related to the disability allegations, and those findings were certified for a probable cause hearing, Patmythes subsequently requested they be held in abeyance due to ongoing health issues. Accordingly, the EEOC has not issued a determination with respect to the allegations Patmythes set forth in Case ‘445, and the court considers them here only as helpful in context.

         Second, the City agrees that several of its proposed findings of fact should be excluded, but asks that some to which Patmythes objects be considered nevertheless because they relate to Case ‘669 and not Case ‘445. Specifically, the City takes the position that if the court agrees it lacks jurisdiction to address issues beyond the purview of Case ‘669, DPFOF ¶¶ 25-27 and 29-38 should be excluded because they relate to other accommodation requests not encapsulated in Case ‘669. Even more specifically, the parties seem to agree that: ¶¶ 25-27, 29-31, and ¶¶ 36-38 all relate to Patmythes' leave of absence; and ¶¶ 32-35 relate to his request that he be allowed to work at home. Patmythes agrees, replying that he does not want this court to resolve any issues that the Administrative Law Judge (“ALJ”) currently handling his ERD appeal could resolve.

         Third, the City nevertheless asks that the court deem DPFOF ¶¶ 7-8 relevant to this lawsuit because those paragraphs merely outline Case ‘445, which informs what issues are properly before the ALJ. The court agrees and will not exclude those paragraphs from consideration. Additionally, the City explains why DPFOF ¶¶ 28, 39, and 64-66 should be considered, pointing out that Patmythes amended Case ‘669 on January 20, 2016, to include multiple accommodation allegations. (Def's Ex. B (dkt. #12-2).) Therefore, the City asserts that this court has jurisdiction over the accommodation-related issues to which DPFOF ¶¶ 28, 39, and 64-66 refer.

         Indeed, paragraph 28 describes a June 23, 2015, letter the City received from Patmythes' health care provider related to his health care needs; paragraph 38 outlines the timeframe of Patmythes' use of leave; and paragraphs 64-66 describe how the City handled a job posting.

         Each of these facts are relevant, or at least provide context, to Patmythes' claims that are properly before the court. Accordingly, the court agrees that this lawsuit should be limited to the claims Patmythes raised in Case ‘669, and it will not consider DPFOF ¶¶ 25-27 and 29-38 (as well as corresponding Exhibits Q, R, S, T, U and V) for purposes of summary judgment, and will only reference these facts as needed for context.



         Consistent with Patmythes' position in his motion to exclude, the City also objects to a large number of Patmythes' proposed findings of fact as irrelevant to the claims properly before the court in this lawsuit, because they pertain to issues beyond Case ‘669. As Patmythes has not opposed the objection, and indeed explicitly stated that he would prefer to have his appeal of the issues in Case ‘445 handled by the ALJ, the court summarizes those facts as needed for context only. Regardless, the following facts are deemed undisputed for purposes of the City's motion for summary judgment when viewed in a light most favorable to plaintiff. Helmen v. Duhaime, 742 F.3d 760, 761 (7th Cir. 2014).

         A. Background

         The City's Department of Planning, Community and Economic Development “Department”) includes a Building Inspection Division, which in turn includes the Zoning Administration where Patmythes worked. During the relevant time period, George Hand supervised the Building Inspection Division, and Matthew Tucker supervised the Zoning Administration. At that same time, the City had in place the following Administrative Policy Memorandums (“APM”): APM 3-5 - “Prohibited Harassment and/or Discrimination Policy”; APM 2-22 - “Workplace Accommodations”; and APR 2-45 -“Disability Leave/Layoff”. The City also employs an Occupational Accommodations Specialist to assist employees with disabilities.

         Patmythes began working for the City in May of 2004 as a Zoning Code Officer I, and he was promoted to a Zoning Code Officer II in 2006 by virtue of the City's practice of “underfilling” positions. That is, Patmythes was hired to fill a position actually budgeted at Code II. Although Patmythes was initially hired at Code I, he rose to this higher level through his subsequent promotion.

         Since Patmythes' employment began, the City has been well aware of his cystic fibrosis. While not directly relevant to Case ‘669, Patmythes took leave for multiple periods of time between April of 2015 and April of 2016, returning to his Zoning Inspector position on April 22, 2016, beginning with a part-time schedule. In June 2016, he began working as a Zoning Inspector on a full time basis, and he continues to work in that capacity.

         B. Patmythes' requests for accommodations

         City Occupational Accommodations Specialist Sherry Severson worked with Patmythes on his disability and accommodations requests. On September 8, 2014, Patmythes wrote to Severson requesting a HEPA (“High Efficiency Particulate Air”) filter to improve air quality in his work area, which he claimed was having an adverse impact on his quality of life.[2] Severson responded that she would contact him the next day to talk specifics.

         On September 12, 2014, Patmythes met with Severson in her office, who expressed doubts that a portable HEPA filter would appreciably improve his office's air quality. When Severson asked if he was ready for a HEPA filter, Patmythes replied in the affirmative. As an alternative, Severson asked Patmythes whether he would consider moving to a different room. Either way, Severson explained that Patmythes would need to provide documentation of his medical needs to address his condition. Finally, Severson talked about another individual with respiratory issues who transferred to another department, but according to Severson that individual did not move departments as a result of an accommodation. (Severson 2d Aff. (dkt. #41) ¶ 6.)

         On November 12, 2014, Severson emailed Patmythes, attaching three links to air quality control devices and asking him whether a Ultraviolet Germicidal Irradiation (“UVGI”) device would be a better alternative. Additionally, Severson again asked Patmythes' opinion about moving to an empty office if one was available. Having not received a response by November 21, 2014, Severson emailed Patmythes once again, asking him if he would agree to an office switch. According to Patmythes, after this email exchange Severson and Patmythes had a conversation in which Severson stated that she had checked on a HEPA filter and learned that there was one in use by two other employees, but it had proven ineffective. According to Patmythes, it was during this exchange that Severson said he “argued too much.” (Patmythes Aff. (dkt. #26) ¶ 275.)[3]

         On December 5, 2014, Patmythes emailed Severson, stating that she should expect two requests from his doctors: (1) getting him a healthier work environment; and (2) modifying his schedule because he had been having a “pulmonary exacerbation.” Severson responded on December 8, 2014, acknowledging Patmythes' note and letting him know that they could start the conversation with Matt and George (the supervisors) sooner.

         On January 6, 2015, however, Severson emailed Patmythes that she had still not received medical documentation regarding needed accommodations. Patmythes responded the next day, stating that his therapist was against relocating him to a different room, but that he had been certified for a position in the City's Civil Rights Department and wanted to discuss a transfer to that position. Severson responded that to transfer him on the basis of a disability, the City would first need to determine that there were no reasonable accommodations available to him in his current position. On January 8, 2016, Severson emailed Patmythes to acknowledge their many conversations about his conditions and possible accommodations, but further writing that even though she thought he was ready to provide documentation, Patmythes seemed “reluctant to move forward” when they reached the point of approaching his supervisor. (Ex. 1 to Severson 2d Aff. (dkt. #41).)

         On January 10, 2015, Severson received a letter from Patmythes' therapist, Nina Pernecke. (Pl.'s Ex. 29 (dkt. #26-26.) In that letter, Pernecke confirmed that Patmythes was under her care for depression and anxiety related to his cystic fibrosis. She recommended “his work space include a window and that the proximity of such space avails him to workplace interaction.” (Id.) On January 16, 2015, Patmythes also submitted a formal “Request for Accommodation” to Severson for a transfer to a vacant position. (Def.'s Ex. P (dkt. #13-11).) Patmythes stated that his current assignment was exacerbating his conditions and requested a transfer to the Engineering Department of the Department of Civil Rights. (Id.) Patmythes further advised Severson to let him know if she needed any further documentation about his condition.

         On January 21, 2015, Severson met with Patmythes in person, and he brought along a copy of Pernecke's letter. By that point, Patmythes had rejected the option of moving to a different room with a window. Severson and Patmythes discussed the fact that the City would be moving his entire department to temporary offices in a different building due to a remodel, and Severson warned that the temporary offices were “terrible.” According to Severson, she was referring to the large number of displaced City employees at that space, but Patmythes understood Severson to mean that the temporary office had terrible environmental conditions. According to Patmythes, Severson made additional comments suggesting that she did not want him reassigned because of his disability:

• “I don't want people to not have all the truth about what happens, the honest truth about when we place people in new jobs is, guess what, there's resentment and they have to deal with resentment by other people who either thought they should have gotten the job or supervisors who think ‘well, how come I didn't get to select who I wanted to select.'”
• “So I mean there's resentments and things that people have to deal with, we try really, really hard to work on that, but like I can't go and talk to the other employees who maybe were applying for the job as well or thought they were going to get a job or an opportunity to get a job and say well, but this person has a disability.”

         According to Patmythes, he left this meeting in tears. (Patmythes Aff. (dkt. #26) ¶ 288.)

         Next, Patmythes claims the City's Employee and Labor Relations Manager, Gregory Leifer, made comments on January 28, 2015, about health insurance coverage, which Patmythes interpreted as discriminatory toward individuals with disabilities. The context is unclear -- but Patmythes avers that Leifer made the following statements:

• “[F]ifteen percent of covered lives use eight[y]-five percent of your premium dollars that 15%, sorry but that 15% is getting protection from the other 85% that have good genes and don't get sick.”
• “I don't want to make this sound as Darwinian as it's going to sound but to follow up … on great genes versus bad genes. Doesn't the bad genes person have a responsibility to maintain their health? To avoid the things ...

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