United States District Court, E.D. Wisconsin
SONJA S. HURT, Plaintiff,
WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant.
STADTMUELLER, U.S. DISTRICT JUDGE
proceeds in this matter pro se and in forma
pauperis. (Docket #1 and #2). On September 26, 2017,
Magistrate Judge David E. Jones screened Plaintiff's
complaint. (Docket #7). Plaintiff alleges that Defendant, her
former employer, discriminated against her on the basis of
her chronic leukemia. Id. at 3. Plaintiff claims
that she was harassed daily by her supervisor. Id.
She further alleges that she requested accommodations for her
disability but was denied any reasonable accommodations.
Id. Plaintiff filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”), which
she says was met with retaliation. Id. She
eventually quit her job. Id. Magistrate Judge Jones
permitted Plaintiff to proceed on claims of “disability
discrimination and retaliation.” Id. at 4.
action was reassigned to this branch of the Court on October
25, 2017. On March 30, 2018, Defendant moved for summary
judgment. (Docket #18). Plaintiff's response to the
motion was due on or before April 30, 2018. Civ. L. R. 7(b).
That deadline has long since passed and no response or other
communication has been received from Plaintiff. The Court
could summarily grant Defendant's motion in light of
Plaintiff's non-opposition. Civ. L. R. 7(d). However, as
explained below, Defendant also presents valid bases for
dismissing Plaintiff's claims. For both of these reasons,
Defendant's motion must be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016).
relevant facts are undisputed because Plaintiff failed to
dispute them. Federal Rule of Civil Procedure 56 and Civil
Local Rule 56 describe in detail the form and contents of a
proper summary judgment submission, including how to dispute
assertions of fact. In Defendant's motion for summary
judgment, it warned Plaintiff about the requirements for her
response as set forth in Federal and Local Rules 56. (Docket
#18). She was provided with copies of those Rules along with
Defendant's motion (id. at 3-12), as well as
with the Court's Trial Scheduling Order (Docket
#14-3 and #14-5). In connection with its motion, Defendant
filed a supporting statement of material facts that complied
with the applicable procedural rules. (Docket #20). It
contained short, numbered paragraphs concisely stating those
facts which Defendant proposed to be beyond dispute, with
supporting citations to the attached evidentiary materials.
response, Plaintiff filed absolutely nothing-no brief in
opposition, much less a response to the statement of facts.
Plaintiff has entirely ignored the rules of summary judgment
procedure, and failed to properly dispute Defendant's
proffered facts with citations to relevant, admissible
evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003). Though the Court is required to liberally construe a
pro se plaintiff's filings, it cannot act as her
lawyer, and it cannot delve through the record to find
favorable evidence for her. Thus, the Court will, unless
otherwise stated, deem Defendant's facts undisputed for
purposes of deciding its motion for summary judgment.
See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4);
Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir.
2006) (noting that district courts have discretion to enforce
procedural rules against pro se litigants).
absence of any factual disputes, and in the interest of
brevity, the Court assumes familiarity with the facts as
described in Defendant's statement of facts. (Docket
#20). The Court will discuss the facts below only briefly, as
relevant to its analysis.
characterizes Plaintiff's complaint, and Magistrate Judge
Jones' screening order, as raising three claims under the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq.: 1) failure to reasonably accommodate
Plaintiff's disability, 2) retaliation for the filing of
an EEOC complaint, and 3) harassment, resulting in a hostile
work environment, on the basis of her disability. (Docket #19
at 1). In light of Plaintiff's non-opposition to the
instant motion, the Court sees no reason to disagree with
that assessment. The Rehabilitation Act expressly borrows the
provisions of the Americans with Disabilities Act, 42 U.S.C.
§ 12111 et seq., and case law interpreting it
relies on other areas of employment discrimination
jurisprudence. See 29 U.S.C. § 794(d);
Stanek v. St. Charles Comm. Unit Sch. Dist. No. 303,
783 F.3d 634, 641 (7th Cir. 2015); Gratzl v. Off. of
Chief Judges of the 12th, 18th, 19th, and 22nd Judicial
Circuits, 601 F.3d 674, 678 n.2 (7th Cir. 2010);
Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005).
The Court may thus rely on opinions not directly addressing
the Rehabilitation Act.
Court begins with the accommodation claim. To prove such a
claim, Plaintiff must show that “(1) [s]he is a
qualified individual with a disability; (2) the employer was
aware of her disability; and (3) the employer failed to
reasonably accommodate the disability.” Bunn v.
Khoury Enters., Inc., 753 F.3d 676, 682 (7th Cir. 2014).
As to the last element, the employer need not provide the
accommodation the employee requests or prefers, only one
which allows the employee to perform the job with reasonable
comfort. E.E.O.C. v. Sears, Roebuck & Co., 417
F.3d 789, 802 (7th Cir. 2005); Cloe v. City of Ind.,
712 F.3d 1171, 1176 (7th Cir. 2013). The employer is not
required to accommodate “by making special,
individualized training or supervision available in order to
shepherd that employee through what is an essential and
legitimate requirement of the job.” Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 867 (7th Cir. 2005).
reasonable jury could conclude Defendant's efforts to
accommodate Plaintiff were anything other than reasonable.
She was permitted every accommodation suggested by her
medical provider. For example, Hurt's medical provider
indicated that Hurt needed accomodations such as frequent
breaks to move around and increase circulation and frequent
bathroom breaks. In accordance with these needs, Hurt was
provided the following accommodations: the ability to walk,
stand, stretch or move about in her cubicle as needed in
response to symptoms related to her condition, the ability to
leave her work areas to use the restroom as needed but not to
exceed more than ten minutes at a time; and an extended
telephone cord or wireless headset to allow her to move about
her cubicle without restriction. These accommodations
satisfied her medical provider's mandate; Plaintiff
cannot insist on any more than that. Further, Hurt never
informed Defendant that the accommodations provided to her
did not help. To the extent Plaintiff wanted to be