Joyce Whitaker v. Milwaukee County, Wisconsin
772 F.3d 802
7th Cir.2014Background
- Whitaker was a Milwaukee County employee who, after a 2009 statutory transfer, worked in a state-run Milwaukee County Enrollment Services (MilES) unit: she kept County pay/benefits but her supervisors and personnel decisions were DHS employees.
- She suffered chronic back disability, received intermittent and continuous FMLA leave in 2010, and requested additional leave/accommodations in late 2010.
- DHS supervisors (state employees) issued a notice of intent to terminate for medical reasons in November 2010 and confirmed termination effective November 30, 2010; County HR was copied on correspondence but DHS made the personnel decisions.
- Whitaker filed an EEOC charge (naming County and DHS) alleging discharge for disability and gave October 25, 2010 as the only discrimination date; she did not check continuing action.
- DHS was later dismissed from the suit on Eleventh Amendment immunity; Whitaker sued only Milwaukee County under the ADA. The district court denied leave to amend to add DHS/Rehabilitation Act claims and granted summary judgment to the County.
- The Seventh Circuit affirmed: it held the County not liable for DHS personnel actions and that Whitaker’s County-based accommodation claims were outside the scope of her EEOC charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County is liable under the ADA for DHS decisions (termination/denial of leave) | Whitaker argued County was a joint employer or otherwise responsible for DHS supervisors’ actions and thus liable for ADA violations | County argued DHS made and controlled the decisions; County had no authority to override DHS and thus cannot be held liable | County not liable: DHS (state) made and controlled personnel decisions; County did not participate and could not correct DHS conduct |
| Whether Whitaker could assert a joint-employer theory raised in summary-judgment opposition | Whitaker argued the factual record always supported a joint-employer characterization and she may press that legal theory at summary judgment | County argued the joint-employer theory was a new, untimely amendment raised improperly in opposition briefing | Court held Whitaker could present the joint-employer theory (it was an alternative legal characterization of existing pleaded facts) and considered it on the merits |
| Whether failure-to-accommodate claims (extension of leave, transfer) are exhausted via EEOC charge | Whitaker argued her discharge claim was closely related to accommodation requests and an EEOC investigation would have encompassed those issues | County and district court argued those accommodation claims were distinct and not reasonably related to the single-date discharge charge (Green) | Circuit declined to reach whether Green should be refined here because County not liable for DHS conduct; held accommodation claims against County were unexhausted and therefore not before the court |
| Whether County failed to provide post-termination placement referral (Job Accommodations Coordinator) | Whitaker argued DHS’s letter promised referral to County placement program and County failed to effectuate placement, creating a County-based accommodation claim | County produced affidavit that Whitaker was not referred and the program lacked authority to transfer MilES employees after DHS transition; County asserted no control | Court affirmed summary judgment for County on this claim: Whitaker did not rebut County’s affidavit and DHS (not County) controlled referral; therefore claim fails against County |
Key Cases Cited
- Shanahan v. City of Chicago, 82 F.3d 776 (7th Cir.) (rejecting attempts to amend complaint via summary-judgment response)
- Abuelyaman v. Illinois State Univ., 667 F.3d 800 (7th Cir.) (same principle: new factual theory at summary judgment may be denied)
- Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d 894 (7th Cir.) (failure-to-accommodate claims are legally distinct from discriminatory discharge claims for EEOC exhaustion)
- Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.) (plaintiffs need not plead legal theories; factual allegations control)
- Johnson v. City of Shelby, 135 S. Ct. 346 (U.S.) (complaints need not plead legal theories)
- Robinson v. Sappington, 351 F.3d 317 (7th Cir.) (agency/respondeat superior principles in determining proper employer defendant)
- NLRB v. Browning-Ferris Indus. of Pa., 691 F.2d 1117 (3d Cir.) (joint-employer concept and shared control over employment terms)
- Moldenhauer v. Tazewell-Pekin Consol. Commc’ns Ctr., 536 F.3d 640 (7th Cir.) (each alleged employer must exercise control for joint-employer finding)
- Torres-Negrón v. Merck & Co., 488 F.3d 34 (1st Cir.) (joint-employer status does not itself create vicarious liability for the other employer’s actions)
- Llampallas v. Mini-Circuits Lab, Inc., 163 F.3d 1236 (11th Cir.) (no liability where defendant had no involvement in challenged employment action)
- Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (U.S.) (state sovereign immunity under federal employment discrimination statutes)