Authors: Attorney John C. Mitby & Law Clerk Elizabeth L. Spencer
Phone: 608-575-4077
Email: jmitby@hbslawfirm.com

In the recent case Whitaker v. Wisconsin Department of Health Services, 849 F.3d 681 (7th Cir. 2017), the Seventh Circuit refused to revive a fired employee’s suit stating that she did not establish that she was an “otherwise qualified” employee under Section 504 of the Rehabilitation Act, 29. U.S.C. § 794. Notably, the Seventh Circuit reiterated that regular attendance can be an essential function of an employee’s position. The Court did not overturn the motion for summary judgment in favor of the Department as the employee failed to provide evidence that she was able to return to work, with or without a reasonable accommodation, after several months of consecutive leave.

After suffering a back injury, Whitaker was transferred from a more active position to that of an economic support specialist for Milwaukee County. In 2009, the Wisconsin Department of Health Services assumed administration over Milwaukee County’s public assistance program making Whitaker an employee of the Department. Beginning in the summer of 2010, Whitaker took several consecutive leaves of absence. At times, she clearly indicated that the leave was due to her disability but at other times it was unclear. After requesting more leave, the Department informed her that her FMLA leave would be exhausted on October 18, but that her contract provided an additional 30 days of unpaid leave. The Department informed her that if she did not return to work it would begin the termination process. Whitaker submitted 2 additional vague notes from her doctor requesting leave. After a meeting on November 30, her employment was terminated.

Whitaker commenced this action arguing that the Department violated the Act by rejecting her request for an accommodation of “finite, unpaid leave.” The District Court granted summary judgment in favor of the Department stating that Whitaker failed to provide evidence that she could perform the essential functions of her position with or without an accommodation.
Whitaker appealed the District Court’s decision to the Seventh Circuit. To succeed in challenging the motion for summary judgment, Whitaker needed to present evidence that, if believed by a trier of fact, would establish each of the elements of the Act claim. These elements included showing that despite her disability she was otherwise qualified to perform her job. The Seventh Circuit concluded that Whitaker failed to present evidence to demonstrate that she was “otherwise qualified.” An employee is “otherwise qualified” when she is able to perform the essential functions of her position either with or without a reasonable accommodation. While there are some exceptions, for the purposes of the Rehabilitation Act, regular attendance is an essential function of many jobs. Whitaker’s work required her regular attendance to fulfill her duties.

The Court stated that Whitaker failed to offer sufficient evidence that she was able to perform this essential function even with a reasonable accommodation. The provided doctors’ notes were uninformative and the Seventh Circuit had previously found that notes were insufficient to support a reasonable accommodation. Whitaker also provided a self-serving affidavit stating that she would have been able to return to work at the end of December. While this type of declaration is a legitimate method of introducing facts on summary judgment, the Court stated it did not provide sufficient evidence to allow a trier of fact to find that if the Department gave her more leave, she would have been able to return to work. The Court stated in the affidavit, Whitaker failed to explain the effectiveness of the treatment or the medical likelihood that it would enable her to return to work.

This case reminds employers that for many employees regular attendance would be considered an essential function of a job. For employees, it is a reminder that even with mandated leave for issues covered by the FMLA that they must be able to demonstrate that they can return to work.