Bauer, Judge William Joseph

Flaum, Judge Joel Martin

Hamilton, Judge David

English

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Cornell University ILR School 
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ADAAA Case Repository Labor and Employment Law Program 
2-27-2017 
Joyce Whitaker v. Wisconsin Department of Health Services 
Judge William Joseph Bauer 
Judge Joel Martin Flaum 
Judge David Hamilton 
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Joyce Whitaker v. Wisconsin Department of Health Services 
Keywords 
Joyce Whitaker, Wisconsin Department of Health Services, Government, 16-1807, ADA, ADAAA, 
Americans with Disabilities Act, Disability, Physical, Physical Disability, Physical Impairment, Employment 
Law, Court Opinion, Termination, Failure to Accommodate, back injury, back pain 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/313 
  
In the 
United States Court of Appeals 
For the Seventh Circuit 
____________________ 
No. 16-1807 
JOYCE WHITAKER, 
Plaintiff-Appellant, 
v. 
WISCONSIN DEPARTMENT OF HEALTH SERVICES, 
Defendant-Appellee. 
____________________ 
Appeal from the United States District Court for the 
Eastern District of Wisconsin. 
No. 2:13-cv-00938-LA — Lynn Adelman, Judge. 
____________________ 
ARGUED NOVEMBER 29, 2016 — DECIDED FEBRUARY 27, 2017 
____________________ 
Before BAUER, FLAUM, and HAMILTON, Circuit Judges. 
HAMILTON, Circuit Judge. Plaintiff Joyce Whitaker worked 
for the Wisconsin Department of Health Services. The Depart-
ment fired Whitaker when she did not return to work after 
exhausting her unpaid statutory and contractual medical 
leave. Whitaker sued, claiming that the Department failed to 
accommodate her disability and terminated her employment 
in violation of the Rehabilitation Act. The district court 
granted summary judgment in favor of the Department on 
2 No. 16-1807 
several grounds. We agree with the district court that Whita-
ker failed to establish that she was an “otherwise qualified” 
employee, as required by the Rehabilitation Act, and we af-
firm the grant of summary judgment. 
I. Factual and Procedural Background 
A. Employment History and Disability Accommodation 
On appeal from a grant of summary judgment, we accept 
as true the evidence offered by the non-moving party, and we 
draw all reasonable inferences in that party’s favor. Zerante v. 
DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff Joyce Whit-
aker first started working for Milwaukee County in 2001. She 
initially worked as a corrections officer, but after suffering a 
back injury in 2005, she transitioned to other positions with 
the County. She ultimately became an economic support spe-
cialist in the Income Maintenance Program, which manages 
Milwaukee’s applications for public assistance. Whitaker’s re-
sponsibilities included processing applications for benefits, 
answering phone calls, and general case management.  
In 2009, the Wisconsin legislature directed the Wisconsin 
Department of Health Services to assume administration of 
Milwaukee County’s public assistance program. 2009 Wis. 
Act. 15, § 22, codified at Wis. Stat. § 49.825. Whitaker contin-
ued in her position, where she worked on behalf of the 
County but was under the supervision of the Department of 
Health Services. The Department had authority to make em-
ployment decisions regarding Whitaker, Wis. Stat. 
§ 49.825(3)(b)(1), and it made the termination decision that 
she challenges in this suit.  
The Department was aware of Whitaker’s disability at 
least as early as 2009. On December 8, 2009, Whitaker filed a 
No. 16-1807 3 
disability form seeking an accommodation for her chronic 
back pain. She requested permission to stand and stretch for 
five minutes once every thirty minutes during the workday. 
The Department approved her request. 
B. Consecutive Leaves of Absence 
In the summer of 2010, Whitaker took the first of several 
consecutive leaves of absence. She never returned to work be-
fore she was fired in November 2010. During those months, 
Whitaker requested and received a number of extensions un-
til she had exhausted several types of leave that were availa-
ble to her. At times she made clear that she was requesting 
leave due to her disability. At other times it was less clear why 
she requested leave. The events unfolded as follows.  
On August 27, 2010, Whitaker requested two weeks of 
continuous leave under the Family and Medical Leave Act 
(FMLA) due to her “recurrent back pain.” The Department 
approved her request and set her return date for September 
10, 2010. Then, on September 8, Whitaker requested addi-
tional FMLA leave until December 27, 2010 to take care of a 
family member and because of her medical condition. The De-
partment authorized leave through October 18, 2010, but in-
formed Whitaker that her FMLA leave for the year would be 
exhausted at that point. The Department advised Whitaker 
that she could, however, request an unpaid leave of absence 
for up to 30 more days under section 2.24 of her contract: 
“Leaves of absence without pay [not] exceeding 30 calendar 
days may be granted for good reason to any employee with 
the approval of their [sic] department head or designee … . 
Request for such leaves shall be made by the employee as far 
as possible in advance of the date on which such leave is to 
4 No. 16-1807 
begin.” The Department also explained the process for re-
questing that leave. 
On October 18, Whitaker submitted a request for contrac-
tual leave without pay through December 28, 2010. This time 
her request said that she sought leave to “take care of [her] ill 
father” and due to her “own personal illness.” It did not men-
tion her back condition specifically. The Department ap-
proved her contractual leave until November 5, 2010, but 
noted that it “will not be granting any additional extensions 
of this leave” and Whitaker was “expected to return to work on 
Monday, November 8, 2010.” (Emphasis in original.) The De-
partment warned Whitaker that if she failed to return to work, 
it would begin the termination process.  
Whitaker did not return to work on November 8. She did, 
however, submit two additional notes from her doctor. One, 
dated November 3, 2010, said only “medical leave of absence 
until 11/17/10.” The second was dated November 12, 2010 and 
said only “medical leave of absence until 12/17/10.” Neither 
note provided any detail on Whitaker’s condition, her course 
of treatment, or the likelihood of her recovery. 
C. Termination and Lawsuit 
On November 15, 2010, the Department notified Whitaker 
that it was considering terminating her employment due to 
her failure to return to work. It scheduled a meeting with her 
for November 18 to “discuss this pending action and provide 
any documentation you wish to submit for consideration.” 
Whitaker attended the November 18 meeting with a union 
representative. She indicated that she still could not return to 
work. The Department then terminated her employment on 
November 30, and Whitaker sued. 
No. 16-1807 5 
Whitaker’s legal claims have gone through several itera-
tions. On appeal, she argues that the Department of Health 
Services violated Section 504 of the Rehabilitation Act, 29 
U.S.C. § 794, by rejecting what she calls her request for an ac-
commodation of “finite, unpaid leave” and instead terminat-
ing her employment.1 
The district court granted summary judgment in favor of 
the Department. First, the court found that Whitaker failed to 
provide evidence that she could perform the essential func-
tions of her position, either with or without an accommoda-
tion. Second, the court found that Whitaker had admitted that 
she was not terminated “solely by reason of her … disability,” 
as required by the Rehabilitation Act. Finally, the court found 
that Whitaker’s accommodation request “amounted to an 
open-ended leave request,” which was not reasonable and 
would have imposed an undue burden on the Department.  
II. Analysis 
A. Standard of Review 
We review de novo the district court’s grant of summary 
judgment. Magnus v. St. Mark United Methodist Church, 688 
                                                 
1 Whitaker filed an earlier lawsuit alleging a violation of the Ameri-
cans with Disabilities Act and naming both Milwaukee County and the 
Wisconsin Department of Health Services as defendants. The Department 
was dismissed on sovereign immunity grounds, and the district court 
granted the County’s motion for summary judgment because the adverse 
employment actions were taken by the Department, not the County. We 
affirmed. Whitaker v. Milwaukee County, 772 F.3d 802 (7th Cir. 2014). On 
August 20, 2013, Whitaker filed this new suit against the Department un-
der the Rehabilitation Act. The district court denied the Department’s mo-
tion to dismiss on claim preclusion grounds but granted its motion for 
summary judgment, which Whitaker now challenges.   
6 No. 16-1807 
F.3d 331, 336 (7th Cir. 2012). Except for its “solely by reason 
of” standard, the Rehabilitation Act “incorporates the stand-
ards applicable to Title I of the [Americans with Disabilities 
Act].” Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 
2013). To prevail on her Rehabilitation Act claim, Whitaker 
must show that: “(1) she is disabled within the meaning of the 
statute; (2) that she was otherwise qualified for the job in ques-
tion; (3) that she was discharged or the subject of other ad-
verse action solely because of her disability; and (4) the em-
ployment program of which her job was a part received fed-
eral financial assistance.” Felix v. Wisconsin Dep’t of Transpor-
tation, 828 F.3d 560, 568 (7th Cir. 2016).  
To avoid a motion for summary judgment challenging 
each element, Whitaker must present evidence that, if be-
lieved by a trier of fact, would establish each of these ele-
ments. Kotwica v. Rose Packing Co., 637 F.3d 744, 748 (7th Cir. 
2011). It is undisputed that Whitaker is disabled within the 
meaning of the statute and that the Department receives fed-
eral funds. However, Whitaker failed to present evidence that 
would allow a trier of fact to find that she was an “otherwise 
qualified” employee. An employee is “otherwise qualified” 
when she is capable of performing the “essential functions” 
of the job with or without a reasonable accommodation. 
Brumfield, 735 F.3d at 631. Since Whitaker failed to establish 
that she could perform the essential functions of her job, her 
Rehabilitation Act claim fails. We need not address the De-
partment’s argument that Whitaker never made a proper ac-
commodation request in the first place, nor the district court’s 
conclusion that her request was not reasonable. 
  
No. 16-1807 7 
B. “Otherwise Qualified” Employee 
For purposes of the Americans with Disabilities Act and 
the Rehabilitation Act, regular attendance is an essential func-
tion of many jobs. See, e.g., Basden v. Professional Transporta-
tion, Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“An employer is 
generally permitted to treat regular attendance as an essential 
job requirement and need not accommodate erratic or unreli-
able attendance.”), citing EEOC v. Yellow Freight System, 
Inc., 253 F.3d 943, 948–49 (7th Cir. 2001); Jovanovic v. In-Sink-
Erator Division of Emerson Elec. Co., 201 F.3d 894, 899–900 (7th 
Cir. 2000) (“Common sense dictates that regular attendance is 
usually an essential function in most every employment set-
ting; if one is not present, he is usually unable to perform his 
job.”).  
While there may be exceptions to this general rule, the rec-
ord shows there was no exception in this case: Whitaker’s eco-
nomic support specialist position required regular attend-
ance. The position’s responsibilities included answering 
phone calls, attending in-person meetings with clients, using 
the Department’s internal computer system, and other tasks 
that required attendance. Whitaker does not provide any evi-
dence that attendance was not an essential function of the job.  
Whitaker argues instead that even if attendance was an es-
sential function, the district court erred by analyzing her qual-
ification only without accommodation, rather than also with 
a reasonable accommodation. This is simply not the case. The 
district court did consider whether Whitaker was capable of 
performing the essential functions of her job either with or 
without a reasonable accommodation. Whitaker did not meet 
this standard without an accommodation because she failed 
to attend work, and attendance was an essential function of 
8 No. 16-1807 
the job. She did not meet this standard with an accommoda-
tion because, as the district court discussed, she did not offer 
sufficient evidence to establish this element.  
Whitaker did not offer any evidence regarding the effec-
tiveness of her course of treatment or the medical likelihood 
of her recovery. The only medical documents she supplied 
were two terse doctor notes. One stated “medical leave of ab-
sence until 11/17/10” and the other stated “medical leave of 
absence until 12/17/10.” These notes did not explain whether 
Whitaker was even receiving treatment, let alone the likely ef-
fectiveness of the treatment. We have found doctor notes were 
insufficient to support a reasonable accommodation even if 
they were more informative than these. See, e.g., Weigel v. Tar-
get Stores, 122 F.3d 461, 469 (7th Cir. 1997) (affidavit from 
plaintiff’s psychiatrist saying “there was a good chance” that 
she would be able to return to work was “too conclusory and 
uninformative” to support conclusion that accommodation 
would enable plaintiff to attend work regularly). The doctor 
notes here were even less informative. 
Given this shortcoming, Whitaker argues that her declara-
tion provides sufficient evidence that she could perform the 
essential functions of her job if given an accommodation—
that is, that she could attend work on a regular basis if given 
additional leave. In her September 2015 declaration, Whitaker 
stated that she received cortisone injections and physical ther-
apy during her leave in the fall of 2010. She also said: “I pro-
vided [the Department] with an anticipated return to work 
date of December 28, 2010 that I would have actually been 
able to return by if Defendant had extended my medical 
leave.”  
No. 16-1807 9 
It is true that “self-serving affidavits can indeed be a legit-
imate method of introducing facts on summary judgment.” 
Widmar v. Sun Chemical Corp., 772 F.3d 457, 459–60 (7th Cir. 
2014). Moreover, we have taken pains to reject “the miscon-
ception that evidence presented in a ‘self-serving’ affidavit is 
never sufficient to thwart a summary judgment mo-
tion.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see also 
Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“Deposi-
tion testimony, affidavits, responses to interrogatories, and 
other written statements by their nature are self-serving. As 
we have repeatedly emphasized over the past decade, the 
term ‘self-serving’ must not be used to denigrate perfectly ad-
missible evidence through which a party tries to present its 
side of the story at summary judgment.”) (citation omitted). 
Nonetheless, Whitaker’s declaration is insufficient to 
avoid summary judgment. Her declaration does not provide 
sufficient evidence to allow a trier of fact to find that, if the 
Department had given her additional unpaid leave, she likely 
would have been able to return to work on a regular basis. 
While Whitaker said that she was receiving treatment, she did 
not explain the effectiveness of this treatment or the medical 
likelihood that it would enable her to return to work regularly. 
Again, we have found claims with even more medical evi-
dence insufficient. See, e.g., Basden, 714 F.3d at 1038 (plaintiff 
provided “evidence that medication improved her condition; 
that she had hoped for enough improvement to return to 
work regularly after leave; and that she subsequently had 
brief employment that was interrupted by a two-week ab-
sence caused by her condition;” that “evidence was insuffi-
cient to support a factual finding that [plaintiff] was able to 
come to work regularly at the time of her termination, or that 
10 No. 16-1807 
her regular attendance could have been expected following 
the leave she sought or with any other accommodation”).  
The insufficiency of Whitaker’s declaration is com-
pounded by the record, which shows that she had repeatedly 
requested additional medical leave when her leave was about 
to expire. See, e.g., Amadio v. Ford Motor Co., 238 F.3d 919, 928–
29 (7th Cir. 2001) (in light of employee’s attendance record, 
“the extension of [employee’s] already lengthy leave by one 
more week would have been a futile concession, not a reason-
able accommodation”). 
Since Whitaker failed to establish that she was an “other-
wise qualified” employee, we need not address whether she 
properly requested an accommodation, or whether her ac-
commodation request was reasonable. The district court’s 
grant of summary judgment for the Wisconsin Department of 
Health Services is 
AFFIRMED.  


Joyce Whitaker v. Wisconsin Department of Health Services

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