Joyce Whitaker v. Milwaukee County, Wisconsin , 772 F.3d 802 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3735
JOYCE WHITAKER,
Plaintiff-Appellant,
v.
MILWAUKEE COUNTY, WISCONSIN,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:12-cv-01006-JPS — J. P. Stadtmueller, Judge.
____________________
ARGUED APRIL 15, 2014 — DECIDED DATE NOVEMBER 25, 2014
____________________
Before RIPPLE and WILLIAMS, Circuit Judges, and ST. EVE,
District Judge. *
RIPPLE, Circuit Judge. Joyce Whitaker brought this action
against her former employer, Milwaukee County, alleging
that she was discriminated against in violation of the
Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C.
* The Honorable Amy J. St. Eve, of the United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 13-3735
§ 12101 et seq. She specifically alleged that her employer had
failed to accommodate her disability by refusing to extend
her period of medical leave, refusing to transfer her to
another position, and then terminating her for reasons
related to her disability. Milwaukee County (the “County”)
moved for summary judgment, which the district court
granted. Ms. Whitaker now appeals. She challenges the
district court’s conclusion that her complaint impermissibly
went beyond the scope of her EEOC charge and that
Milwaukee County was not her “employer” under the
statute.
We affirm the judgment of the district court. We
conclude that, although Milwaukee County was Ms.
Whitaker’s official employer and was responsible for her
compensation, it had no involvement in the principal
decisions that she claims violated the statute and no
authority to override those decisions, made by the State of
Wisconsin’s Department of Health Services personnel.
Accordingly, the County cannot be held liable under the
ADA for those decisions. Because the district court’s
judgment in favor of the County on the termination and
denial of accommodation claims must be upheld on this
basis, we need not consider whether that court erred in
determining the scope of the charge as it concerns State
conduct. With respect to whether the County is liable for any
of its own actions, we hold Ms. Whitaker’s allegations on
these matters are outside the scope of her EEOC charge, and,
therefore, we cannot consider them. We therefore affirm the
district court’s grant of summary judgment to Milwaukee
County.
No. 13-3735 3
I
BACKGROUND
A.
Beginning in 2001, Ms. Whitaker worked as a corrections
officer for the County. In 2005, she sustained a work-related
injury to her back and subsequently was diagnosed with
degenerative lumbar disk disease and symptoms of chronic
diskogenic low back pain and sciatica. As a result of these
back conditions, she has physician-imposed permanent
work restrictions and substantial limitations in a number of
tasks, including sitting, standing, and walking. Through the
County’s employment relocation program, Ms. Whitaker
was hired in 2006 as an Energy Assistance Specialist as an
accommodation for her back disability. Later, in 2008,
Ms. Whitaker became an Economic Support Specialist in the
County’s income maintenance (i.e., public benefits) program,
where she continued until her termination in 2010.
In 2009, Wisconsin enacted a statute that directed the
State’s Department of Health Services (“DHS”) to establish a
unit to administer public assistance programs in Milwaukee
County. See 2009 Wisconsin Act 15, § 22 (codified at Wis.
Stat. § 49.825). The County previously had administered
those functions through the unit in which Ms. Whitaker
worked. Following the transition to State management,
Ms. Whitaker remained an employee of the County, but
worked in the DHS unit, now called Milwaukee County
Enrollment Services (“MilES”). She retained her County
badge and her membership (with seniority) in the union of
County employees. She was compensated and received
benefits from the County. This arrangement conformed to
4 No. 13-3735
the statute transferring administration to DHS. See Wis. Stat.
§ 49.825(3).
All of Ms. Whitaker’s supervisors, however, were
employees of Wisconsin DHS, as required by the statute, and
they managed the day-to-day affairs of the office with no
input from County officials. 1 See id. § 49.825(3)(a). Her DHS
supervisors had “the authority to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, discipline,
and adjust grievances with respect to, and state supervisory
employees may supervise, county employees performing
services … for the unit.” Id. § 49.825(3)(b)(1). DHS employees
also administered the leave program and had authority to
resolve disputes with the applicable union. 2 The transition
began in May 2009, and the State had assumed full
responsibility for the program by January 1, 2010. Ms.
Whitaker does not allege that any County employees had
involvement in any adverse employment actions taken with
respect to her once the transfer to DHS administration was
complete.
During her employment—both before and after the
transition to DHS administration—Ms. Whitaker
complained that at least one of her supervisors, MilES
Deputy Director Vanessa Robertson, had ignored regularly
her permanent work restrictions; 3 Ms. Whitaker, however,
1 Supervisory employees under the previous County regime
transitioned to State DHS employees with the transfer of administration.
2 In addition to the dictates of the statute, the status of the workers
vis-à-vis the County and State was memorialized in a memorandum of
understanding between the County’s union and the State in 2009.
3 See, e.g., R.43-10 at 37–40.
No. 13-3735 5
did not file an EEOC complaint. She did request and receive
a work accommodation in January 2010 from a DHS
compliance officer relating to her ability to sit for only short
periods. Six months later, in June 2010, Nicole Teasley, a
human resources specialist for DHS, approved a request for
intermittent leave under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601–54.
On August 27, 2010, Ms. Whitaker aggravated her
existing back disability. She then requested continuous
FMLA leave, which also was approved in August by Teasley
for an initial period of two weeks. One day before its
expiration, Ms. Whitaker again requested continuous leave
under the FMLA, this time citing both her own limitations
and a need to provide care for her father. Teasley again
approved the request, authorizing leave from September 8
through October 18. Teasley’s letter noted that Ms.
Whitaker’s FMLA leave would be exhausted on October 19,
2010, and that she would then have an opportunity under
her employment contract to request a leave of absence
without pay for up to thirty days. On October 18, 2010, Ms.
Whitaker forwarded to Teasley a request for a leave of
absence, again citing her own condition and her need to care
for her father; she requested a return-to-work date of
December 28, 2010. On October 25, 2010, Teasley approved
in part and denied in part Ms. Whitaker’s request, allowing a
contractual leave of absence only through November 5, 2010.
A separate letter of the same date from Deputy Director
Robertson reiterated that FMLA leave was exhausted and
stated that Ms. Whitaker was expected to return to work on
6 No. 13-3735
November 8, 2010, and that, if she did not return, DHS
would “begin the process for medical separation.” 4
Ms. Whitaker did not return to work as scheduled. Her
physician sent FMLA medical certifications on three
occasions extending her need for medical leave first to mid-
November, then mid-December, then mid-January 2011. In
the meantime, however, by further letter dated November
15, 2010, Robertson provided Ms. Whitaker with a notice of
intent to terminate her for medical reasons and explained the
state statutory authority for termination of an employee who
has exhausted available leave and remained unable to return
to work. It also noted that employees who were medically
separated would be referred to the County’s Job
Accommodations Coordinator to seek an alternative
placement during a six-month leave of absence. 5 A County
human resources representative was copied on the
correspondence. 6 The letter also set a meeting on November
18th to discuss the proposed action. Ms. Whitaker attended
the meeting along with a union representative, Teasley, and
Robertson, and she confirmed that she was unable to return
to work. DHS representatives reiterated their intent to
terminate her. A confirmation letter from another DHS
employee recited that Ms. Whitaker was “terminated
4 Id. at 15.
5 Ms. Whitaker apparently was not referred to this program, and the
program was not notified of her medical separation. According to the
Coordinator, the County had no authority to transfer employees through
this program once the transition to DHS supervision of MilES was
complete. See R.46 at 2.
6 See R.43-10 at 14.
No. 13-3735 7
effective November 30, 2010 for medical reasons,” and the
County’s human resources director received a copy. 7
Meanwhile, on November 3, 2010—prior to receiving
Robertson’s notice of intent to terminate—Ms. Whitaker had
filed a charge with the EEOC naming both Milwaukee
County and Wisconsin DHS as employers. The charge
stated: “I believe that I have been discharged on the basis of
my disability in violation of” the ADA.8 It gave October 25,
2010—the date on which she was informed that her FMLA
leave was exhausted and that she was required to return on
November 8—as the only date of discrimination. The box
available for “continuing action” was not selected. The
EEOC issued a right to sue letter on July 26, 2012, and sent a
dismissal letter on May 8, 2013, in which it stated that it was
unable to conclude that there had been a violation of the
statutes.
B.
Ms. Whitaker brought this action in the district court and
initially named both Milwaukee County and Wisconsin DHS
as defendants. Wisconsin DHS then moved successfully for
its dismissal from the action on the basis of Eleventh
Amendment immunity. Ms. Whitaker filed an amended
complaint, and Milwaukee County, now the sole defendant,
moved for summary judgment on March 28, 2013. On
November 6, 2013, with trial set for February, Ms. Whitaker
moved for leave to file a second amended complaint. On
7 R.64-1 at 68.
8 Id. at 54.
8 No. 13-3735
November 12, 2013, in a single order, the district court
denied Ms. Whitaker’s motion for leave and granted the
County’s motion for summary judgment.
With respect to the motion to file a second amended
complaint, Ms. Whitaker principally sought to rejoin
Wisconsin DHS as a defendant and to add a claim under the
Rehabilitation Act. The district court’s decision denying
leave concluded that granting the motion would unduly
delay the proceedings and prejudice the County. 9 It noted
that the matter had been pending for more than a year and
that no explanation had been provided for the delay.10
Because the operative facts were all known at the time of the
first amendment, the court concluded that the only
explanation was that the additional claim was “belatedly-
identified.” 11 It also held that adding DHS and a new theory
of liability would prejudice Milwaukee County, which had
“answered, engaged in discovery, and fully briefed a motion
for summary judgment predicated upon the amended
complaint.” 12 In the district court’s view, if the amendment
were allowed, “Milwaukee County would have to reassess
its entire strategy in this matter, laying waste to significant
efforts made in its defense.” 13
9 R.57 at 7 (“Whitaker’s motion was filed much too late in the
proceedings….”).
10The record contains no explanation as to why a Rehabilitation Act
claim was not contained in the initial complaint.
11 Id.
12 Id. at 8.
13 Id. The district court’s decision on this point is not before us on
this appeal, and we express no view with respect to the matter.
No. 13-3735 9
Having determined that Ms. Whitaker could proceed
only against the County under the ADA, the court then
turned to the County’s motion for summary judgment. It
noted that Ms. Whitaker’s amended complaint made three
claims related to a failure to accommodate as well as one
claim for unlawful termination, while her EEOC charge
referenced only her termination. It ruled that the additional
claims were not “like or reasonably related to”14 the claim
included within the charge, finding the case analogous to
Green v. National Steel Corp., Midwest Division, 197 F.3d 894
(7th Cir. 1999). Accordingly, the district court dismissed as
unexhausted all of the failure-to-accommodate claims.
Turning to the remaining termination claim, the district
court held that Ms. Whitaker’s claims against the County as
a “joint employer” with DHS “fail[ed] as a matter of
procedure and merit.” 15 Procedurally, the court held that
Ms. Whitaker could not argue a joint employer theory
because, in her pleadings, she had alleged an agency
relationship between the County and Wisconsin DHS. The
district court viewed this argument as an unacceptable
attempt to amend the pleadings through summary judgment
argument and raise a new theory of liability in opposition
briefing to summary judgment. Because this claim “was not
timely raised,” the County “did not have adequate notice” of
the theory, and the court declined to “consider this
argument in its analysis of Milwaukee County’s motion for
summary judgment.” 16
14 Id. at 9 (internal quotation marks omitted).
15 Id. at 11.
16 Id. at 13–14.
10 No. 13-3735
The court then held that Milwaukee County was not
properly liable for allegedly discriminatory acts performed
by DHS. “The undisputed facts show that Milwaukee
County did not act with regard to Whitaker’s termination;
rather, the facts demonstrate the direct opposite, namely that
Milwaukee County had no power to act.” 17 The court
therefore entered summary judgment for the County.
Ms. Whitaker now appeals. She challenges the district
court’s determinations that (1) it would not consider a joint
employer theory of liability on the merits; and (2) her failure-
to-accommodate claims are outside the scope of her EEOC
charge.
II
DISCUSSION
A.
Ms. Whitaker’s amended complaint includes several
allegations that there was an agency relationship between
the County and Wisconsin DHS such that the County could
be liable for discriminatory acts by DHS employees.
Ms. Whitaker apparently abandoned this theory at some
point before summary judgment, where she argued, in
opposition to the County’s motion, that the County and
Wisconsin DHS were “joint employers.” The district court
rejected the joint employer argument on the basis that it was
raised inappropriately in response to summary judgment
and was an attempt to amend the pleadings. The court relied
17 Id. at 16.
No. 13-3735 11
principally on Shanahan v. City of Chicago, 82 F.3d 776 (7th
Cir. 1996), and Abuelyaman v. Illinois State University, 667 F.3d
800 (7th Cir. 2011). The district court viewed these cases as
standing for the principle that a party may neither amend its
pleadings by argument in opposition to summary judgment
nor introduce new theories of liability in opposition to
summary judgment.
We start our own analysis with a review of the principal
cases upon which the district court relied. In Shanahan, the
plaintiff made a First Amendment claim, alleging that he
had been demoted because he had refused to hire political
supporters of the mayor. 82 F.3d at 777. When the
defendants responded at summary judgment that they did
not know the political affiliation of the relevant employees,
the plaintiff responded that it was in fact the employees’
union membership and the union’s support for the mayor
that motivated the action. We determined that the district
court properly denied leave to amend the complaint to add
this allegation when it was raised in response to summary
judgment. Notably, we commented that the plaintiff’s action
was an impermissible attempt to “amend his complaint.” Id.
at 781. The plaintiff had altered radically the factual basis of
his complaint at summary judgment. Similarly, in
Abueleyaman, a professor alleged various forms of
discrimination and retaliation in his complaint. 667 F.3d at
806. In his response to a summary judgment motion, he
added an entirely new factual basis for retaliation not
previously presented. Again, we approved of the district
court’s refusal to consider the new “theory.” Id. at 813–14.
In each case, new and drastic factual allegations of
motivation for the discriminating party’s action were
12 No. 13-3735
proffered at the summary judgment stage. The plaintiff
sought to introduce a new factual basis not previously
presented in the pleadings for a claim. These cases are
compatible with our cases that emphasize that it is factual
allegations, not legal theories, that must be pleaded in a
complaint. In Del Marcelle v. Brown County Corp., 680 F.3d
887 (7th Cir. 2012) (en banc), we stated explicitly that
“plaintiffs are not required to plead legal theories, even in
the new world of pleading that is developing in the wake of
the Supreme Court’s decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009).” Del Marcelle, 680 F.3d at 909 (parallel citations
omitted). 18 More recently, the Supreme Court has confirmed
explicitly this principle. Johnson v. City of Shelby, 135 S. Ct.
346, 347 (2014) (per curiam). In the cases relied upon by the
district court, new factual bases for claims or legal claims
were at the center of the analysis.
18See also Alden Mgmt. Servs., Inc. v. Chao, 532 F.3d 578, 582 (7th Cir.
2008) (“Courts don’t hold a party to its first legal theory. One does not
plead law… .”); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078
(7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and
specifying an incorrect theory is not fatal.”).
A plaintiff may, of course, plead herself out of court with factual
allegations that disprove the theory she ultimately pursues, but that did
not occur in this case. Ms. Whitaker made allegations of agency that she
was not able to support with facts at summary judgment, but her
allegations themselves did not provide the County with any
“impenetrable defense” to her claims. See Tamayo v. Blagojevich, 526 F.3d
1074, 1086 (7th Cir. 2008) (“[O]ur pleading rules do not tolerate factual
inconsistencies in a complaint, [but] they do permit inconsistencies in
legal theories.”).
No. 13-3735 13
The situation presented in the present case is
significantly different and, in our view, requires a different
approach. Ms. Whitaker has alleged, from the beginning,
that the relationship of the County and Wisconsin DHS is
such that the County is liable for the actions of the DHS
supervisors who denied her additional leave and terminated
her through medical separation. This fundamental factual
allegation always has been supported by identical facts
about her employment relationship. There is no material
dispute about those facts. Ms. Whitaker did not attempt to
add a new substantive claim or even a new factual theory of
liability; she offered an alternative legal characterization of
the factual relationship between the two governmental
entities, a characterization that she believes supports her
claim of County liability for DHS’s adverse employment
actions. 19 We do not believe that this new characterization
offered any unfair surprise.
19 The County’s response asserts that Ms. Whitaker took a “directly
contrary” position in her complaint and that her attempted change
“surprise[d]” the County unfairly. Appellee’s Br. 6. Indeed, under certain
limited circumstances, we have held that it is appropriate to hold a
plaintiff to an initial legal theory.
With immaterial exceptions, the rules require only the
pleading of a claim…. So there is no burden on the
plaintiff to justify its altering its original theory. Which is
not to say that such an alteration is always permissible. If the
complaint explicitly or implicitly disclaims certain legal
characterizations of the claim, an effort to retract the
disclaimer may come as a surprise to the defendant and
make it more costly or difficult for him to defend, or
may simply protract the lawsuit inexcusably. Or by tacit
agreement of the parties a possible interpretation of the
14 No. 13-3735
In short, the rule that the district court discerned from
our cases is correct but inapplicable, and Ms. Whitaker
should have been permitted to present her “joint employer”
theory. We therefore consider the merits of that argument
here.
B.
The principal question presented in this appeal is
whether the County can be held liable for actions of
Wisconsin DHS that are alleged to violate the ADA. The
ADA creates a cause of action for qualified individuals with
complaint may simply not be pursued—the case may
develop along quite other lines—and an effort to redirect
the case may cause unreasonable delay even if there is
no surprise to the defendant. In either of these cases the
district court can and should hold the plaintiff to his
original theory.
Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir. 1996) (emphasis
added) (citations omitted). In the present case, however, we cannot
accept this view. Ms. Whitaker’s position is not contrary or surprising in
the manner described in the case law; it simply does not stray
sufficiently from her initial position to be rejected on this basis. See, e.g.,
Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428–30 (7th Cir. 1993)
(plaintiff unable to amend claim where prior position supported
favorable treatment by EPA and change to new position in later litigation
would be unfair and contradictory); Johnson v. Methodist Med. Ctr. of Ill.,
10 F.3d 1300, 1304 (7th Cir. 1993) (plaintiff unable to amend to add
allegations that medical negligence was caused in ways not
contemplated by the original complaint, including different actors, at a
late stage in proceedings). Furthermore, the County’s contention that it
was surprised is unpersuasive when the alternate legal basis for liability
is based on the same allegations and the undisputed factual relationship
between the relevant entities.
No. 13-3735 15
a disability where there has been “discriminat[ion]…in
regard to…[the] discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment” by a “covered entity.” 42 U.S.C. §
12112(a). A “covered entity” includes an employer meeting
certain minimum qualifications, see id. § 12111(2), (5)(A), and
it is undisputed that Wisconsin DHS and the County both
meet the minimum statutory qualifications. But in order to
assert her rights under the ADA as an employee, Ms.
Whitaker must establish that she was “employed by” the
employer that she seeks to hold liable. Id. § 12111(4).
It is undisputed that, by virtue of 2009 Wisconsin Act 15,
Ms. Whitaker was retained, as a formal matter, as an
employee of the County. See Wis. Stat. § 49.825(3). She
remained a member of the union of County employees, and
the County remained responsible for the “administrative
tasks related to payroll and benefits” for Ms. Whitaker and
her colleagues. Id. § 49.825(3)(c). Her supervisors, who are
the relevant decisionmakers in the present case, however,
were required by statute to be employees of Wisconsin DHS.
Id. § 49.825(3)(a). Those State employees had the exclusive
“authority to…discharge[]…and…supervise[] county
employees” and controlled the day-to-day activities of staff
who worked for the MilES unit. Id. § 49.825(3)(b)(1).
In light of the complex relationships that sometimes exist
between individuals and the modern entities for which they
work, courts have fashioned a number of tests that
determine when a particular employer may be subject to
liability under the ADA and related civil rights statutes.
Specifically, when more than one entity is potentially
involved in the employment relationship, two prominent
16 No. 13-3735
tests have been applied by various courts to determine who
qualifies as an employer under the statute. One argues that
two nominally distinct entities in fact comprise a “single
employer”; the other acknowledges that two entities are, in
fact, distinct, but concerns whether each exercises sufficient
control over the terms and conditions of employment such
that they are “joint employers,” either of which faces
potential liability under the statute. See, e.g., Knitter v. Corvias
Military Living, LLC, 758 F.3d 1214, 1226–27 (10th Cir. 2014).
Ms. Whitaker focuses on the joint employer test.
The joint employer concept derives from labor law, see,
e.g., DiMucci Constr. Co. v. NLRB, 24 F.3d 949, 953 (7th Cir.
1994) (citing Boire v. Greyhound Corp., 376 U.S. 473 (1964)
(representation case)); it has been employed infrequently in
employment cases in this circuit, see, e.g., Robinson v.
Sappington, 351 F.3d 317, 332 n.9 & 337–39 (7th Cir. 2003)
(noting the possibility that an entity qualified as a joint
employer in Title VII case, but finding it unnecessary to
resolve the question).
In the traditional labor law context, the “joint-employer”
language is designed to identify the business entities that
control the employees’ terms and conditions of employment.
As one of our sister circuits has stated:
The basis of the finding [of a joint employer] is
simply that one employer while contracting in
good faith with an otherwise independent
company, has retained for itself sufficient
control of the terms and conditions of
employment of the employees who are
employed by the other employer. Thus, the
“joint employer” concept recognizes that the
No. 13-3735 17
business entities involved are in fact separate
but that they share or co-determine those
matters governing the essential terms and
conditions of employment.
NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123
(3d Cir. 1982) (emphasis in original) (citation omitted). In the
same context, we have stated that an entity other than the
actual employer may be considered a “joint employer” “only
if it exerted significant control over” the employee. G.
Heileman Brewing Co. v. NLRB, 879 F.2d 1526, 1530 (7th Cir.
1989). “Factors to consider in determining joint employer
status are (1) supervision of employees’ day-to-day
activities; (2) authority to hire or fire employees; (3)
promulgation of work rules and conditions of employment;
(4) issuance of work assignments; and (5) issuance of
operating instructions.” DiMucci Constr. Co., 24 F.3d at 952.
We also have held, however, “that for a joint-employer
relationship to exist, each alleged employer must exercise
control over the working conditions of the employee,
although the ultimate determination will vary depending on
the specific facts of each case.” Moldenhauer v. Tazewell-Pekin
Consol. Commc’ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008)
(emphasis added) (deciding a case under the FMLA, which
includes joint employer regulations promulgated by the
Department of Labor).
We regard reliance on traditional labor law principles to
be an awkward approach to determining Title VII liability.
The issue previously has been put before us, but we have not
employed the labor standards in the manner now urged by
Ms. Whitaker. Robinson v. Sappington, 351 F.3d 317, was a
Title VII case also involving employees divided among the
18 No. 13-3735
state and county and in which the plaintiff alleged joint
employment by the county and the state. Her harasser, a
state court judge, was clearly an employee of the state. She
sued various state officials in their official capacities, and she
also sued the county. In addressing the issue, we noted:
[T]here is at least a preliminary question of
who, or what entity, is the proper defendant
with respect to Ms. Robinson’s Title VII action.
It is only the employee’s employer who may be
held liable under Title VII. We explained in
Williams [v. Banning, 72 F.3d 552, 553 (7th Cir.
1995),] that the term “employer” as used in
Title VII is a statutory expression of traditional
principles of respondeat superior liability. In
the context of a sexual harassment claim, the
employee’s employer usually is that of the
harassing supervisor, and thus it is rational
and consistent with standard agency principles
to impute liability to the employer based on
the actions of the supervisory employee.
In the present case, there is no question that
[the defendants] are employees of the State of
Illinois. As such, any harassment inflicted by
them on lower-level state employees under
their direction can be imputed to the State of
Illinois.
Id. at 332 n.9 (citation omitted). With respect to whether the
defendant county could face liability for the actions of the
state-employed judge, we noted that the plaintiff had put
forward such a claim, but we found it unnecessary to
resolve. Id. at 337–39.
No. 13-3735 19
Some of our sister circuits have held explicitly that
establishing a “joint employer” relationship does not create
liability in the co-employer for actions taken by the other
employer. See Torres-Negrón v. Merck & Co., 488 F.3d 34, 41
n.6 (1st Cir. 2007) (“[J]oint-employer liability does not by
itself implicate vicarious liability.…[A] finding that two
companies are an employee’s ‘joint employers’ only affects
each employer’s liability to the employee for their own
actions, not for each other’s actions….” (emphasis in
original)); see also id. (citing Virgo v. Riviera Beach Assoc., 30
F.3d 1350, 1359–63 (11th Cir. 1994), for the proposition that
agency principles apply to determine liability of each
company, even when a joint employer relationship has been
found); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236,
1244-45 (11th Cir. 1998) (finding no liability, regardless of the
technical outcome of the joint employer inquiry, where the
defendant entity had no involvement in the challenged
employment action). 20
This view finds support in the EEOC’s own Compliance
Manual. The relevant guidance addressing joint
employment relationships suggests that the purpose of
establishing joint employer status is to make an entity other
than the principal employer liable for conduct relating to a
specific employee. Written for the specific context of
temporary employment agencies sending employees to
20 Another circuit explicitly has reserved the question. See Sandoval v.
City of Boulder, Colorado, 388 F.3d 1312, 1324 n.4 (10th Cir. 2004) (“Because
we find no joint employer relationship we need not reach the question of
what the scope of one joint employer’s vicarious liability would be for
actions of its partner in which it did not participate or over which it had
limited or no control.”).
20 No. 13-3735
clients, the guidance specifically addresses whether, when
the firm and client qualify as joint employers, the firm can be
responsible for discriminatory actions taken by the client. It
concludes:
The firm is liable if it participates in the
client’s discrimination. For example, if the firm
honors its client’s request to remove a worker
from a job assignment for a discriminatory
reason and replace him or her with an
individual outside the worker’s protected class,
the firm is liable for the discriminatory
discharge. The firm also is liable if it knew or
should have known about the client’s discrimination
and failed to undertake prompt corrective measures
within its control.
EEOC, No. 915.002, Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary
Employment Agencies and Other Staffing Firms, at 2260
(1997) (emphasis added). We have no reason to depart from
the course set by the other circuits and the view expressed
by the agency charged with the administration of the
statute. 21
21The secondary literature confirms the general purpose of joint
employer liability as bringing another entity under the statute. See
Barbara Lindemann & Paul Grossman, Employment Discrimination Law
1312 (3d ed. 1996) (noting that the joint employer “theory generally is
used to obtain jurisdiction over a company that is unrelated to the
employer-in-fact but which exercises sufficient day-to-day control over a
charging party’s work to be treated as a co-employer of the charging
party”).
No. 13-3735 21
Here, nothing in the record suggests that the County
participated in the alleged discriminatory conduct or failed
to take corrective measures within its control. The use of the
joint-employer device here is an attempt to obtain relief for
alleged State-employee misconduct despite the State’s
immunity under the ADA, see generally Bd. of Trs. of Univ. of
Alabama v. Garrett, 531 U.S. 356, 374 (2001), and despite Ms.
Whitaker’s delayed and unsuccessful attempt to re-add the
State as a defendant with new claims under the
Rehabilitation Act.
C.
Ms. Whitaker also asks that we review the district court’s
decision that her reasonable accommodation claims were
barred because she had failed to raise them in her original
EEOC complaint. We begin by examining the principles that
must govern our decision.
An ADA plaintiff must file a charge with the EEOC
before bringing a court action against an employer. 42 U.S.C.
§ 12117(a) (incorporating multiple sections, including 42
U.S.C. § 2000e-5(e)(1) and (f)(1)). “[A] plaintiff is barred from
raising a claim in the district court that had not been raised
in his or her EEOC charge unless the claim is reasonably
related to one of the EEOC charges and can be expected to
develop from an investigation into the charges actually
raised.” Green, 197 F.3d at 898; see also Rush v. McDonald’s
Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (“An aggrieved
employee may not complain to the EEOC of only certain
instances of discrimination, and then seek judicial relief for
different instances of discrimination.”). We have said that in
22 No. 13-3735
order for claims to be reasonably related to one another,
there must be “a factual relationship between them.” Cheek v.
W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994). This
means that the EEOC charge and the complaint must, at
minimum, “describe the same conduct and implicate the same
individuals.” Id. (emphasis in original). With these principles
in mind, we turn to the situation now before us.
Ms. Whitaker’s charge read:
I have been out on a medical leave of absence
since September 1, 2010. In a letter dated
October 25, 2010 I was notified by Vanessa
Robertson, Deputy Director of MILES, that I
would be terminated if I failed to return to
work by November 8, 2010. I am unable to
return at that time due to medical reasons. I
believe that I have been discharged on the
basis of my disability in violation of Title I of
the Americans with Disabilities Act of 1990.[ 22]
The district court, and the County, rely exclusively on
Green, 197 F.3d 894, in which we stated:
[A] failure to accommodate claim is separate
and distinct from a claim of discriminatory
treatment under the ADA. In fact, the two
types of claims are analyzed differently under
the law. Therefore, they are not like or
reasonably related to one another, and one
cannot expect a failure to accommodate claim
to develop from an investigation into a claim
22 R.64-1 at 54.
No. 13-3735 23
that an employee was terminated because of a
disability.
Id. at 898 (internal citations omitted).
The EEOC, appearing as amicus curiae, suggests, at least
obliquely, that some of the language in these cases is more
rigid than appropriate if that language is to be read as
stating a general proposition of law rather than a
commentary on the factual circumstances in Green. It takes
no issue with our statement in Green that a claim not raised
in an EEOC charge can be raised in the district court only if
that claim “‘is reasonably related to one of the EEOC charges
and can be expected to develop from an investigation into
the charges actually raised.’” 23 In the EEOC’s view, there can
be cases where a discriminatory termination claim can be so
closely related to a reasonable accommodation claim that it
would be appropriate to consider an unstated reasonable
accommodation claim along with a stated discriminatory
discharge claim. In its view, in Green, there was no factual
connection between the discharge for various forms of
employee misconduct and the employee’s requests for
working conditions suitable to her disability. Here, by
contrast, suggests the EEOC, an investigation of the
wrongful termination claim inevitably would address her
requests for an extension for her leave, and the summary
judgment record supports that it did. 24
23 Br. of the EEOC as Amicus Curiae Supporting Appellant at 6
(quoting Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th
Cir. 1999)).
24 See R.64-1 at 55.
24 No. 13-3735
Given our determination, earlier in this opinion, that the
County cannot be held liable for the personnel actions of the
State, this case presents no occasion for us to determine
whether Ms. Whitaker’s accommodation claims concerning
additional leave, denied by State employees, can be
considered even though they were not raised in the EEOC
complaint. Any refinement of our approach to Green must
therefore await a case in which the issue is necessary for
decision. 25
We now turn to Ms. Whitaker’s other accommodation
claim. She points to the DHS letter of November 15, 2010,
informing her of her imminent discharge. In that letter, DHS
recites that, if she is in fact terminated, she would be referred
to Sue Chase, the Job Accommodations Coordinator for
Milwaukee County. According to the letter,
Ms. Chase will work[] with individuals with
severe disabilities to seek alternative civil
service positions in Milwaukee county
governments through an alternative
certification process provided by the DECA
program. Employees who have permanent
medical restrictions are referred to this
program[ and] are placed on a medical leave of
absence for up to six months by the
departments. This period is used by the Job
Accommodation Coordinator to work with
county central Human Resources to locate
placement for the affected staff. If no job
25 We appreciate the EEOC’s assistance in our consideration of this
case.
No. 13-3735 25
placement is possible at the end of the six
months, then the department moves forward
with separation from employment through the
Personnel Review Board.[26]
Ms. Whitaker claims that, because this referral and new
placement never materialized, the County ought to be held
responsible for a failure to accommodate her disability.
Like her claims that DHS should have granted her an
extension of leave, this claim was not raised in her EEOC
charge, but was raised and preserved adequately at each
stage of her federal court litigation. At first glance, this claim
might appear to present the situation to which the EEOC
invites our attention. Here, it might be argued, the offer of
accommodation is inextricably linked to the discharge and
therefore certainly within the expected purview of an EEOC
investigation of the discharge. Several factors militate
against such a characterization. First, we think that the
referral described in the letter contemplated post-termination
assistance to Ms. Whitaker. Second, any failure to make the
referral on the part of DHS is, for the reasons we have
already discussed, not properly before us since DHS is not,
at this point, a party to this litigation. Finally—and most
importantly—the officer of County government responsible
for the administration of this program has stated by
affidavit, submitted in support of summary judgment, that
Ms. Whitaker was not referred to the program and,
furthermore, that, even if she had been referred, the program
had no authority to transfer an employee who was part of
26 R.64-1 at 66–67.
26 No. 13-3735
the MilES program. Ms. Whitaker has not answered
satisfactorily the factual assertions of this affidavit.
Accordingly, we must conclude that the district court
properly granted summary judgment on this claim.
Conclusion
Regardless of whether the State of Wisconsin was a joint
employer of Ms. Whitaker, the County bears no
responsibility for the actions of State employees who
supervised Ms. Whitaker. With respect to the County’s own
actions for allegedly failing to accommodate her disability,
Ms. Whitaker has not fulfilled her administrative exhaustion
requirements, and we therefore do not address her claims.
The judgment of the district court for the County is affirmed.
AFFIRMED