Barbara Wells v. Winnebago County, Illinois , 820 F.3d 864 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1805
BARBARA J. WELLS,
Plaintiff-Appellant,
v.
WINNEBAGO COUNTY, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 C 50030 — Frederick J. Kapala, Judge.
____________________
SUBMITTED MARCH 18, 2016 — DECIDED APRIL 27, 2016
____________________
Before BAUER, EASTERBROOK, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Barbara Wells worked as a
“computer navigator” at the Winnebago County courthouse.
Her job was to help litigants who lack counsel deal with the
judicial system’s requirements. She contends in this suit that
before her departure to take what she thought would be a
better job, state and county officials discriminated against
her on the basis of her race (she is black) and disability (she
2 No. 15-1805
suffers from chronic fatigue syndrome). The district court
granted summary judgment to the County, giving two rea-
sons: first, any discrimination was attributable to state rather
than county workers; second, the record would not allow a
reasonable jury to find actionable discrimination.
Evidence would permit a jury to find that Winnebago
County was Wells’s employer, and therefore the entity re-
sponsible for complying with federal employment-
discrimination statutes. The County hired and paid her, was
identified on tax forms as her employer, and so on. The dis-
trict judge observed that most of the decisions that Wells
now labels discriminatory were made by state employees—
the Circuit Court is a unit of state government. The judge
thought that this made the County not responsible.
Yet employers must control the behavior of others in the
workplace, so as to ensure nondiscriminatory working con-
ditions. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). We ex-
plained in Dunn v. Washington County Hospital, 429 F.3d 689,
691 (7th Cir. 2005):
Because liability is direct rather than derivative, it makes no dif-
ference whether the person whose acts are complained of is an
employee, an independent contractor, or for that matter a cus-
tomer. Ability to “control” the actor plays no role. Employees are
not puppets on strings; employers have an arsenal of incentives
and sanctions (including discharge) that can be applied to affect
conduct. It is the use (or failure to use) these options that makes
an employer responsible—and in this respect independent con-
tractors are no different from employees. Indeed, it makes no
difference whether the actor is human. Suppose a patient [at a
hospital] kept a macaw in his room, that the bird bit and
scratched women but not men, and that the Hospital did noth-
ing. The Hospital would be responsible for the decision to ex-
No. 15-1805 3
pose women to the working conditions affected by the macaw,
even though the bird (a) was not an employee, and (b) could not
be controlled by reasoning or sanctions. It would be the Hospi-
tal’s responsibility to protect its female employees by excluding
the offending bird from its premises. This is, by the way, the
norm of direct liability in private law as well: a person “can be
subject to liability for harm resulting from his conduct if he is
negligent or reckless in permitting, or failing to prevent, negli-
gent or other tortious conduct by persons, whether or not his
servants or agents, upon premises or with instrumentalities un-
der his control.” Restatement (2d) of Agency § 213(d).
See also Maalik v. International Union of Elevator Constructors,
437 F.3d 650 (7th Cir. 2006). If the district court’s approach
were right, then organizations would be able to avoid their
responsibilities by dividing authority among bureaus, divi-
sions, or agencies. The people who made the decisions could
not be liable, because they would not be “employers”; and
the employers could not be liable, because they let someone
else make the decisions. The federal laws concerning em-
ployment discrimination cannot be so easily evaded.
The district court’s second reason is stronger. Wells’s job
was to assist pro se litigants in the “Winnebago County Legal
Self-Help Center.” Some litigants came on their own; others
were referred by judges or the clerk’s office. Many expected
Wells and other computer navigators to write complaints or
fill in forms for them. When she explained that she was not a
lawyer and could not act as their counselor—though she
could use her computer to find and print forms and instruc-
tions they would find useful—people sometimes became
abusive. One spat on her. Wells asked officials running the
court’s library and administrative staff to create a barrier be-
tween her and the public. She thought that a counter might
do (public on one side, computer navigators on the other),
4 No. 15-1805
though she would have preferred a partition (a wall between
the computer navigators and the public, with an opening,
after the fashion of some banks, through which the public
could speak to the navigators). She also once asked for per-
mission to lock the door behind her when going out, so that
no member of the public would be in the Self-Help Center
when she returned. Wells’s supervisors declined these re-
quests and left her exposed to direct public contact. She has
several other grievances as well, such as lack of access to the
court’s break room and a delayed raise.
She calls all of this race discrimination, but as the district
court observed she produced no evidence that her race
played any role. She was treated the same as the other com-
puter navigators, who were white. She does not contend that
any supervisor said anything about race or used language
with racial connotations.
That leaves her claim about failure to accommodate a
disability, as the Americans with Disabilities Act, 42 U.S.C.
§§ 12111–17, requires. The County concedes that chronic fa-
tigue syndrome is a disability, which can impair memory
and concentration and thus aggravate anxiety. But it main-
tains, and the district judge concluded, that Wells had not
requested a counter or partition as an accommodation of a
disability. True, the record shows that she mentioned anxiety
and at least once a month asked to be placed behind a coun-
ter or partition. But she did not link that anxiety to a qualify-
ing disability. Many people suffer anxiety without being dis-
abled by it. The only time she submitted medical evidence of
a qualifying condition, the relief she requested was time
off—which the County immediately granted. On one later
occasion she requested time off to deal with her chronic fa-
No. 15-1805 5
tigue syndrome, this time without medical documentation,
and again her request was granted. She quit before returning
from this second medical leave.
Interrogatory responses that Wells filed during discovery
assert that she asked for a counter or partition as an accom-
modation of her chronic fatigue syndrome. She does not
maintain, however, that she furnished any medical evidence
to back up her contention that her disability adversely af-
fected her ability to deal with the public in an open setting—
and, perhaps more to the point, she did not rely on these in-
terrogatory responses either in the district court (when op-
posing summary judgment) or in her appellate briefs. In-
stead she has relied exclusively on the many times she told
supervisors about her anxiety.
She needed to establish that the County was required to
treat her references to anxiety as notices of a link between
her disability and her working conditions that would set off
the process of considering possible accommodations. Even
in this litigation she has not offered medical evidence
demonstrating that a reasonable employer would under-
stand every mention of an employee’s anxiety as a disability
or understand, without medical knowledge, how anxiety
and chronic fatigue syndrome are related. Certainly Wells
did not provide such evidence to her employer. “[O]ur cases
have consistently held that disabled employees must make
their employers aware of any nonobvious, medically neces-
sary accommodations with corroborating evidence such as a
doctor’s note or at least orally relaying a statement from a
doctor, before an employer may be required under the
ADA’s reasonableness standard to provide a specific modest
6 No. 15-1805
accommodation”. Ekstrand v. School District of Somerset, 583
F.3d 972, 976 (7th Cir. 2009).
In sum, the two requests that Wells expressly made on
account of disability both sought time off, and both requests
were granted. The record does not show that she supported
any other request with the sort of medical evidence that the
ADA contemplates. The district court therefore properly
granted the County’s motion for summary judgment.
AFFIRMED