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Case: 3:13-cv-00105-wmc Document #: 13 Filed: 07/30/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN




THOMAS J. TADDER,

v.













Plaintiff,

OPINION AND ORDER

13-cv-105-wmc

UNIVERSITY OF WISCONSIN-ROCK COUNTY,
THE BOARD OF REGENTS OF THE UNIVERSITY OF
WISCONSIN SYSTEM,
BRENT SMITH, and RAY CROSS,


Defendants.




In this employment discrimination action, plaintiff Thomas Tadder seeks damages

and equitable relief for defendants’ alleged violations of Title I of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112, and the Rehabilitation Act of 1973, as

amended, 29 U.S.C. § 794, from defendants University of Wisconsin–Rock County, the

Board of Regents of the University of Wisconsin System (“the Board”), Brent Smith in

his official capacity as the President of the Board of Regents of the University of

Wisconsin System, and Ray Cross in his official capacity as Chancellor of the UW

Colleges and UW Extensions. In their motion to dismiss, defendants assert that: (1) the

University of Wisconsin–Rock County is not a “suable” entity; (2) Tadder pleads

insufficient facts with respect to his Rehabilitation Act claim to satisfy the requirements

of Fed. R. Civ. P. 8(a); (3) Smith and Cross cannot be sued in their official capacities,

because the complaint fails to allege their involvement in any violations of the ADA or

Rehabilitation Act or, alternatively, their inclusion is redundant; (4) sovereign immunity

under the Eleventh Amendment bars Tadder’s ADA claims action against all defendants;

Case: 3:13-cv-00105-wmc Document #: 13 Filed: 07/30/13 Page 2 of 13

and (5) the claims for Tadder’s punitive damages are barred under the ADA and

Rehabilitation Act. (Dkt. #6). For the reasons set forth below, defendants’ motion to

dismiss Tadder’s complaint will be granted in part and denied in part.



BACKGROUND

Tadder was hired by the Custodial Department of the University of Wisconsin–

Madison for a position as “Building Maintenance Helper 2” in February of 1983. His

appointment was the result of an initiative to employ individuals with mental or physical

disabilities. With reasonable workplace accommodations, Tadder worked at the Madison

campus until 1987, at which time he applied for and accepted a similar position at UW-

Rock County. Tadder began working at the Rock County campus on January 4, 1988,

where his job description included mopping floors, vacuuming carpets, cleaning

blackboards and removing trash. Tadder alleges that he performed these essential

functions successfully again with reasonable accommodations. At all times material to

this action, defendants were aware of Tadder’s need

for certain workplace

accommodations.

For purposes of this motion, the court construes all of Tadder’s factual allegations

as true and draws all reasonable inferences in his favor. Fed. R. Civ. P. 12(b)(6); Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

In 1994, Michael W. Connor became Tadder’s first-line supervisor. Tadder

alleges that Connor was singularly critical of his work performance, complaining about



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Tadder’s work pace and his inability to perform certain tasks due to his disability, such as

operate a lawnmower or snowblower.

On February 7, 2008, while working a late afternoon/night shift, Tadder fell and

injured his ankle. Tadder’s injury precluded him from both (1) completing certain tasks

that night, and (2) working for the next week. Tadder notified supervisory personnel of

the injury and returned to work a week later.

Approximately two months later, on April 10, 2008, Connor told Tadder that he

was fired. He also gave Tadder a letter which stated that his termination was for failure

to remove garbage from his cleaning supply closet and leaving the maintenance shop

unlocked on February 7, 2008, the same night Tadder injured his ankle. Over the

University’s objection that Tadder was ineligible for benefits, having been terminated for

cause, Tadder later applied for and received unemployment benefits. Tadder also filed

timely charges of discrimination pursuant to Title I of the ADA.

The United States Equal Employment Opportunity Commission (“EEOC”)

determined on October 24, 2011, that UW-Rock County is an employer within the

meaning of the ADA; Tadder is a qualified individual with a disability; and UW-Rock

County discriminated against Tadder by failing to provide reasonable accommodations

and by terminating him. On November 16, 2012, the EEOC and the Department of

Justice issued Tadder a notice of a right to sue within 90 days.







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Case: 3:13-cv-00105-wmc Document #: 13 Filed: 07/30/13 Page 4 of 13

I. Status of UW-Rock County as a Suable Entity

OPINION

Defendants first contend that UW-Rock County is not competent to sue and be

sued under Wisconsin law. They are correct. See Derby v. Univ. of Wis., 54 F.R.D. 599,

600 (E.D. Wis. 1972), aff’d 489 F.2d 757 (7th Cir. 1973) (dismissing suit against UW-

Madison and UW-Parkside because they are not natural or legal persons); Alawiye v.

Univ. of Wis.-Madison, No. 06-C-233-S, 2006 U.S. Dist. LEXIS 52888, at *2 (W.D. Wis.

July 25, 2006) (dismissing suit against UW-Madison because it is a non-suable entity).

Tadder concedes that this case law prevails and has agreed to dismiss his claims against

UW-Rock County.



II. Rehabilitation Act Claim

A. Board of Regents

Defendants move to dismiss Tadder’s Rehabilitation Act claims on grounds that

the alleged facts fail to show (1) he is a “qualified individual with a disability” and (2) he

was discriminated against because of this disability, pointing to the pleading standards

set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965

(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 1940 (2009).

Defendants argue that Tadder’s allegations describing his disabilities amount to legal

conclusions, not facts, and fail to state a plausible claim.

The basic standards for pleading in federal court are set out in Fed. R. Civ. P.

8(a)(2), which requires a plaintiff to make a short and plain statement showing



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entitlement to relief under a cause of action. As defendants note, the Supreme Court has

interpreted this to mean that (1) every element of each cause of action must be alleged;

and (2) the surrounding factual allegations must be sufficient to raise the existence of

each element above the level of speculation and into the realm of plausibility. Twombly,

550 U.S. at 556; Iqbal, 556 U.S. at 663. This does not mean, however, that a federal

court is precluded from drawing inferences or using its common sense to determine what

is plausible. Iqbal, 556 U.S. at 663-64. The Seventh Circuit has stated that plausibility

requires only that the plaintiff “give enough details about the subject-matter of the case

to present a story that holds together.” McCauley v. City of Chi., 671 F.3d 611, 616 (7th

Cir. 2011).

A plaintiff claiming discrimination by a recipient of federal funds under the

Rehabilitation Act, 29 U.S.C. § 794 & §794a, must establish (1) that he or she is an

individual with a disability; (2) who is otherwise qualified; (3) who has been excluded

from a program (in this case, employment) solely because of the disability; and (4) the

program at issue receives federal funds. Byrne v. Bd. of Educ., Sch. Dist. of West Allis-West

Milwaukee, 979 F.2d 560, 563 (7th Cir. 1992).1 Defendants appear to concede that

Tadder has adequately pled the second and fourth requirements of a Rehabilitation Act

claim, choosing to rest their motion to dismiss on the first and third elements.

Accordingly, these elements will be the focus for this court.

1. Allegations of a disability defined by the Rehabilitation Act.


1 Contrary to defendants’ assertions, Tadder need not expressly plead that he requested
reasonable accommodations for his disability, even though he may be required to offer
proof he did so on summary judgment.



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One way to be considered “disabled” under the Rehabilitation Act is to meet the

definition of disabled under the ADA.2 Id. at 563; 29 U.S.C. § 705(20)(B). A person

has a “disability” under the ADA if he or she has “a physical or mental impairment that

substantially limits one or more major life activities, has a record of like impairment, or is

perceived as having such impairment.” 42 U.S.C. § 12102(1). Examples of major life

activities include caring for oneself, performing manual tasks, reaching, lifting, bending,

speaking, learning, communicating, interacting with others, and working. Id. at §

12102(2)A). A major life activity “is substantially limited when the person is unable to

perform it or is significantly restricted in the manner, condition or duration in which she

can perform it in comparison to the general population.” Ermer v. Taylor Cnty, No. 05-C-

346-C, 2006 U.S. Dist. LEXIS 12514, at *4-5 (W.D. Wis. Mar. 23, 2006) (internal

quotations and citations omitted).

Tadder alleges that he was hired by the University System as part of an effort to

recruit and employ individuals with mental and/or physical disabilities. He was given

supervision by other staff members and was restricted to performing tasks such as

mopping floors, vacuuming, cleaning blackboards and removing trash, all of which

apparently fell within his ability with reasonable accommodation. In contrast, because

Tadder could not operate a lawnmower or a snowblower, his supervisor, Michael Connor,

did not require him to do so. Thus, even if not suffering from a disability that


2 The ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, changes
relevant portions of the ADA, effective January 1, 2009. Pub.L. 110-325, § 8, 122 Stat.
3559. But the amendments are not retroactive. Fredricksen v. UPS, 581 F.3d 516, 521 n.
1 (7th Cir. 2009). Because the claims in this case accrued before January 1, 2009, the
court must apply the pre-amendment version of the law.



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substantially limits his ability to perform major life tasks, Tadder has at least alleged

sufficient facts to plausibly support the conclusion that he was perceived by his employer

to have such a disability. This by itself satisfies the first requirement of the Rehabilitation

Act. See 42 U.S.C. § 12102(1) (“or is perceived as having such impairment.”).

Tadder also sufficiently alleges enough facts to support a claim that he does suffer

from an actual disability. He alleges that the EEOC found him disabled and that he was

diagnosed by a Vocational Rehabilitation Counselor in 1982 as having a substantial

vocational or occupational handicap. Although he does not point to a specific medical

diagnosis leading to the vocational diagnosis (other than that he has diabetes),

defendants cite no case holding that a plaintiff must allege an actual medical diagnosis at

the pleading stage. Whatever its clinical name, Tadder alleges that his disability

substantially limits his ability to work. Moreover, the alleged facts render this assertion

plausible.

2. Discrimination based solely because of disability

Although defendants unsurprisingly dispute the reason for Tadder’s termination,

at the pleading stage the court only looks to whether Tadder’s allegations of motive are

plausible and rise above speculation. Iqbal, 556 U.S. at 663; Byrne, 979 F.2d at 563.

Tadder has pled that his supervisor, Michael Connor, was frequently critical of Tadder’s

inability to perform certain tasks, which were made impossible by his disability. Tadder

also alleges a timeline of events — his failure to empty garbage and unlock a cabinet,

followed by termination almost two months later by Connor, with this incident being



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cited as the reason — that permits a plausible inference that the incident was a pretext

offered by Connor to hide a discriminatory purpose.

B. Smith and Cross

Because Tadder’s claim against the Board of Regents may proceed, Smith and Cross

will be dismissed with respect to the Rehabilitation Act claim. To the extent sued in

their official capacity, their presence is redundant. To the extent sued in their personal

capacity, neither of the defendants is (personally) an entity refusing Tadder access to a

federally-funded program, and thus there can be no cause of action under the

Rehabilitation Act. Nor is there a viable action for deprivation of a federal statutory

right under 42 U.S.C. § 1983. See Huebschen v. Dep’t of Health and Soc. Serv., 716 F.2d

1167, 1170 (7th Cir. 1983) (“[A] plaintiff cannot bring an action under section 1983

based upon Title VII against a person who could not be sued directly under Title VII.”);

Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (“Alsbrook cannot bring

a section 1983 claim against the commissioners in their individual capacities when, as we

have earlier concluded, he could not do so directly under the ADA.”).



III. ADA Title I Claim

A. Board of Regents

The Board of Regents, as the representative entity of the University of Wisconsin

system and therefore Tadder’s employer, could be at least theoretically liable for any

potential ADA violation caused by its agent, Michael Connor. See Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 70 (1986) (“[C]ourts have consistently held employers liable for



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the discriminatory discharges of employees by supervisory personnel.”). The Board

argues, however, that it cannot be subjected to an ADA claim in federal court because of

sovereign immunity granted by the Eleventh Amendment.3 In Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 356 (2001), the Supreme Court expressly held

just that: the Eleventh Amendment prohibits private parties from suing states in federal

court for monetary damages under Title I of the ADA. Id. at 372-73. Because the Board

is considered to be an arm of the State of Wisconsin, it can claim sovereign immunity as

if Tadder had named the State itself as a defendant. See Joseph v. Bd. of Regents of Univ. of

Wis. Sys., 432 F.3d 746, 749 (7th Cir. 2005) (holding that the Board is an “arm of the

state” for Eleventh Amendment purposes).



Tadder seems to dispute defendants’ characterization of the Board as an arm of

the state by pointing to Derby v. University of Wisconsin, 54 F.R.D. 599 (E.D. Wis. 1972),

asserting that the court in that case allowed the Board of Regents to be named as a

defendant in a federal lawsuit. As defendants counter, however, there is no indication

that the Derby court was presented with a motion to dismiss the Board on sovereign

immunity grounds. Furthermore, it is unclear the Board was even a defendant. Derby

allows for “members of the board of regents” to be retained as defendants for purposes of

pursuing equitable relief under the Ex parte Young exception; it does not mention the

Board of Regents in its corporate capacity. Id. at 600. Most importantly, the Eastern

District of Wisconsin’s decision in Derby predates the Seventh Circuit’s Joseph decision

3 The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by citizens of another state, or by citizens or subjects of any
foreign state.” U.S. Const. amend. XI.



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and to the extent inconsistent with that decision, is overruled by it. Because Eleventh

Amendment sovereign immunity applies to Title I of the ADA, that claim must be

dismissed with respect to defendant Board of Regents.



B. Defendants Smith and Cross

Dismissal of the Board does not leave Tadder completely without recourse under

the ADA. He may sue defendants Smith and Cross who, as individual persons, may be

sued in their official capacities under Title I for prospective injunctive relief without

violating the Eleventh Amendment. Ex parte Young, 209 U.S. 123, 167 (1908); Idaho v.

Coeur D'Alene Tribe, 521 U.S. 261, 281 (1997). Still, a state official can be sued in his

official capacity under Ex parte Young only to correct an ongoing violation of federal law

and only if he has “some connection” with the challenged violation. 209 U.S. at 157;

Entm’t Software Ass’n v. Blagojevich, 404 F. Supp. 2d 1051, 1070 (N.D. Ill. 2005). While

the Supreme Court has not elaborated on the meaning of the phrase “some connection”

in concrete terms, it seems clear that a state official’s generalized duty to uphold the law

is insufficient by itself to establish “some connection” to an illegal state practice or law.

See, e.g., 1st Westco Corp. v. Sch. Dist. of Phil., 6 F.3d 108, 115 (3d Cir. 1993). Here,

Tadder has alleged more than an abstract connection between Smith and Cross and the

challenged employment practice. As representatives of the Board of Regents of the

University of Wisconsin System and Chancellor of the UW Colleges and UW-

Extensions, respectively, Smith and Cross appear capable of carrying out the prospective

injunctive relief to which Tadder might be entitled, including reinstatement.



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Having established that Smith and Cross have the necessary connection to the

enforcement of the ADA as it relates to Tadder, therefore, the court must consider

whether Tadder’s complaint (1) adequately alleges an ongoing violation of the ADA; and

(2) seeks prospective injunctive relief. As to the first inquiry, the court initially notes that

claims under the ADA and the Rehabilitation Act are largely “coextensive.” Jaros v. Ill.

Dep’t. of Corr., 684 F.3d 667, 671-72 (7th Cir. 2012). In successfully alleging a claim for

a violation of the Rehabilitation Act (see discussion supra), Tadder has alleged a viable

discrimination claim against his employer under the ADA as well. Defendants respond

that even if true, Tadder has no cause of action against Smith and Cross, who appear in

the caption of the complaint and in the introductory section identifying the parties of the

suit, but nowhere in the body of the complaint in connection with Tadder’s termination.

Defendants essentially argue that without any active wrongdoing on the part of these two

defendants, there can be no claim against them. On the contrary, suing Smith and Cross

in their official capacities is an acceptable method to sue the Board of Regents.

Moreover, as just noted the Board — as Tadder’s employer — is responsible under the

ADA for the discriminatory firing that allegedly took place in 2008 through the act of its

agent Michael Connor.

To answer the second inquiry, the court turns to the complaint’s requested relief,

since the Ex parte Young exception applies only to requests for prospective relief to correct

an “ongoing violation” of federal law. Courts and commentators have noted the

difficulty of distinguishing between retroactive and prospective relief in the context of the

Ex parte Young exception. See generally Edelman v. Jordan, 415 U.S. 651, 677 (1974)



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(distinguishing between prospective and retroactive relief); Cory v. White, 457 U.S. 85,

90-91 (1982); Erwin Chemerinksy, Federal Jurisdiction 456 (6th ed. 2012). Tadder’s

complaint breaks down fairly straightforwardly with respect to the three types of relief

sought:

First, Tadder’s request for reinstatement qualifies as prospective relief. See Elliott

v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986) (holding that reinstatement clearly falls

outside the prohibitions of the Eleventh Amendment); Nelson v. Univ. of Tex., 535 F.3d

318, 322 (5th Cir. Tex. 2008) (noting that the 5th Circuit has always treated Ex parte

Young as an appropriate vehicle for seeking reinstatement).

Second, Tadder’s request for back pay is best characterized as a retroactive award

rather than a prospective injunction because it would require “payment of funds from the

state treasury.” Edelman, 415 U.S. at 677. The fact that back payment is characterized

in the complaint and supporting brief as equitable relief is irrelevant, because the

Eleventh Amendment prohibits all awards of retroactive damages to be paid from the

state treasury. Id.

Third, Tadder’s requested injunction against defendants’ future discriminatory

practices is prospective relief.4


4 Defendants also note that Tadder’s request for punitive damages should be dismissed,
because punitive damages are not available remedies for violations of the ADA or the
Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189 (2002). Tadder has since
acknowledged this rule and agreed to strike the request for punitive damages from the
complaint.



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ORDER

IT IS ORDERED that:


(1)

(2)



(3)

(4)

Defendants’ motion to dismiss plaintiff’s complaint (dkt. #6) is
GRANTED with respect to defendant UW-Rock County.

Defendants’ motion to dismiss plaintiff’s ADA claim is GRANTED
with respect to claims against the Board of Regents of the University
of Wisconsin System and all claims seeking back pay, and is
DENIED with respect to other relief sought against defendants
Brent Smith and Ray Cross in their official capacity.

Defendants’ motion to dismiss plaintiff’s Rehabilitation Act claim is
DENIED with respect to the Board of Regents of the University of
Wisconsin System and GRANTED with respect to defendants Brent
Smith and Ray Cross.

Defendants’ motion to strike plaintiff’s request for punitive damages
is GRANTED.

Entered this 30th day of July, 2013.











BY THE COURT:

/s/
___________________________________________
WILLIAM M. CONLEY
District Judge

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