Barnes, Verla v. State of Wisconsin Department of Corrections

[[COURTLISTENER_SUBOPINION {"id":"10721669","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                        
             FOR THE WESTERN DISTRICT OF WISCONSIN                       


VERLA BARNES,                                                            

                   Plaintiff,                                            
     v.                                    OPINION and ORDER             

STATE OF WISCONSIN DEPARTMENT                  18-cv-105-jdp             
OF CORRECTIONS,                                                          

                   Defendant.                                            


    A jury awarded plaintiff Verla Barnes $600,000 in compensatory damages on her claims 
that the Wisconsin Department of Corrections violated the Rehabilitation Act, first by failing 
to reasonably accommodate her disability and then by firing her for filing a grievance. The 
court decided Barnes’s requests for equitable relief, including back pay and front pay, awarding 
approximately  $200,000.  Dkt.  103.  Three  motions  are  now  before  the  court:  (1) the 
Department’s motion for judgment as a matter of law and a new trial, Dkt. 114; (2) Barnes’s 
motion for attorney fees, Dkt. 105; and (3) Barnes’s request for costs, Dkt. 104.  
    The Department hasn’t shown that it is entitled to judgment as a matter of law on 
Barnes’s failure-to-accommodate claim. A reasonable jury could find that the Department 
should have allowed Barnes to temporarily work a reduced caseload that was commensurate 
with Barnes’s abilities and the number of hours she was working. But the court agrees with the 
Department  that  Barnes  failed  to  adduce  any  evidence  to  support  a  finding  that  the 
Department terminated her for complaining about disability discrimination. The Department 
may have reached the wrong conclusion when it determined that Barnes had lied on an incident 
report, but the relevant question is “whether the justifications given are honest, not whether 
the sanction imposed was accurate, wise or well considered.” Hague v. Thompson Distribution Co.,
436 F.3d 816, 824
(7th Cir. 2006). Barnes doesn’t point to evidence that the Department is 
lying about its reasons for terminating her, so her retaliation claim must be dismissed. The 
court will also deny without prejudice the Department’s motion for a new trial on damages, 
and Barnes’s motions for fees and costs. The court’s decision on the Department’s motion for 

judgment as a matter of law could significantly affect the analysis for evaluating damages, fees, 
and costs, so it makes sense to take a fresh look at those issues, using the guidance provided in 
this opinion.                                                             

                         BACKGROUND                                      
    Barnes worked as a probation agent for the Department from 1998 to 2016. In 2015, 
she injured her foot on the job. After taking some time off, she transitioned back to work, but 
she says that the Department didn’t give her the accommodation she needed. After a few 
months of allowing Barnes to work part-time, the Department placed Barnes on medical leave 

until she fully recovered. Barnes filed a grievance with the Wisconsin Equal Rights Division 
(ERD) about being placed on leave.                                        
    In January 2016, Barnes filed an incident report about something that happened to her 
while she was on the job outside the Dane County Courthouse. She reported that a woman 
had stumbled into her, almost causing Barnes to fall. Trial Exh. 509. The woman then “tried 
to hit [Barnes] in the face.”
Id.
A man who was with the woman “started calling [Barnes] a fat 
ass nigger.”
Id.
Afterwards, Barnes said that she felt some pain in her back. She also said in the 
incident report that the “entire ordeal could have been avoided” if the Department had better 

accommodated her foot injury.
Id.
After  conducting  an  investigation,  the  Department  determined  that  Barnes  had 
fabricated the incident. The Department relied primarily on video footage from cameras 
outside the courthouse. The footage showed Barnes, but it didn’t show the alleged perpetrators. 
The Department then fired Barnes, relying on a policy that authorized termination for lying. 

Barnes denies that she lied, and she contends that the Department retaliated against her. The 
jury found both that the Department failed to accommodate Barnes and that her termination 
was retaliation for filing a grievance with the ERD.                      

                           ANALYSIS                                      
A.  Motion for judgment as a matter of law                                
    1.  Legal standard                                                   
    The standard for a Rule 50 motion for a judgment as a matter of law is the same as a 
motion for summary judgment: whether a reasonable jury would have a legally sufficient 

evidentiary basis to find in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 
U.S. 242, 250
(1986); Lawson v. Sun Microsystems, Inc.,
791 F.3d 754, 761
(7th Cir. 2015). 
When applying this standard, the court may not weigh the evidence but instead must draw all 
reasonable inferences in favor of the nonmoving party. Ruiz-Cortez v. City of Chicago,
931 F.3d 
592, 601
(7th Cir. 2019).                                                 
    2.  Reasonable accommodation claim                                   
    The Rehabilitation Act requires employers to provide reasonable accommodations to 
employees with a disability. Yochim v. Carson,
935 F.3d 586, 590
(7th Cir. 2019). The jury 

instructions, which neither side objects to in any respect, required Barnes to prove three 
elements to prevail on this claim: (1) the Department was aware that Barnes needed an 
accommodation; (2) the Department failed to provide Barnes a reasonable accommodation; 
and (3) the Department knew that it was substantially likely that it had failed to provide Barnes 
a reasonable accommodation. Dkt. 83.                                      
    Barnes’s brief could be clearer, but the court understands her to be contending that the 

Department  failed to provide  a  reasonable  accommodation  because  it  didn’t  reduce  her 
caseload from September 2015 (when she returned to work part time) until February 2016 
(when her doctor cleared her to work full time).1 Instead, Barnes says that the Department 
initially required her to work a full caseload on a part-time schedule and then forced her to 
take medical leave in January 2016, and she says that both actions were unreasonable. The 
court will first consider the parties’ arguments related to the failure to reduce Barnes’s caseload 
and then to the Department’s decision to place Barnes on medical leave.   
      a.  Failure to adequately reduce Barnes’s caseload                 

    The Department seeks judgment on this claim for several reasons. First, the Department 
contends that a reduced caseload isn’t a reasonable accommodation, citing Terrell v. USAir,
132 
F.3d 621, 625
(11th Cir. 1998), and Treanor v. MCI Telecommunications Corp.,
200 F.3d 570, 
574
(8th Cir. 2000), for the proposition that the Rehabilitation Act doesn’t require an 
employer to create a part-time position for a full-time employee. But that’s not what Barnes 
was asking for. Rather, she wanted her hours and caseload reduced temporarily while she 
recovered from her injury.                                                
    The Court of Appeals for the Seventh Circuit has recognized that providing a full-time 

employee with part-time work temporarily may be a reasonable accommodation, depending on 

1 If Barnes means to raise any other theory, she has forfeited it by failing to clearly articulate 
it.                                                                       
the circumstances.  See Pals v. Schepel Buick & GMC Truck, Inc.,
220 F.3d 495, 498
(7th Cir. 
2000) (rejecting view that a “request to return initially on a part-time basis disqualify[ies] [an 
employee] under the ADA,” and observing that “[e]mployees who have experienced serious 
medical problems often return to work part-time and increase their hours until they are working 

full time.”);2 see also McMannes v. Wisconsin Dep’t of Workforce Dev., No. 17-cv-758-jdp,
2019 
WL 95637
, at *5 (W.D. Wis. Jan. 3, 2019) (“A transition period can be a reasonable 
accommodation under certain circumstances, particularly when the employee is recovering 
from a recent injury or short-term medical condition.”). The Department doesn’t explain why 
it would be unreasonable to allow Barnes to work part-time for a few months, so the court 
rejects this argument.                                                    
    Second, the Department says that it wasn’t aware that Barnes wanted a reduced 
caseload. This is a stronger argument. It’s undisputed that Barnes never asked the Department 

for  a  reduced  caseload,  and  an  employer  doesn’t  have  an  obligation  to  provide  an 
accommodation that it doesn’t know that an employee needs. See Preddie v. Bartholomew Consol. 
Sch.  Corp.,
799  F.3d  806,  813
(7th  Cir.  2015)  (“A  plaintiff  typically  must  request  an 
accommodation  for  [her]  disability  to  claim  that  [s]he  was  improperly  denied  an 
accommodation under the ADA.”).                                           
    But the employer’s duty of reasonable accommodation includes the requirement to 
“engage in [a] flexible interactive process and to make [a] good faith effort to determine what 
accommodation is necessary.” McCray v. Wilkie,
966 F.3d 616, 622
(7th Cir. 2020). So when 


2 The Americans with Disabilities Act and the Rehabilitation Act impose the same requirements 
on employers, see CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
743 F.3d 524, 528
(7th Cir. 2014), 
so the court will rely on case law applying both laws.                    
the need for a particular accommodation is obvious, the plaintiff’s claim doesn’t fail simply 
because she failed to expressly request the accommodation. See Sullivan v. Spee-Dee Delivery 
Serv., Inc.,
138 F. Supp. 3d 1050, 1058
(W.D. Wis. 2015).                 
    In this case, the Department knew that Barnes needed some accommodation because it 

was allowing her to work reduced hours because of her injury. The jury was entitled to infer 
that it should have been obvious to the Department that Barnes needed a reduced caseload 
along with reduced hours. Otherwise, Barnes would be required to complete much of the same 
work, but in only a fraction of the time. That would make Barnes’s job harder and more 
stressful, not easier.                                                    
     Third, the Department contends that Barnes was working a reduced caseload. The 
Department points out that it measures an employee’s caseload using a point system, that a 
full caseload is approximately 200 points, and that Barnes’s caseload was less than 200 points 

from September to January 2016. But Barnes testified that she was working a full caseload 
during the time, and the jury was entitled to credit that testimony. The Department doesn’t 
cite any evidence that it directed or approved a reduced caseload for Barnes. In fact, Barnes 
testified that her supervisor, Mike Ekedahl, said, “I guess” when she asked him whether she 
was “expected to continue covering my caseload.” Dkt. 101, Trial Trans., at 40:9–12. And even 
under the Department’s version of events, Barnes was assigned a caseload of 150 points when 
she returned to work in September while she was supposed to be working only 12 hours a week. 
That is far from a commensurate reduction in the amount of work that Barnes was supposed 

to do. A reasonable jury could have found that the Department was on notice that the 
accommodation wasn’t reasonable.                                          
     Fourth, the Department says that it provided other reasonable accommodations, such 
as removing some of Barnes’s responsibilities that required more walking. The Department is 
correct that an employee isn’t entitled to the accommodation of her choice, Bunn v. Khoury 
Enterprises, Inc.,
753 F.3d 676, 682-83
(7th Cir. 2014), but the accommodation provided must 

enable the employee to perform her job, see Severson v. Heartland Woodcraft, Inc.,
872 F.3d 476, 
481
(7th Cir. 2017). The Department identifies no basis for believing that the limited 
accommodations it provided were sufficient under that standard, based on the size of Barnes’s 
workload.                                                                 
    Fifth, the Department says that Barnes would not have been able to perform the 
essential  functions  of  her  job,  even  if  the  Department  had  reduced  Barnes’s  caseload. 
Specifically, the Department says that Barnes acknowledges that she was unable to perform 
tasks such as conducting home visits and taking offenders into custody. Again, these were 

temporary restrictions, so Barnes’s inability to perform those tasks doesn’t foreclose her claim. 
As discussed above, the Department  did provide these accommodations, and it cites no 
evidence that the “costs of the accommodation[s] [were] clearly disproportionate to the 
benefits [they] produce[d],” which is the standard for reasonableness in the jury instructions. 
Dkt. 83, at 6.                                                            
    Sixth, the Department says that providing a reduced caseload would have imposed an 
“undue hardship” on the Department, so the Department can’t be held liable for failing to 
provide the accommodation. But undue hardship is an affirmative defense that the Department 

must prove. Majors v. General Electric Co.,
714 F.3d 527, 535
(7th Cir. 2013). Because the 
Department didn’t raise the defense at trial, see Dkt. 63, at 2, it forfeited the defense. See 
Bradford-White Corp. v. Ernst & Whinney,
872 F.2d 1153, 1161
(3d Cir. 1989) (“[I]t would be 
grossly unfair to allow a plaintiff to go to the expense of trying a case only to be met by a new 
defense  after  trial.”).  In  any  event,  the  Department  doesn’t  cite  any  evidence  that  the 
accommodation would impose an undue hardship, so the defense fails on the merits as well. 
      b.  Involuntary placement on medical leave                         

    On January 21, 2016, the Department placed Barnes on medical leave, even though she 
didn’t  request  to  be  placed  on  leave.  A  human  resources  supervisor  gave  the  following 
explanation for that decision at trial:                                   
         Verla Barnes was placed on [medical leave] because she had been 
         on light duty for a number of months, she had had an incident   
         occur near our State Office Building that put her at risk, she had 
         mentioned hurting her back, and she was still of a condition where 
         she was unable to do certain aspects of her position.           
Dkt. 100, Trial Trans., at 42:7–12. The Department refers to Barnes’s placement on leave as 
an accommodation, but Barnes rejects that characterization because it required her to use paid 
leave that she otherwise would have retained.                             
    Using an employee’s medical leave to allow the employee to recover can be a reasonable 
accommodation under some circumstances. See Swanson v. Vill. of Flossmoor,
794 F.3d 820
, 827–
28 (7th Cir. 2015); Murray v. AT&T Mobility LLC,
374 F. App’x 667, 671
(7th Cir. 2010). But 
the jury was entitled to find in this case that the accommodation was not a reasonable one. 
The Department did not consult with Barnes or her doctor before placing her on leave. And 
the only specific reason the Department gives for the decision was that Barnes said she hurt 
her back at the courthouse. But Barnes denies that the new injury affected her ability to do her 
job, and the Department cites no evidence to the contrary.                
    The Department also says that it placed Barnes on leave because she had been on light 
duty “for a number of months,” but that is an observation, not a reason. The Department 
doesn’t cite a policy it had for limiting the amount of time it could allow Barnes to work part-
time, and it doesn’t contend that it was getting too difficult to provide accommodations for 
her. So the court declines to overturn the jury’s liability verdict on Barnes’s accommodation 
claim.                                                                    

    3.  Retaliation claim                                                
    The Rehabilitation Act prohibits employers from discriminating against an employee 
for “oppos[ing] any act or practice made unlawful by” the Act “or because such individual made 
a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or 
hearing under” the Act.
42 U.S.C. § 12203
;
29 U.S.C. § 794
(d) (incorporating § 12203). A 
retaliation claim has three elements: (1) the plaintiff engaged in a statutorily protected activity; 
(2) she suffered an adverse employment action; and (3) there is a causal connection between 
the two. Guzman v. Brown Cty.,
884 F.3d 633, 642
(7th Cir. 2018). The Department challenges 

Barnes’s ability to satisfy the first and third elements.                 
      a.  Protected conduct                                              
    At trial, Barnes proposed only one example of a protected activity to be included in the 
jury instructions, which was an administrative grievance that she filed with the Wisconsin 
Equal Rights Division (ERD) on February 18, 2016. See Dkt. 83, at 8; Trial Exh. 12. In her 
opposition to the Department’s motion for judgment as a matter of law, Barnes also contends 
that she was engaging in protected conduct when she told the human resources coordinator 
that “she didn’t understand why she was being put out on leave, asked to provide a fitness for 

duty form, that DOC’s messing with her and that she’s going to hire an attorney and sue us.” 
Trial Exh. 50. The jury instructions didn’t direct the jury to consider whether the Department 
retaliated against Barnes for those statements, Dkt. 83, so Barnes cannot rely on them now. 
See Petkus v. Richland Cnty., Wis.,
767 F.3d 647
, 653 54 (7th Cir. 2014) (party forfeits challenge 
to jury instructions that she didn’t object to at trial).                 
    As for the ERD complaint, it is titled “Family and Medical Leave Complaint,” and it 
states that Barnes is “alleging a violation of the Wisconsin Family Medical Leave Act.” Trial 

Exh. 12. In the section of the complaint explaining why she “believe[d] [her] rights under the 
Family and Medical Leave Act were violated,” Barnes wrote the following:  
         I am currently on Workers Compensation . . . I was forced by    
         [my]  employer  to  take  FMLA  leave  after  filing  a  complaint 
         incident report on January 15, 2016. I received a call . . . from 
         [the] regional chief stating I am effectively on FMLA due to no 
         improvement of my condition. I was forced to use my paid time   
         off while on FMLA.
Id.
The Department contends that the ERD complaint isn’t protected activity under the 
Rehabilitation Act because Barnes was using the complaint to assert her rights under the 
FMLA, not the Rehabilitation Act. In response, Barnes says that the Department “waived” this 
issue because it stipulated before trial that “Plaintiff shall be allowed to advance an argument 
and put on evidence that placing Plaintiff on FMLA was disability discrimination under the 
Rehabilitation Act.” Dkt. 66. But the Department’s contention isn’t inconsistent with the 
stipulation. Barnes did contend at trial that her placement on medical leave represented a 
failure to provide a reasonable accommodation, and the court has upheld that portion of the 
jury’s verdict, as discussed above. But the stipulation says nothing about whether the ERD 
complaint qualifies as protected conduct under the Rehabilitation Act, so the Department 
didn’t waive this issue.                                                  
    Barnes offers almost no substantive argument in support of a conclusion that her ERD 
complaint is protected under the Rehabilitation Act. She says only that her ERD complaint 
“can also be viewed as asserting her rights under the Rehabilitation Act, as Barnes had been 
placed on FMLA against her will because of her disability.” Dkt. 119.     
    Neither side cites any case law considering what qualifies as protected activity for the 
purpose of a retaliation claim under the Rehabilitation Act. But case law applying Title VII’s 

retaliation provision, which is similarly worded to the provision at issue in this case, provides 
guidance. For example, when discussing a complaint about sex discrimination, the court of 
appeals  stated:  “Although  an  employee  need  not  use  the  magic  words  ‘sex’  or  ‘gender 
discrimination’ to bring her speech within Title VII’s retaliation protections, she has to at least 
say something to indicate her gender is an issue.” Sitar v. Indiana Dep’t of Transp.,
344 F.3d 
720, 727
(7th Cir. 2003) (internal quotation marks and alterations omitted). More generally, 
the question is whether the plaintiff “has produced evidence from which it could be reasonably 
inferred that [the employer] more likely than not knew [the plaintiff] was concerned about 

[the prohibited] discrimination.” Abuelyaman v. Illinois State University,
667 F.3d 800
, 814 -815 
(7th Cir. 2011) (internal quotation marks omitted).                       
    In this case, Barnes’s ERD complaint doesn’t say anything about the Rehabilitation Act, 
disability discrimination, or a failure to accommodate a disability. Barnes said only that she 
believed it was unfair that she was being forced to take FMLA leave. That didn’t give the 
Department notice that Barnes was raising an issue about her disability, so the Department is 
entitled to judgment as a matter of law on this ground.                   
      b.  Evidence of causation                                          

    Even if Barnes’s administrative complaint were protected conduct, her retaliation claim 
would still fail as a matter of law because Barnes didn’t adduce evidence that the Department 
terminated her or took any other adverse action against her because of that complaint. Barnes 
relies primarily on the temporal proximity between when she first threatened to get a lawyer 
(January 22, 2016) and when the Department first began investigating what happened at the 
courthouse (in “early February 2016,” Dkt. 99, Trial Trans., at 47:6–7). But this argument fails 
for multiple reasons.                                                     

    As an initial matter, as discussed above, the only potential protected conduct at issue 
in this case was Barnes’s administrative complaint, which Barnes filed after the Department 
began its investigation, so the complaint could not have been a motivating factor in the 
decision. Kotaska v. Fed. Express Corp.,
966 F.3d 624, 633
(7th Cir. 2020) Also, temporal 
proximity is rarely enough to support a retaliation claim. Milligan-Grimstad v. Stanley,
877 F.3d 
705, 711
(7th Cir. 2017).  And this is not one of the rare cases that it is.  
    The Department explained that its decision to investigate the courthouse incident 
didn’t start as an investigation of Barnes. Rather, it was an investigation of the individuals who 

assaulted Barnes and used a racial slur against her. Troy Enger (an assistant chief for the 
Wisconsin Department of Community Corrections) testified that he was “pretty upset that we 
had had a staff member who was assaulted, and so we were really looking to see who the 
individuals were, who they are, if we could identify them, and if ultimately we could refer that 
to  law  enforcement.” Dkt. 99,  Trial  Trans.,  at 47:22–25.  Barnes doesn’t  challenge  that 
testimony. In any event, the Department would have had no way of knowing when it started 
the investigation what the videos would show, so it simply isn’t logical to contend that the 
Department  initiated  the  investigation  with  the  hope  that  it  would  find  incriminating 

information that it could use against Barnes. When “there are reasonable, non-suspicious 
explanations for the timing” of the defendant’s conduct, closeness in time isn’t enough to 
support a retaliation claim. See Terry v. Gary Cmty. Sch. Corp.,
910 F.3d 1000, 1008
(7th Cir. 
2018).                                                                    
    The other evidence Barnes relies on isn’t helpful either. First, Barnes points out that the 
video capturing the courthouse incident had significant blind spots, so it’s possible that the 

incident occurred as Barnes reported, even if the video showed no evidence of that. But this 
argument is based on a fundamental misunderstanding of what Barnes was required to prove 
at trial.                                                                 
    The purpose of the trial wasn’t to relitigate the question whether Barnes had lied when 
she reported that she had been harassed at the courthouse. Rather, the question was whether 
the Department’s asserted justification for firing Barnes was only a pretext for retaliating 
against Barnes because she filed a complaint with the ERD. So it wasn’t enough for Barnes to 
prove that the Department made a mistake in finding that she lied; she had to prove that the 

Department was lying about its true reason for terminating her. See Simpson v. Beaver Dam Cmty. 
Hospitals, Inc.,
780 F.3d 784, 797
(7th Cir. 2015). Barnes cites no evidence to support such a 
finding. Although reasonable minds could differ on how compelling the video footage was, 
there is no dispute that the Department found no evidence corroborating Barnes’s account, 
and Barnes has offered none. Under these circumstances, the presence of blind spots in the 
video  footage  isn’t  a  basis  for  inferring  retaliatory  intent.  It  is  only  evidence  that  the 
Department might have made a mistake.                                     
    Second, Barnes says that the Department failed to preserve all of the video footage it 

reviewed. Instead, it preserved only those portions that Barnes appeared in. But it isn’t clear 
what  point  Barnes  is  trying  to  make.  Barnes  doesn’t  contend  that  she  was  denied  the 
opportunity to request that any video footage be preserved, she doesn’t contend that the 
Department violated any rules about preserving evidence, and she didn’t ask for an adverse 
inference instruction at trial. Barnes also doesn’t explain what she believes the deleted footage 
would have shown to help her case. So the fact that some footage is missing doesn’t support 
her claim.                                                                

    Third,  Barnes  contends  that  Ekedahl  (Barnes’s  supervisor)  “pre-judge[d] . . . the 
courthouse incident,” Dkt. 119, at 22, because he wrote in an email that “this all feels weird 
to me” after he reviewed Barnes’s incident report. Trial Exh. 34. Barnes doesn’t contend that 
Ekedahl was involved in the decision to initiate an investigation or to terminate her, so 
Ekedahl’s statements have limited relevance. In any event, Ekedahl’s comment wasn’t directed 
at the content of Barnes’s incident report; he was saying that it was “weird” that Barnes “didn’t 
notify me right away” about the incident.
Id.
So the statement isn’t relevant to showing 
retaliatory intent either.                                                

    Fourth, Barnes cites a chronology prepared by a note taker for the investigator assigned 
to the courthouse incident. Trial Exh. 18. The entry for March 21, 2016 states: “Spoke to the 
investigator about interviewing the employee and asking questions about the bailiff and to 
bring ‘some heat’ to the employee. Investigator will schedule another f/u interview.”
Id.
The 
previous entry states that “the employee is sticking to her story” despite the video evidence.
Id.
Barnes contends that the statement to bring “some heat” is evidence that the entire 
investigation was a “sham.” Dkt. 119, at 22. But there are multiple problems with that 
contention: (1) Barnes never asked the author of the comment or anyone else with personal 

knowledge what the comment meant, so Barnes is simply speculating; (2) the comment has 
nothing to do with the decision to conduct an investigation, so it can’t be evidence of the 
legitimacy of that decision; (3) Barnes hasn’t cited any evidence that the investigator tainted 
the evidence or otherwise improperly influenced any of the decision makers in this case; 
(4) even if the comment is evidence that the investigator was acting aggressively, that on its 
own isn’t evidence of a motive to retaliate against Barnes for filing a complaint with the ERD. 
    Fifth, and finally, Barnes cites testimony of two coworkers, Leah Hartman and Kay 

Valdes. Hartman said that an unidentified union representative informed her that employees 
who were injured risked being terminated, which confirmed a “general feeling” in the office. 
Dkt. 101, Trial Trans., at 81:18–25. Valdes said that the investigation against Barnes was 
“different”  from  other  investigations  she  had  seen  and  that  it  was  “strange”  that  the 
Department would investigate such a good employee like Barnes. Dkt. 61, Video Dep., at 
16:18–17:7.                                                               
    Neither  employee’s  testimony  is  evidence  of  retaliation.  Hartman’s  testimony  is 
untethered to the facts of this case. She provided no examples of the Department retaliating 

against employees for seeking accommodations. A “feeling” isn’t evidence. Similarly, Valdes 
provided no specifics about how Barnes was treated differently from any other employee. It is 
undisputed that the Department has a policy of terminating an employee for lying and that it 
has consistently applied that policy.                                     
    “Overturning a jury verdict is not something that a court should do lightly.” Walker v. 
Bd. of Regents of Univ. of Wisconsin Sys.,
410 F.3d 387, 396
(7th Cir. 2005). And Barnes may be 
correct that the Department reached the wrong conclusion when it found that she lied on her 
incident report. But mistakes aren’t discrimination, and the Rehabilitation Act doesn’t prohibit 

employees from making bad decisions. Barnes has adduced no evidence of a retaliatory motive, 
so the Department is entitled to judgment as a matter of law on the retaliation claim. 
B.  Motion for a new trial                                                
    The Department seeks a new trial under Federal Rule of Civil Procedure 59 on two 
grounds: (1) it was unfairly prejudiced by the court’s decision to try liability and damages 
together; and (2) the damages award is excessive.                         

    The court rejects the Department’s first contention. The default rule under the Federal 
Rules of Civil Procedure is that issues of liability and damages are tried together. But “[u]nder 
Federal Rule of Civil Procedure 42(b), a district judge may separate claims or issues for trial if 
the separation would prevent prejudice to a party or promote judicial economy.” Chlopek v. Fed. 
Ins. Co.,
499 F.3d 692, 700
(7th Cir. 2007). The decision whether to bifurcate is discretionary, 
Volkman v. Ryker,
736 F.3d 1084
, 1088–89 (7th Cir. 2013), but it’s not clear whether Rule 
42(b) requires bifurcation in some cases. Cases such as Chlopek and Volkman involved challenges 
to a decision to bifurcate, not a denial of such a request. The Department doesn’t cite any cases 

in which a court found that a party had a right to bifurcation.           
    Even  if  the  court  assumes  that  bifurcation  may  be  required  in  some  cases,  the 
Department hasn’t shown that this is such a case. The Department says that bifurcation was 
necessary to avoid prejudice because Barnes offered “excellent evidence” about how the 
Department’s decision harmed her, evidence that the jury wouldn’t have heard during the 
liability phase if the trial had been bifurcated. Dkt. 117, at 25. But that’s not enough to show 
unfair prejudice. If it were, it would require the court to bifurcate any case involving a plaintiff 
with  substantial  damages.  The  Department  cites  no  authority  for  such  a  far-reaching 

conclusion.                                                               
    The Department also says that it was prejudiced because it didn’t know until the final 
pretrial conference that the trial wasn’t going to be bifurcated, and it didn’t have enough time 
to prepare its case for a unified trial. This argument fails because the Department doesn’t 
explain what it would have done differently if the trial had been bifurcated. 
    As for the Department’s contention that the damages award was excessive, the court’s 
order granting the Department’s motion for judgment as a matter of law on Barnes’s retaliation 

claim significantly changes the analysis for assessing the validity of the damages award. So the 
court will deny the Department’s motion for a new trial on damages without prejudice, as well 
as Barnes’s motions for fees and costs. But both sides may renew their motions, taking into 
account the court’s rulings in this opinion.                              

                            ORDER                                        
    IT IS ORDERED that:                                                  
    1.  The Wisconsin Department of Corrections’ motion for judgment as a matter of law, 
      Dkt. 114, is DENIED as to Verla Barnes’s reasonable accommodation claim. The 
      motion is GRANTED as to Barnes’s retaliation claim.                
    2.  The clerk of court is directed to enter an amended judgment that reflects the 
      dismissal of the retaliation claim and that reduces the amount by $50,000, which is 
      the amount awarded on that claim.                                  
    3.  The Department’s motion for a new trial based on the court’s decision to try liability 
      and damages together, Dkt. 114, is DENIED.                         
    4.  The Department’s motion for a new trial on damages, Dkt. 114, is DENIED without 
      prejudice.                                                         
5.  Barnes’s motions for fees and costs, Dkt. 105 and Dkt. 106, are DENIED without 
 prejudice.                                                         
6.  The parties may renew the motions denied without prejudice within the deadlines 
 set by the Federal Rules of Civil Procedure.                       
Entered September 22, 2020.                                          
                        BY THE COURT:                               

                        /s/                                         
                        ________________________________________    
                        JAMES D. PETERSON                           
                        District Judge