Opinion
CAUSE NO. IP 01-0575-C H/F
August 6, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Thomas E. Carter, Jr., is a retired civilian employee of the United States Army. For the past 27 years, he has also been totally blind. Carter sued the Army for alleged violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which applies to the federal government the employment discrimination standards of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
Carter alleges that the Army discriminated against him because of his blindness, failed to make reasonable accommodations for his disability, and retaliated against him for seeking accommodation. The Army moved to dismiss the claims for lack of subject matter jurisdiction and for summary judgment on all claims. As explained below, the motion to dismiss for lack of subject matter jurisdiction is granted in part and denied in part and the motion for summary judgment is denied. The case will go forward to trial on Carter's claims of disability discrimination and retaliation pursuant to 29 U.S.C. § 791.
Standard for Summary Judgment
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Id.; Baucher v. Eastern Ind. Prod. Credit Ass'n, 906 F.2d 332, 334 (7th Cir. 1990).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to such cases. See, e.g., Alexander v. Wisconsin Dep't of Health Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Undisputed Material Facts
For the purposes of this motion for summary judgment, the Army does not dispute the facts set forth in Carter's brief, see Def. Reply Br. at 1 n. 1, and the Army has submitted some undisputed facts as well. Viewing the evidence in the light reasonably most favorable to Carter as the non-moving party, this case presents an almost surreal picture that invokes the worst caricatures of the government: an employee with a disability (blindness) won an order from the Army's EEO office back in 1993 requiring accommodation of his disability. The Army responded by providing him with computer equipment that would read aloud for him, but the Army refused for years to assign him any actual duties. For years, Carter went to work every day and used the equipment to read hundreds of books — including the Bible, Dante's Divine Comedy, and many other books for pleasure. Carter eventually reached mandatory retirement age and left the Army. His claims of discrimination and retaliation live on, however.
In August 1966, Carter began working as a civilian employee concurrently while serving in the Army Reserve at Fort Benjamin Harrison in Indiana. In 1973, following a physical examination, Carter was diagnosed with failing eyesight due to glaucoma. In response to this medical diagnosis, the Army's medical officer determined that Carter was no longer fit for retention in the Army Reserve. EEO Hr. Tr. at 21. In 1975, Carter completely lost his eyesight.
In 1980, the Army employed Carter as a Special Staff Specialist with the 123rd Army Reserve Command. Carter's employment duties consisted of coordinating work for special staff heads, including the base Chaplain, Surgeon, Staff Judge Advocate, and the Inspector General. For Carter's work as Special Staff Specialist, the Army did not provide support personnel or a mechanical reader to accommodate his blindness. In 1988, Carter requested a reader to accommodate his blindness. The Army denied Carter's requested accommodation and informed him that he could hire his own reader. Carter did so at his own expense to assist him with certain functions of his job.
On April 24, 1990, Carter filed with the Army's EEO office a charge alleging discrimination. After a hearing, an administrative judge concluded that the Army had discriminated against Carter on the basis of his disability by failing to provide reasonable accommodation for his disability in his position as a GS-10 Staff Specialist. On October 27, 1993, the EEO ordered the Army to provide Carter with a human reader or a mechanical reader to accommodate his disability. Carter Dep., Ex. 13. On September 9, 1994, the Army's EEO Department reaffirmed its October 27, 1993 decision.
On September 16, 1995, Carter enrolled in training to learn how to use computers and mechanical reading equipment. On November 17, 1995, Carter successfully completed his training. Afterwards, the Army issued Carter a mechanical reader to assist him in performing his duties.
Upon his return to the 123rd Army Reserve Command in December 1995, the Army assigned Carter to the Inspector General's Office as an Assistant Inspector, GS-10. The Army also issued him a 300-page manual on which he would be tested, supposedly to facilitate his training and competence in various employment positions. But the Army did not give Carter a formal job description or any job assignments other than preparing for the examination — "my day-to-day duty at that time was to study for this test. It was to read." EEO Hr. Tr. at 40.
Normally, GS-10 level employees are assigned subordinates such as clerks, typists, secretaries, and receptionists to assist them in performing their employment duties. As a GS-10 in the Inspector General's Office, Carter was not assigned such subordinate employees — because he had no substantive duties.
In April 1996, Carter successfully passed the examination on the manual. After he passed the examination, the Army did not allow Carter to continue taking tests to enhance his employment qualifications, nor did the Army provide him with any employment duties or responsibilities:
Q What did you do from ' 96 until you were terminated, for four years?
A I had no job. I had no job description. I had a job title but no job description. I attended meetings in the section. I attended weekly staff meetings. And I was here every day where possible and I read.
Judge Dibble: You what?
A I had cassette tapes and a tape recorder player and I read books. I read 150,200 books.
Judge Dibble: You mean books for pleasure or books for —
A Books for pleasure, Paradise Lost, Divine Comedy, the Bible, both New Testament and Old Testament, Rise and Fall of the Third Reich.
Judge Dibble: Okay, I understand.
A And I attended the weekly meetings of the staff.
EEO Hr. Tr. at 41-42. (Perhaps Carter was reminded of his own situation as he read Dante's Purgatorio.)
The Army evaluates employee performance on an annual basis. An employee is evaluated on specific standards that are established by the respective job description. Performance appraisals rate the quality, competence, and efficiency of an employee's performance in his employment duties and responsibilities. The employment duties and responsibilities that an employee is required to perform are determined by his employment classification.
After 1990, however, the Army failed to give Carter any performance appraisals. Carter's last performance evaluation given was for the period of August 23, 1989 to August 22, 1990. The evaluation stated:
The employee is blind and during the rating period neither a reader nor computer aided reading device was made available to him. The lack of support has made it difficult, if not impossible, to perform many of the duties he has been assigned. For this reason, several of the job elements have not been rated. The limitations this handicap have placed [on] his ability to properly perform his duties have been significant. During a Desk Audit conducted during the current rating period, the actual job performed by Mr. Carter was rated at a GS-3 level.
Carter Dep., Ex. 20; see also Eagleson Stmt. at 3.
The Army's failure to issue Carter any performance appraisals between 1990 and 2000 precluded Carter from receiving any bonus awards because those awards are based on an employee's performance evaluation. As Carter stated:
"I was not placed — I was not given an award. . . . — I would go to meetings and other personnel were getting awards, monetary awards. I got one in 1987, and that was it." EEO Hr. Tr. at 55.
From 1990 through 2000, Carter was unable to apply for promotions because he "did not know what was available." EEO Hr. Tr. at 43. No one told Carter about promotion opportunities or other jobs that were available. Carter testified that he asked about promotions and alternative employment positions.
In response, he was informed that he needed additional training. However, Carter never received any additional training. Thus, Carter remained in his isolated positions without substantive duties and without prospects for promotion, or even a little real responsibility.
In March 1996, pursuant to the Army's decision to restructure and reorganize its subordinate reserve command headquarters, the Army conducted a "mock" reduction-in-force (RIF) to determine which positions should be offered to excess employees of the 123rd Army Reserve Command. A mock RIF is not the actual RIF, but it is conducted to determine if an actual RIF is required. If the Army can place excess employees in other positions during the mock RIF, the actual RIF may be avoided or at least reduced in scope. The Army implemented the mock RIF to notify employees whose employment positions were being eliminated of their respective employment retention standings. In other words, the mock RIF notified excess employees of their future prospects with the Army in the event of an actual RIF. An excess employee's retention standing for purposes of the mock RIF was based on several factors including tenure, veteran preference, service computation date, service time, performance appraisals, and qualifications.
As part of the mock RIF, on March 15, 1996, the Army issued Carter a notice that his employment position was being eliminated and apprised him of his retention standing. Essentially, the letter "was an offer to give him an opportunity for placement prior to us getting into an actual formal RIF action." EEO Hr. Tr. at 87. Pursuant to the Army's March 15, 1996 notification, Carter's retention standing qualified him for a position only as a GS-7 Unit Administrator, requiring a three-grade demotion.
Carter met with Dawn Pastick, the Army's personnel management specialist, concerning the March 15, 1996 mock RIF notice. During the meeting, Pastick informed Carter that his lack of performance appraisals after 1990 affected his retention standing. Since Carter's file did not have performance appraisals, personnel assumed that Carter received a "fully successful" performance rating for each of the missing ratings. If Carter had received performance appraisals with higher ratings (such as "outstanding" or "exceeds fully successful"), his retention standing would have been higher. Pastick was responsible for the decision to offer Carter the GS-7 Unit Administrator position during the mock RIF. Pastick explained to Carter that he had been offered a GS-7 position during the mock RIF because she "didn't find the qualifying experience recorded in his personnel folder." EEO Hr. Tr. at 97. When Carter requested either a lateral GS-10 transfer or promotion to a GS-11 position, Pastick informed him, "No, you're not qualified for anything." EEO Hr. Tr. at 47.
After the meeting, Carter declined the Army's offer of the GS-7 position. On May 20, 1996, Carter filed a charge of discrimination with the Army's EEO department. Specifically, Carter complained that the Army discriminated against him because of his disability and "failed to accommodate visual impairment handicap since 1988 or before, failed to rate annual performance, [and] assignment offered in RIF was based on employer's former discrimination and is a new act of discrimination and reprisal." Carter Dep., Ex. 8.
In July 1996, the U.S. Army Reserve Command issued a memorandum that waived employment position qualifications for the actual RIF. With irrelevant exceptions, an employee subject to the actual RIF would be allowed to assume an employment position for which he was not qualified. When the Army implemented the actual RIF, Carter was assigned the personnel section in the 88th Regional Support Group as a Military Personnel Management Specialist, GS-9, effective October 13, 1996. Until his retirement, however, his salary and benefits were never reduced from the GS-10 level. Carter Dep. at 70-74.
There were a total of five available employment positions within the employment classification that encompassed the Military Personnel Management Specialist position Carter was assigned during the actual RIF. No GS-10 positions were offered during the RIF. Specifically, the positions available were the following: (1) one GS-12 position; (2) three GS-11 positions; and (3) one GS-9 position. After the excess employees were reassigned following the actual RIF, the GS-12 position and one GS-11 position remained vacant.
Following Carter's reassignment to the 88th Regional Support Group, the Army still did not assign Carter any employment duties and responsibilities. Carter came to work every day, but spent most of his time reading with the mechanical device he was given. Carter was required to report to work, to remain in his office, and to do nothing useful for the Army. But he could read books. Carter remained in this strange situation until his mandatory retirement on April 3, 2000. Carter testified that he felt worthless and isolated. Other relevant facts are noted below, keeping in mind the standard that applies on a summary judgment motion.
Discussion I. Subject Matter Jurisdiction
The Army has moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), in essence on the theory that Carter's citation of the wrong statutory section in his complaint bars jurisdiction. The United States has not waived immunity from suit under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which is cited in the complaint, but it has waived immunity under section 501, 29 U.S.C. § 791. The court denies the motion to dismiss and treats Carter's claims as having been brought under section 501 of the Rehabilitation Act.
It is difficult to understand what the Army expected to accomplish with this motion. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in federal employment against an "otherwise qualified individual with a disability." 29 U.S.C. § 794(a). Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, contains various provisions for encouraging the federal government to employ the disabled. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995). Congress has expressly established private rights of action under both sections. 29 U.S.C. § 794a(a); McWright v. Alexander, 982 F.2d 222, 225 (7th Cir. 1992). Even if section 504 does not waive the sovereign immunity of the United States, it is undisputed that section 501 does. Def. Reply Br. at 13. The Seventh Circuit has recognized: "The duty placed on federal agencies by § 501 is at least as stringent as that imposed by § 504." McWright, 982 F.2d at 226.
Under the federal courts' liberal pleading rules, the plaintiff must provide only a short and plain statement of a legal claim in the complaint. See Fed.R.Civ.P. 8. Further, a "complaint need not plead facts, however, it also need not plead law, and it is not tied to one legal theory." La Porte County Republican Central Comm. v. Board of Comm'rs of County of La Porte, 43 F.3d 1126, 1129 (7th Cir. 1994). The purpose of the pleading is to provide notice to the defendant of the alleged claims. International Marketing, Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724, 733 (7th Cir. 1999). In this case Carter specifically alleged that the Army discriminated against him because of his disability, failed to accommodate his disability, and retaliated against him for filing EEO charges. Thus, the Army had adequate notice of the claims, and the court will treat these claims as having been brought under section 501 of the Rehabilitation Act. See McWright, 982 F.2d at 225-26 ("The complaint does not distinguish between § 501 and § 504, and we may treat both of McWright's claims as having been brought under § 501.
In addition to requiring accommodation of individuals with [disabilities], § 501 — by regulation and interpretation — prohibits discrimination on the basis of [disabilities], just like § 504."). Even though the wrong section of the Rehabilitation Act was cited in the complaint, the court has subject matter jurisdiction over counts one, three, and four of Carter's complaint.
The ADA specifically excludes the United States and its agencies from the definition of an employer. See 42 U.S.C. § 12111(5)(B). The Rehabilitation Act prohibits the federal government and its agencies from discriminating against a qualified individual with a disability solely because of that disability. Since this action is governed by the Rehabilitation Act, not the ADA, counts two and five of the complaint must be dismissed.
II. EEO Charge
The Army also argues that the court cannot consider Carter's claims because the claims set forth in the complaint are beyond the scope of his EEO charge. A federal employee must exhaust his administrative remedies before he can file suit against the United States. McGuinness v. United States Postal Service, 744 F.2d 1318, 1320-21 (7th Cir. 1984). Exhaustion is required to give the employer notice of the alleged violation and to give the EEO office an opportunity for conciliation. In order "to prevent circumvention of the EEOC's investigatory and conciliatory role, only those claims that are fairly encompassed within an EEOC charge can be the subject of a resulting lawsuit." Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).
Regarding this issue, both parties have cited cases dealing with charges filed with the Equal Employment Opportunity Commission and participating state agencies. The parties have assumed, as the court has, that the same standards apply to a federal employee's charge filed with the employing agency's EEO office.
Carter filed his formal EEO charge on May 20, 1996. The charge stated:
The employer failed to accommodate visual impairment handicap since 1988 or before, failed to rate annual performance, assignment offered in RIF was based on employer's former discrimination and is a new act of discrimination and reprisal.
Carter Dep., Ex. 8. On June 12, 1996, in response to the EEO's "request for specificity" Carter filed an addendum to the charge. The addendum contained a summary which stated: "Carter claims discrimination built on discrimination. Failure to accommodate his handicap for years prevented Carter from securing fair performance evaluations." The summary further provided that Carter's "performance evaluations suffer and he is offered a lesser Grade position because of Agency animus arising from his having engaged in past protected EEO activity."
The Army's EEO officer later sent a letter to Carter's attorney. The letter attempted to restate the issues presented by Carter's charge:
Specifically, was your client discriminated against based on handicap (Physical, visual impairment, blindness), Age (67, date of birth 12/15/28) and Reprisal when:
(1) due to the fact that the 123d ARCOM is being inactivated and some functions are being assigned to the 88th Regional Support Group (RSG) that on March 15, 1996 he was offered a position as GS-303-7 Unit Administrator?
(2) he received a letter on March 22, 1996 requiring him to voluntarily accept or reject said position as a preliminary action, prior to approval for a reduction in force (RIF)?
(3) he did not receive performance appraisals (since rating period 23 August 1989 to 22 August 1990 to present) which negatively impacted his RIF retention standing and resulted in the offering of a lower graded position?
(4) in preparation for the proposed RIF and subsequent job offer (see #(1)) on March 15, 1996, he was questioned about his retirement date?
Based on my review and conditioned upon a final decision by the Secretary of the Army, or his or her designee, I have accepted the preceding issues, stated above, for investigation.
If you believe the issues in your client's complaint have not been correctly identified, please notify me, in writing, within five calendar days after you receive this letter, and specify why you and your client believe the issues have not been correctly identified. If you fail to contact me, I will conclude you both agree that the issues have been properly identified above.
Carter Dep., Ex. 9. Carter did not object to this restatement.
Based on that failure to object, the Army argues that the administrative process was limited to those four issues as stated in the EEO letter, so that earlier and later failures to accommodate are not within those four issues, meaning that Carter's failure to accommodate claim should be dismissed. The Army further argues that Carter's discrimination and retaliation claims are limited to the mock RIF.
Carter dropped any allegations of age discrimination when he filed his complaint in this case.
The court disagrees. The EEO charge itself determines which issues can be raised in a subsequent lawsuit — not the issues as the agency's EEO officer chooses to re-characterize them. The standard for determining whether an EEOC charge sufficiently encompasses the allegations of a subsequent complaint is a liberal one. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985). The court must construe an EEOC charge to determine if the allegations in the lawsuit are "like or reasonably related to the allegations of the charge and growing out of such allegations." Babrocky, 773 F.2d at 864, quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). Accord, Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir. 2000); Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). When a court examines the scope of an EEOC charge to determine whether the charge was adequate to support all the allegations advanced in the complaint, the court must look at the facts alleged in the charge and at the breadth of the EEOC investigation. Babrocky, 773 F.2d at 863.
In this case, all the allegations in Carter's complaint are reasonably related to and grew out of the allegations in his EEO charge. The EEO charge focused on various forms of disability discrimination. The facts listed in the addendum to the EEO charge include some of the facts Carter relies upon for proof of his claims. In other words, there is a reasonable relationship between the allegations in the charge and the claims made in the complaint. Furthermore, the claims could reasonably be expected to grow out of the EEO investigation of the allegations in the charge. In fact, in this case, unlike most private cases involving EEOC charges, the court has in the record the Army EEO hearing transcript and the administrative judge's decision. There is no need to speculate or predict what might reasonably be expected to develop from an investigation. Carter's claims in this lawsuit did in fact grow out of the EEO investigation of the charge. After the investigation and hearing, Administrative Judge Christine E. Dibble concluded that the Army "discriminated against [Carter] based on his disability and failed to accommodate his disability when he did not receive performance appraisals for rating periods August 23rd, 1989 through August 22d 1996." Administrative Judge's Decision at ¶ 28. Judge Dibble also considered Carter's claim of retaliation. Administrative Judge's Decision at 5-6, 18-20, 25-28. Thus, Carter exhausted his administrative remedies and his claims are properly before the court.
III. The Merits of Carter's Rehabilitation Act Claims
The Rehabilitation Act of 1973 prohibits discrimination in federal employment against an individual with a disability. 29 U.S.C. § 791. The Army agrees that Carter has a disability within the meaning of the Rehabilitation Act, which incorporates the employment standards of the ADA. 29 U.S.C. § 791(g). The Seventh Circuit has described the two statutes as "nearly identical." Silk v. City of Chicago, 194 F.3d 788, 798 n. 6 (7th Cir. 1999); Washington v. Indiana High School Athletic Assoc., Inc., 181 F.3d 840, 845 n. 6 (7th Cir. 1999).
An employer discriminates when an employee is intentionally treated adversely because of a disability. 42 U.S.C. § 12112(b). Discrimination includes: "limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee." 42 U.S.C. § 12112(b)(1). An employer also violates the ADA by failing to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . ., unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A).
A. Reasonable Accommodation Claim
In enacting the ADA, Congress found that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." 42 U.S.C. § 12101(a)(8). Congress also found that "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity." 42 U.S.C. § 12101(a)(9). In pursuit of these goals, the ADA requires employers to provide reasonable accommodations.
To establish a reasonable accommodation claim, Carter must first show: (1) he is disabled; (2) his employer was aware of his disability; and (3) he was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of his position. Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). At least for the purposes of summary judgment, the Army does not dispute these issues. The employee must then show that the employer failed to provide a reasonable accommodation that the employee needed to perform the essential functions of his position.
Carter filed a failure to accommodate claim against the Army in an EEO complaint on April 12, 1990. After the investigation, the EEO ordered the Army to provide Carter with a human reader or a mechanical reader to accommodate his blindness. After completing training on how to use a mechanical reader, Carter was issued a scanner that helped him to read. Carter, during his employment as an Inspector Assistant (GS-10), used the scanner to prepare for an examination to enhance his employment qualifications. After passing the examination, the Army refused to allow Carter to take more tests and failed to give him responsibilities and duties.
The scanner alone probably would not have enabled Carter to perform all the functions of his job as Assistant Inspector GS-10 because the scanner could not read signatures or longhand. EEO Hr. Tr. at 37. Perhaps some other form of accommodation also would have been required on occasion. However, since the Army failed to assign Carter any meaningful duties and responsibilities, the court does not need to examine this issue closely at this point.
After the actual RIF, Carter was employed with the 88th Regional Support Group as a Military Personnel Management Specialist. Instead of accommodating Carter so he could work in this capacity, the Army responded to the situation by failing to assign him any job responsibilities. That response was contrary to Congress's intent. The ADA was enacted to help individuals with disabilities to work and become productive members of society — not to be isolated or segregated in a real closet, or in the metaphorical equivalent of a closet, such as a position without any responsibilities or duties.
The Army does not seriously argue that it accommodated Carter by paying him for doing nothing useful. See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995) ("To 'accommodate' a disability is to make some change that will enable the disabled person to work."). Summary judgment is denied on this claim.
B. Disparate Treatment Claim
Carter also alleges a traditional disparate treatment claim — that he was intentionally treated differently because of his disability. To survive a motion for summary judgment, the plaintiff does not need to produce the "equivalent of an admission of guilt by the defendant." Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). However, Carter must present evidence from which a rational trier of fact could reasonably infer the intent to discriminate because of his disability. Id. Carter can establish a discriminatory intent through circumstantial evidence such as "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Id. at 736. The plaintiff can present pieces of evidence which are not conclusive by themselves, but "taken together compose a convincing mosaic of discrimination." Council 31 v. Doherty, 169 F.3d 1068, 1072-73 (7th Cir. 1999), following Troupe, 20 F.3d at 737.
Viewing the facts in the light reasonably most favorable to plaintiff, a trier of fact could easily find disparate treatment. This case is best viewed as a "mosaic" case in which there is circumstantial evidence which, when viewed in the light reasonably most favorable to Carter, would allow a reasonable jury to infer intentional discrimination. Carter presented evidence that he was not given any job responsibilities, that he did not receive annual performance reviews, and that he was not notified of other employment opportunities. At this point, there is no apparent explanation for the Army's behavior other than a motivation based on Carter's disability and/or his efforts to assert his rights as a person with a disability.
Carter presented evidence that he was not given responsibilities equal to his job classification and grade. While Carter worked as a GS-10 Staff Specialist, the duties actually assigned to him equated to a GS-3 position. During Carter's employment as a GS-10 Assistant Inspector, he spent most of his time preparing for an examination. After he passed the examination, the Army did not allow Carter to continue taking tests to enhance his employment qualifications; the Army also did not give Carter any employment duties or responsibilities. When he worked as a GS-9 Military Personnel Management Specialist, Carter was not given any meaningful work to do. He spent most of his time reading books to help the time pass. This evidence presents a genuine issue of material fact on whether the Army limited, segregated, or classified Carter in a way that adversely affected his opportunities and status because of his disability.
The Army attempts to portray Carter's disparate treatment claim as limited to the mock RIF, which creates a strawman that is easily knocked aside. Both parties acknowledge that the mock RIF did not affect Carter's position or benefits.
Furthermore, the Army's stated reasons for its decisions about what positions to offer Carter could reasonably be deemed pretexts for unlawful discrimination. The Army, focusing on the mock RIF, argues that Dawn Pastick did not discriminate against Carter during the mock RIF. Pastick decided to offer Carter the GS-7 Unit Administrator position because no GS-10 positions were available. The Army argues that it had good reasons for not offering Carter any of the several available GS-9 positions available: Pastick could not find a record of experience in Carter's personnel folder qualifying him for these positions. Def. Br. at 20-21, citing EEO Hr. Tr. at 87. Of course Carter did not have qualifying experience: the Army had not been accommodating his disability, had not been assigning him duties, and had not been evaluating his performance.
The record currently before the court does not include a complete list of the books Carter read instead of performing meaningful duties, but if Carter had a chance to read Joseph Heller's Catch-22, he might have seen some parallels between the Army's reliance on Carter's lack of experience and the Army's (specifically, the Army Air Corps') original Catch-22 from the novel. In chapter five, Yossarian begged Doc Daneeka to ground him from flying more bombing missions because he was supposedly crazy. Doc explained that as soon as anyone asks to be grounded for being crazy, he cannot be grounded. There was a catch, Doc explained — "Catch-22" — which specified that a concern for one's own safety in the face of dangers that were real and immediate was the product of a rational mind. According to Catch-22, anyone who wanted to get out of combat duty wasn't really crazy. Yossarian responded to the simplicity of Catch-22 with a respectful whistle and said, "That's some catch, that Catch-22."
Similarly here, the Army explains that it could not offer Carter a higher position because his personnel folder did not show the qualifying experience necessary for a higher position. Of course not. Carter lacked the qualifying experience because the Army did not give him any meaningful employment responsibilities and duties, even after the Army EEO had ordered the Army to accommodate his disability. This explanation fails to show a legitimate and non-discriminatory reason for the Army's actions. If the Army had complied with the earlier EEO order and had assigned Carter job responsibilities and provided performance evaluations, Carter could have had the experience and documentation necessary in his personnel file. A reasonable jury could reject the Army's explanation as pretext for unlawful discrimination. The issue here is not whether Dawn Pastick discriminated against Carter but whether the United States Army discriminated against Carter based on his disability. Summary judgment on Carter's disparate treatment claim is denied.
C. Retaliation Claim
The regulations under the Rehabilitation Act make it unlawful for a federal agency employer to retaliate against any individual who exercised or enjoyed any right granted or protected by the statute. 29 C.F.R. § 1614.101 ("No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act (title VII) ( 42 U.S.C. § 2000e et seq.), the Age Discrimination in Employment Act (ADEA) ( 29 U.S.C. § 621 et seq.), the Equal Pay Act ( 29 U.S.C. § 206(d)) or the Rehabilitation Act ( 29 U.S.C. § 791 et seq.) or for participating in any stage of administrative or judicial proceedings under those statutes."); see also Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001) (applying general retaliation standards to claim of federal employee under Rehabilitation Act); Roth v. Lutheran General Hospital, 57 F.3d 1446, 1459-60 (7th Cir. 1995) (assuming Rehabilitation Act recognizes retaliation claim). Carter alleges that the Army unlawfully retaliated against him because he requested reasonable accommodations for his disability and filed EEO charges.
To survive summary judgment, Carter must come forward with evidence that would allow a reasonable trier of fact to find that the Army took adverse action against him because he engaged in protected activity under the Rehabilitation Act. He can do so either by offering direct evidence or by using an adaptation of the McDonnell Douglas test. Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002). Carter can survive summary judgment if he comes forward with "direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains." Id. According to the Seventh Circuit, "If the evidence is uncontradicted, the plaintiff is entitled to summary judgment. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had no retaliatory motive; in that event the defendant is entitled to summary judgment because he has shown that the plaintiff wasn't harmed by retaliation." Id. The Army concedes that Carter engaged in protected activity by seeking reasonable accommodations and by filing EEO charges.
The Army argues that Carter did not suffer any adverse employment action as a result of engaging in the protected activity. Even the actual RIF where Carter had his grade reduced from GS-10 to GS-9 does not amount to adverse employment action, according to the Army, because Carter's pay and retirement and other benefits were not reduced. Def. Br. at 18.
The Seventh Circuit has defined an adverse employment action as "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Traylor v. Brown, ___ F.3d ___, ___, 2002 WL 1484483 at *3 (7th Cir. July 12, 2002). However, "not everything that makes an employee unhappy" is an actionable adverse action. Id.
Even though Carter retained the same salary and benefits, Carter Dep. at 70-74, the facts viewed in the light reasonably most favorable to Carter indicate that he suffered an adverse employment action. While an adverse employment action normally results in tangible economic consequences (e.g., termination, demotion, or reduction of salary and retirement benefits), it is not required to do so to be considered adverse employment action. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912, 916-17 (7th Cir. 1996) (holding that plaintiff established that the employer's actions affected a tangible aspect of her employment when it took away her title and prevented her from engaging in committee work); Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (moving an employee "from a spacious, brightly lit office to a dingy closet" could constitute an adverse employment action); McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994) (employee suffered adverse job action where she had fewer responsibilities, was made to perform more menial tasks, and had lesser opportunity for salary increases in her new position); Collins v. Illinois, 830 F.2d 692, 702-04 n. 7 (7th Cir. 1987) (collecting cases and holding involuntary transfer of employee to a lateral position with lesser responsibilities and working conditions amounted to adverse employment action even where the transfer did not result in a reduction of pay or benefits).
Viewing the facts in the light reasonably most favorable to Carter, a reasonable jury could find adverse employment action as a result of engaging in the protected activity by simply looking at the events following Carter's filing of the EEO charge. Carter initiated contact with an EEO counselor in April 1996, Carter Dep. at 23, and filed the most recent charge of discrimination on May 20, 1996. Prior to initiating contact with an EEO officer, Carter was given the responsibility of preparing for an examination to increase his qualifications and working opportunities. In April 1996, Carter passed the examination, but he was not allowed to continue taking exams or given other employment responsibilities. After the actual RIF, the Army assigned Carter to the 88th Regional Support Group as a Military Personnel Management Specialist, GS-9. Carter was given no duties, and he spent most of his time reading. The Army's failure to give Carter notice of job opportunities and performance evaluations continued throughout this time period.
Carter was in a truly dead-end job. His opportunities for advancement and promotions were essentially nil. Since performance awards were given on performance evaluations, the Army's failure to give Carter performance evaluations also precluded him from being able to receive any awards. These actions materially affected tangible aspects of Carter's employment and constitute adverse employment action.
The timing of the events discussed above also supports the conclusion that the adverse employment action was the result of engaging in the protected activity. The absence of a legitimate and non-discriminatory reason for the adverse action further supports the inference of retaliation. Therefore, Carter has presented sufficient evidence for a reasonable trier of fact to conclude that the Army retaliated against him for engaging in protected activity and summary judgment is denied on this claim.
Conclusion
For the foregoing reasons, the motion to dismiss filed by defendant Secretary of the Army Thomas E. White is granted with respect to counts two and five, plaintiff Carter's claims under the Americans with Disabilities Act, and denied in all other respects. Defendant's motion for summary judgment is denied.
So ordered.