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August 18, 1994



The opinion of the court was delivered by: SUZANNE B. CONLON

Roosevelt Randle sues Lloyd M. Bentsen, the United States Secretary of Treasury, and Margaret M. Richardson, Commissioner of the United States Internal Revenue Service ("the IRS") (collectively "the defendants") for disability discrimination. Randle sues under the Rehabilitation Act, 29 U.S.C. § 701, et seq., contending that the IRS failed to promote him and then dismissed him because he is legally blind. Randle also claims that the defendants violated the Freedom of Information Act, 5 U.S.C. § 552, et seq. ("FOIA") by withholding relevant documents. The defendants move for summary judgment. *fn1"


 Randle is legally blind. See Randle Aff., P 4. On February 17, 1987, Randle was hired by the IRS as a tax technician in the examination division of the IRS' Chicago office. See Def. Rule 12(m) Stmt., P 10. *fn2" After working for the IRS for three years, Randle applied for a position as a revenue agent; he interviewed for the position on November 7, 1990. Id., P 15. The day before his interview, Randle received notice (by letter dated November 1, 1990) that the IRS planned to institute an adverse personnel action against him. Id., P 10.

 The IRS charged that Randle had violated its rules of conduct by making false and misleading statements on employment documents. See Def. Rule 12(m) Stmt., P 10. The IRS charged that Randle had provided false and misleading statements on both his employment application, which he submitted in February 1986, and his security investigation form, which he completed after he assumed his position. Id., PP 5-6, 10. Specifically, the IRS charged that Randle: (1) failed to disclose an outstanding arrest warrant (to which he has since pled guilty); (2) failed to disclose that he had been fired by a previous employer; and (3) misrepresented his reasons for leaving another previous position. Id., PP 6-9, 11-14.

 During the investigation, Randle admitted that there had been an outstanding arrest warrant against him, and acknowledged that he had been fired -- not laid off -- from a previous position. See Def. Rule 12(m) Stmt., PP 11-13. However, Randle attests that at the time he completed his employment application, he was unaware of the arrest warrant and misunderstood the reasons for his prior termination. See Randle Aff., PP 17-27. Thus, Randle argues that he answered the questions "completely and correctly to the best of his knowledge and belief." Id., P 23.

 The IRS district director sustained three of the four allegations asserted against Randle in the adverse action. *fn3" See Def. Rule 12(m) Stmt., P 14. Based on his factual findings, the district director discharged Randle from his position. Id. Prior to his dismissal, Randle interviewed for the position of revenue agent, and subsequently learned that he had not been selected for that position even though he was found qualified by the interviewers. See Answer, PP 29-30. The IRS official who declined to offer the position to Randle later testified that Randle was not selected because of the adverse action against him. See Def. Rule 12(m) Stmt., P 16. The same official also testified that he was not aware of Randle's visual impairment when he made the decision. Id.

 After his discharge, Randle filed a complaint with the IRS' Regional Complaint Center, *fn4" and then appealed to the IRS' Merit Systems Protection Board ("the merit board"). In May 1991 an administrative law judge ("the ALJ") conducted a hearing. In June 1991, the ALJ issued the merit board's initial decision, affirming two of the IRS' reasons for firing Randle, and finding that Randle had not demonstrated any meritorious affirmative defenses. Consequently, the ALJ found that Randle failed to establish a prima facie case of disability discrimination. *fn5"

 On May 16, 1991, Randle sent a FOIA request to the IRS' Washington, D.C. headquarters, requesting copies of his background investigation report, including all attachments to the report and all information used in generating the report. See Answer, P 72. On June 5, 1991, the IRS responded to the FOIA request by producing an edited copy of the background investigation report; the IRS withheld two exhibits. Id., P 74. On July 23, 1991, Randle tendered a second FOIA request, seeking all documents within the IRS' control regarding the adverse personnel action against him. Id., P 76. Subsequently, the IRS released documents and information, but withheld selected documents -- purportedly in reliance on FOIA exemptions. See Def. Rule 12(m) Stmt., P 19.

 In September 1991, Randle filed suit in this court, claiming that the defendants discriminated against him by declining to promote him and firing him, in violation of the rehabilitation act. Randle also asserted FOIA violations. The court dismissed the action without prejudice. See Memorandum Opinion and Order, 1992 U.S. Dist. LEXIS 1764, No. 91 C 5757 (N.D. Ill. Feb. 19, 1992). Randle subsequently filed an amended complaint in July 1992, and in September 1992, moved for summary judgment on Count III. *fn6" In response, the IRS filed a cross-motion for summary judgment on all three counts.

 Before ruling on the motions, the court issued a rule to show cause why the case should not be dismissed for lack of subject matter jurisdiction; upon a return of the rule to show cause, the court dismissed the action for lack of jurisdiction. See Memorandum Opinion and Order, 1993 U.S. Dist. LEXIS 177, No. 91 C 5757 (N.D. Ill. Jan. 8, 1993) at 6-9 (citing Hill v. Department of Air Force, 796 F.2d 1469 (Fed. Cir. 1986) (Federal Circuit has exclusive jurisdiction in IRS appeal when plaintiff fails to allege discrimination)).

 On appeal, the Seventh Circuit reversed this court's decision dismissing the action. See Randle v. Bentsen, 19 F.3d 371 (7th Cir. 1994). The Seventh Circuit found that Randle had sufficiently alleged discrimination in his amended complaint, and it therefore was error to dismiss the action for lack of subject matter jurisdiction. See Randle, 19 F.3d at 374-75. The Seventh Circuit remanded for resolution of summary judgment issues. Id. at 375. After remand, Randle filed a second amended complaint, and the defendants filed an amended memorandum in supporting its pending motion for summary judgment.


 In ruling on a motion for summary judgment, the court must "decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The court grants summary judgment pursuant to Fed. R. Civ. P. 56(c) when the moving papers indicate that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). A genuine issue of material fact exists when "the evidence is ...

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