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Shick v. Illinois Dep't of Human Services

October 09, 2002


Appeal from the United States District Court for the Southern District of Illinois. No. 98-4353--G. Patrick Murphy, Chief Judge.

Before Flaum, Chief Judge, and Manion and Rovner, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge.


Richard Shick, armed with a sawed-off shotgun, robbed a convenience store in Joliet, Illinois. At the time, he was employed as a case worker at the Illinois Department of Public Aid. After the robbery, he sued the Department, claiming that he was discriminated against because of his disabilities and his sex, and that the discrimination and treatment resulting from it caused him such trauma that he committed the robbery. A jury concluded that the Department did discriminate against him because of his disabilities and sex, and awarded him $5 million in damages and $166,700.00 in back pay. Because the Seventh Circuit ruled that the ADA was not a valid abrogation of the states' Eleventh Amendment immunity, the district court vacated the disability judgment and then capped the judgment for sex discrimination at $300,000.00. The court then awarded $303,830.00 in front pay. The Department appeals. We reverse and remand.


The evidence most favorable to Richard Shick, which is what we must consider since he was the successful party below, Sheehan v. Donlan Corp., 173 F.3d 1039, 1043-44 (7th Cir. 1999), is taken primarily from his own testimony and exhibits at trial. Shick, who was 52 at the time of trial, was the youngest of eight children. He grew up in a poor but stable family, graduated from high school, and after a couple of short-term jobs, joined the Army in 1966, when the Vietnam war was heating up. His first duty tour was in Holland where he met his wife. They have been married for over 30 years. He interrupted his service to acquire a college degree in 1977. After a successful 20-year career in the Army, where he received several commendations and rose to the high enlisted rank of Master Sergeant, he retired. He proceeded to work in various jobs, and in 1990 he was hired as a case worker in the Marshall, Illinois office of the State Department of Public Aid. While in the Army, he incurred two disabilities: hearing loss due to his proximity to a loud explosion, and permanent intestinal bleeding from exposure to some disease while serving in Italy. Despite these maladies, during his first four years at the Department Shick performed his job well and enjoyed his work. But on August 8, 1994, when Susan Yargus was hired as administrator for the Marshall office, things changed dramatically. As Shick testified at trial, "We just seemed to butt heads all the time." Apparently the tension began right away. In a three-page single-spaced interoffice memo dated September 8, 1994, just one month after Yargus arrived, Shick had some critical observations about Yargus's policies on break-time, phone calls, work priorities, office procedures, and Yargus's lack of management experience. In the ensuing weeks and months, a number of other memos and meetings occurred, many challenging Yargus's unfair treatment of Shick.

The unfairness that Shick referred to permeated the two-year period that Yargus supervised the office prior to his departure. Much of the controversy concerned her insensitivity to his disabilities, and her unequal application of office rules concerning break-time, smoking and eating. When Yargus arrived in August 1994, Shick's disabilities were multiple. In addition to the intestinal bleeding and hearing loss, an injury to his left eye caused almost complete loss of vision and his other eye, originally the weakest, required additional surgery and significant medication. The eye condition caused serious pain and headaches. He also developed carpal tunnel syndrome in both arms, which required operations and two leaves of absence, each lasting several weeks. In addition, because of sleep apnea, he needed rest, preferably a nap, during his half-hour lunch break. He was also tall and overweight and preferred a particular chair. And he had occasional problems with his teeth. For each of these problems, he needed some accommodation.

The medical situation that appeared to generate the most conflict at the office was the intestinal disease that caused internal bleeding and required frequent trips to the bathroom. He claims that Yargus was suspicious of his bathroom habits, and thought he was exaggerating the need in order to create opportunities for additional break-time when he could smoke. According to Shick, Yargus occasionally banged on the bathroom door because he was in there too long and she insisted that he obtain a letter from his doctor stating that the frequent bathroom use was necessary due to his condition. Since he was the only man in the office, Shick had exclusive use of the employee's men's bathroom (although some of the women claimed they snuck in there for occasional smoke breaks as well). In order to mitigate his fatigue from sleep apnea, he had a sleeping bag on the bathroom floor so he could nap during his lunch break. Yargus made him remove it.

When he needed batteries for the headset that amplified phone conversations, Yargus delayed replacing them so he had to buy them himself. She also moved a copy machine and printer near his desk, creating noise that further interfered with his already-impaired hearing. She had his favorite chair replaced with one that he had to adjust many times per day. There was also evidence that Yargus required Shick to administer his eye-drops at his desk (as opposed to allowing him to use the restroom for that purpose) because she suspected him of using that time to also take a smoking break.

Although the office obtained an additional computer terminal, at least partially to accommodate his carpal tunnel syndrome, Yargus assigned it to a female caseworker who supposedly had seniority. Although Shick did take extensive leaves for operations, one for an eye procedure and two for carpal tunnel syndrome, he also requested authorization for a number of one-or two-day leaves to address other medical problems, but Yargus often resisted. He also asserted that in addition to Yargus, those higher in the chain of authority were also not sufficiently accommodating to his disability needs.

In addition to Yargus's insensitivity to his medical problems, Shick claims that she treated him less favorably than female caseworkers. She strictly enforced his time for taking breaks, while she was much more lenient with the women. In fact, Shick kept a detailed log of the break-time for his female co-workers to prove to Yargus that their breaks were longer, but Yargus refused to recognize it. She occasionally criticized him for eating at his desk at inappropriate times, while the women were not corrected for doing the same. And the women caseworkers were each assigned their own (albeit small) offices, while his desk was in the open near Yargus's office where "she could keep an eye on him." She occasionally made other negative comments about men. Shick attributed these negative feelings to the serious conflicts she encountered with her husband in her recent divorce.

In 1992, before Yargus came on board, Shick began working for an outside business selling metal buildings. When Yargus arrived, she pressured him to cease all business-related calls while at work, but when another female caseworker's husband was out of town, she did not object to that caseworker taking his calls.

As time passed, Shick's medical problems increased, especially the problems with his eyes and carpal tunnel syndrome. At the same time he was becoming more and more depressed about his job because of the way Yargus treated him. Early in 1996 he wrote Janet Wilson, the Department's EEO director, to complain about Yargus's discriminatory treatment. Wilson eventually called back, but at the time Shick was on sick leave. When he returned, Wilson was apparently on leave. He also claims that he received the phone message late. When he did call in July he discovered that Wilson had done very little to advance the investigation of his complaints. At that point, he concluded that no one in State government was going to take care of his problems.

On July 22, 1996, Shick sent a memo to Yargus stating, "I have had a lot worse pain in my eye the last few days and am taking large doses of pain medication so I can work . . . . I may act a little spacy as both keep me sick in my stomach also. I'll try not to take any more time off." He testified that he made the "time off" promise "because there was a lot of conflict. I was having a lot of time off because of all of the operations and there was a lot of conflict on whether it was needed or not." Also, at this point, Shick was having what he described as mental problems. He sought help "higher in the chain of command" in the State to no avail. He "talked to the union because they had a program to help people that were having mental problems." He also talked to a local doctor about it to get help. Nothing seemed to work. At that point he was "terribly depressed" and was having "panic attacks" ...

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