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Hayes v. Potter

November 13, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99-C-904--Sidney I. Schenkier, Magistrate Judge.

Before Flaum, Chief Judge, and Diane P. Wood and Williams, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.


Diana Hayes works for the United States Postal Service. She initiated this action against her employer, claiming that it violated her rights under the Rehabilitation Act of 1973, 29 U.S.C. § 791, and that it retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The case proceeded to trial. At the close of all the evidence, the district court granted the Postal Service's motion for judgment as a matter of law on the Rehabilitation Act claim. The Title VII retaliation claim went to the jury, but the jury also found in favor of the Postal Service. Hayes filed a motion for a new trial on the retaliation claim under FED. R. CIV. P. 59. The district court denied the motion, and Hayes now appeals only from that ruling.


There was a full trial on Hayes's retaliation claim. This has important consequences for Hayes's appeal, because it means that she faces a difficult standard of review. Although we will look at the entire record, the only question we may consider is whether the district court abused its discretion in its decision to deny the Rule 59 motion. See, e.g., Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 921 (7th Cir. 2002); Harris v. City of Chicago, 266 F.3d 750, 753 (7th Cir. 2001). We do not re-weigh the evidence; instead, we must view the record in the light most favorable to the prevailing party, here, the Postal Service. Research Sys. Corp., 276 F.3d at 921.

Hayes worked at the mail distribution warehouse in Bedford Park, Illinois. Her position required her to sort and distribute letters into mail slots. She was assigned to Tour 3, a shift that ordinarily began around 5:30 p.m. and ended at 2:00 a.m. There are two other shifts in the Postal Service. Tour 1 begins around 11:00 p.m. and ends between 7:00 and 8:00 a.m., while Tour 2, the most coveted shift, begins at 7:00 a.m. and ends at 3:00 p.m. All Postal Service employees receive two days off each week, not necessarily on the weekend; Hayes's official days off were Saturday and Sunday.

In 1995, Hayes filed charges in which she claimed that her supervisor, Jerry Cubic, had discriminated against her. That case proceeded to trial in 1997 and continued until Hayes became ill and required heart surgery. At that point, her lawsuit was dismissed without prejudice because she was unable to attend the rest of the trial.

Following her surgery, the Postal Service approved medical leave for Hayes for the period between February and April 1997. On April 7, Hayes returned to work, after both Dr. Patrick O'Leary, her personal doctor, and Dr. Anthony Bilotta, a contract doctor for the Postal Service, gave their approval. She was placed on Tour 3 and was instructed to report to Juanita Smallwood, the manager of distribution operations. In late April and again in May 1997, Hayes asked Smallwood to change her hours from a shift beginning at 5:30 p.m. to an earlier shift. Eventually, hoping to support that request, she submitted a letter from Dr. O'Leary stating that Hayes was to work "light duty, 6 hours only, must start work by 8:00 a.m." Smallwood disapproved this request, explaining that the doctor's statement did not explain why her medical condition required any changes. Nonetheless, in an effort to accommodate Hayes, Smallwood permitted her to begin work at 3:00 p.m and end at 9:00 p.m.

During this period, Hayes filed a series of Equal Employment Opportunity (EEO) complaints, naming several employees and managers including Smallwood. On June 3, 1997, Hayes wrote a letter to Smallwood complaining that Smallwood's decision to deny her request for temporary light duty on Tour 2 was "discriminating and retaliatory" and motivated by Hayes's EEO grievance and union activity. Hayes also asserted that a 3:00 p.m. start time was against her "doctor's prescribed restrictions." The letter reflected that it was copied to Celestine Green, the Plant Manager, along with Ruby Tarver and Todd Hawkins, both Postal Service managers. On June 28, Hayes wrote another letter accusing Smallwood of retaliation, harassment, and discrimination. She addressed this letter to Green and again copied Smallwood, Hawkins, and Tarver.

Hayes responded to her lack of success in securing the desirable 8:00 a.m. start time by stopping coming to work altogether; this meant that she was Absent Without Official Leave (as in the military, AWOL) from most of May through the beginning of August 1997. In August, Hayes again asked for a change in start time, this time submitting a Postal Service light duty request form completed by her doctor that stated Hayes needed a daytime, five-hour schedule. Smallwood eventually agreed to give Hayes temporary light duty, with an 8:00 a.m. start time. This position lasted until the end of March 1998. Hayes was then ordered to report back to her official Tour 3 assignment.

In protest, Hayes again was AWOL from the end of March until the end of May 1998. On May 2, Hayes initiated the request that led directly to this lawsuit. She wrote to Green requesting a permanent light duty assignment on Tour 2. Her doctor also sent a letter to Green, stating that nighttime sleeping hours could help with Hayes's recuperation and that her medication caused drowsiness. Nurse Administrator Lillie Yancey responded to Hayes's application with her own request for additional information, including medical records. Hayes's doctor provided her records as well as a letter that stated she should not lift over 20 pounds and she had to keep reaching above her shoulders to a minimum. On August 20, Green denied Hayes's request for a permanent change in work hours after consulting with several administrators because Hayes's "doctor's letter did not request a change of tour," and the "limitations and prescribed medications do not warrant a change of tour."

Hayes asked the Postal Service to reconsider its decision on August 25, 1998, stating that she disagreed with its interpretation of her doctor's letter. Three days later, James Malone, the union president, also wrote a letter in support of Hayes's request. Green agreed temporarily to postpone a final decision while a Postal Service contract doctor reviewed Hayes's medical records. After receiving information from Dr. Sherri Phillips, Green wrote Malone denying Hayes's request on September 2, 1998. The following day, after speaking with Hayes's personal doctor, Dr. Phillips sent a letter to Green, recommending that the Postal Service honor her physician's request.

On October 2, Hayes and Malone sent a letter to Green asking what action the Postal Service intended to take in response to Dr. Phillips's most recent letter. To clear up what the Postal Service viewed as an inconsistency, it instructed Hayes to report to a fitness-for-duty examination with Dr. Bilotta. After a routine physical examination, Dr. Bilotta found that Hayes had high blood pressure and referred Hayes to Dr. Leonard Kessler for psychological counseling to determine whether Hayes needed a permanent light duty assignment due to anxiety and stress. After Dr. Kessler met with Hayes and reviewed reports from Dr. O'Leary and Dr. Bilotta, he found that Hayes did not have a psychiatric illness. Dr. Phillips passed along the word to the Postal Service that Hayes did not ...

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