United States District Court, N.D. Illinois
March 19, 2004.
SANDRA SUTTON, Plaintiff,
JOHN E. POTTER, Postmaster General of the United States Postal Service, Defendant
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Sandra Sutton (hereafter, "Sutton") filed suit against John
Potter, as Postmaster General of the United States Postal Service
(hereinafter, the "USPS"), asserting three counts of discrimination
and/or retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 791,
and the Age Discrimination in Employment Act, 29 U.S.C. § 621. Count I
alleges that USPS committed disability discrimination against Sutton by
terminating her rather than reasonably accommodating her medical
condition of allergic rhinoconjunctivitis. Count II alleges that USPS
retaliated against Sutton for complaining about her disability
discrimination. Count III, since dropped by Sutton, alleged that USPS
also committed age discrimination against her. Sutton and USPS have filed
cross-motions for summary judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Sutton's motion seeks summary judgment only as
to Count I, whereas USPS prays for summary judgment on both Counts I and
I. LOCAL RULE 56.1
Local Rule 56.1 of the United States District Court for the Northern
District of Illinois ("Local Rule 56.1") establishes procedures that both
moving and opposing parties must follow in filing and responding to a
motion for summary judgment. Under Local Rule 56.1, the moving party must
submit a statement of material facts with "references to the affidavits,
parts of the record, and other supporting materials relied upon." Local
Rule 56.1(a)(3). In turn, the opposing party must file "a response to
each numbered paragraph in the moving party's statement," and, in the
case of disagreement, provide specific references to supporting
evidentiary material. Local Rule 56.1(b)(3)(A). If the opposing party
does not respond and controvert the moving party's statement of material
facts, those facts are deemed to be admitted for the purposes of the
motion. Local Rule 56.1(b)(3)(B); Smith v. Lamz, 321 F.3d 680, 683 (7th
For the most part, USPS adequately responded to Sutton's Local Rule
56.1 statements. However, as to Sutton's paragraphs 408-414 (statements
mostly concerning Sutton's requests for transfer into administrative
positions in the early 1990s), USPS failed to comply sufficiently with
Local Rule 56.1's requirement that it file disagreements with specific
references to supporting evidentiary material. Local Rule 56.1(b)(3)(A).
Concerning paragraphs 408-413, USPS responds merely by admitting that
Sutton "avers" or "testified" as such never disputing Sutton's
testimony with any
supporting evidentiary material. Therefore, the Court deems paragraphs
408-413 admitted and considers them true in the factual record detailed
Likewise, in paragraph 414, Sutton stated that "USPS already had her
applications on record and her supervisors knew of them as well." USPS
responded by denying that Sutton's CFS supervisors knew of the specific
positions that she applied for. However, USPS supported its response only
with testimony from the affidavit of Margaret Hoffman. This testimony, in
context, only partially refutes Sutton's paragraph 414. In it, Hoffman
states only that she doesn't remember if she ever knew whether Sutton
applied for any other jobs, and conceded that she "may have" told Sutton
she was too sick to get those positions. Therefore, this statement is
also partially admitted, to the extent that it does not contest that
Sutton's supervisors (plural) knew of the positions she applied for, nor
does it dispute that Hoffman knew of her applications disputing
only that Hoffman does not remember if she knew.
II. FACTUAL BACKGROUND
The Court compiled the following factual record through thorough study
of the parties' briefs, Local Rule 56.1 Statements of Material Facts, and
evidentiary materials. Based on all available information, the Court
concludes that although the parties might disagree as to small details in
the factual record, they do not dispute any material facts. Even in some
of these rare
minor disputes, the Court concluded that the supporting evidence
unquestionably supported one party's version of the events beyond the
ability of any reasonably jury to find to the contrary.
In October 1988, USPS hired Sutton to work as a Central Mark Up clerk
in the Central Forwarding System ("CFS") Unit at the North Suburban
facility in River Grove, Illinois. As early as 1989, Sutton's work in the
dusty CFS environment caused her to develop a medical condition known as
allergic rhinoconjunctivitis. In 1991, upon a recommendation from
Sutton's doctor, the USPS Medical Department ordered that USPS place
Sutton in a "temporary light duty assignment" in a "dust free area." On
April 2, 1992, the U.S. Department of Labor Office of Workers'
Compensation Programs (the "OWCP") accepted Sutton's claim of
On April 21, 1992, USPS transferred Sutton to the recently-completed
facility in Palatine. Because the room housing Palatine's CFS unit was
not complete, USPS directed Sutton to work on a different floor handling
magazines. Within five hours of arriving at Palatine, Sutton suffered a
serious allergic attack as a result of her disability and the conditions
on the magazine floor. Sutton went home and never returned to work at
Palatine or anywhere else for USPS.
Throughout 1991, 1992 and 1993, numerous doctors filed medical reports
on Sutton's behalf to USPS, frequently requesting her transfer to a
dust-free environment. These requests continued after Sutton's
unsuccessful transfer to Palatine, and the resulting
allergic attack. On April 27, 1992, shortly following Sutton's allergic
reaction at Palatine, USPS Fitness for Duty Doctor Sarmiento recommended
that Sutton "needs to be transferred to an office environment free of
dust mites and irritants that may exacerbate her symptoms, ideally out of
Central Markup Unit. In December 1992, Sutton's personal physician Dr.
Percy May concurred, declaring Sutton "totally disabled" but advising
that "she be moved to an area free from dust, dust mites, paper mites,
and away from all odors associated with computer and other machine
operated apparatus. In December 1993, Dr. May again certified that Sutton
should not work "until she is able to work in a dust and mite free
Beginning in 1989, and accelerating in 1991 and early 1992, Sutton also
applied for other positions within USPS, but did not receive any of them.
Most of these applications occurred prior to her transfer to Palatine,
and the subsequent allergic reaction. The last recorded incident of
Sutton applying for a non-CFS job occurred on May 21, 1992, when Sutton
applied for six open non-CFS jobs. Following this mass-application,
Sutton never again sought work outside of CFS as she believed USPS had
her applications on file.
On April 22, 1993, the day after the incident at Palatine, USPS wrote
Dr. May requesting his assistance in finding alternative work for Sutton,
and posing a number of specific questions to him concerning what kind of
work he would deem appropriate.
Specifically, USPS asked if Sutton could work as a letter carrier,
as a clerk in a small non-mechanical office, or as an employee at either
a mechanized or non-mechanized manual distribution center or office
environment, and whether she still had restrictions from working near
computers. Despite his previous and subsequent opinions that Sutton could
work in a dust-free environment, Dr. May responded to this inquiry only
by stating that Sutton was "totally disabled for usual work." Dr. May
neither responded to USPS' specific job questions, nor did he suggest any
type of work that Sutton could do.
Between 1993 and 1997, neither Sutton nor USPS demonstrated any
practical interest in getting Sutton back to work either at her old job
or in a new assignment. During this period, Sutton filed no additional
job applications or transfer requests, choosing instead to collect
disability benefits. USPS, for its part, made sporadic and lackluster
efforts toward returning Sutton to employment. The Court documents these
efforts, in full, below.
In March 1994, USPS scheduled Sutton for a work capacity evaluation
with an allergist to determine what USPS work she could do. However, when
Sutton could not attend this appointment due to an unrelated surgery,
USPS never rescheduled it. In June 1995, USPS wrote to OWCP seeking a
second medical opinion regarding Sutton's disability. In September 1996,
USPS directed Sutton to undergo an evaluation by Dr. Baltazar Espiritu
concerning her condition. Dr. Espiritu recommended that USPS assign
Sutton to a
"relatively new building as workplace, complete with adequate
ventilation" to "determine whether her symptoms would recur while working
as a central mark up clerk," In April 1997, OWCP referred Button to Dr.
Margaret Matheis, a rehabilitation counselor, to help facilitate Sutton's
In August 1997, USPS finally issued Sutton a limited-duty job offer to
return her to work. USPS offered to send Sutton back to Palatine as an
automated mark up clerk, the same position she held previously, but with
a clean air machine installed near Sutton's work station. Sutton rejected
this job offer, after Dr. May opined that it would inadequately
accommodate her condition. In particular, Sutton objected that USPS's
proposed clean air machine accommodation was too weak to sufficiently
clean the large CFS room. Sutton notes that the actual machine that USPS
purchased for her, in May 1998, can handle up to 15,000 cubic feet,
whereas the CFS room totals 169,920 square feet. Sutton further objected
that USPS offered her only a "limited duty" assignment, a USPS
classification designed to accommodate only temporary disabilities.
However, Sutton notes that even USPS conceded in a September 27, 1997
that she "needs a permanent job offer at some point," proving that USPS
did not believe that the Palatine CFS position amounted to a
Additionally, under USPS regulations, a disabled employee's rejection
of a job offer should trigger a "suitability" determination. This entails
USPS investigating whether the offered
job would sufficiently accommodate the disabled employee. A USPS finding
that the job is "suitable" would result in the employee losing disability
benefits. Here, USPS failed to ever conduct the required suitability
determination permitting Sutton to reject the job offer without losing
her disability benefits.
USPS reacted to Sutton's rejection of this job offer by effectively
doing nothing for nearly three years. In May 2000, OWCP sent Sutton a
letter declaring that it no longer considered her too disabled to resume
work as a central mark up clerk. Although Sutton protested OWCP's
decision with medical evidence from Dr. Marsha Vetter, OWCP refused to
rescind its decision. On July 6, 2000, OWCP notified Sutton that her
benefits would end effective July 15, 2000, more than eight years after
Sutton first went on disability leave. When Sutton did not show up for
work at Palatine on July 15, 2000, USPS informed her that it considered
her absence undocumented leave and informed her that if she was ill, she
would need to submit medical verification of her inability to work,
Sutton responded by contacting USPS's Leave Control and requesting an
additional 30 days of unpaid leave due to sickness. For the next sixteen
months, Sutton followed the same procedure of calling in sick once a
month and requesting more unpaid leave, supported by letters from Dr. May
declaring her permanently disabled. At no time during this period did
Sutton express a desire to return to work or request a transfer or other
employment accommodation. For its part, USPS concedes that it had
jobs to which it could have transferred Sutton during both her time
on disability and unpaid medical leave.
On October 5, 2001, an OWCP hearing representative issued a written
opinion affirming OWCP's decision to cut Sutton's disability benefits. The
written opinion gave Sutton ninety days to appeal to the Employees'
Compensation Appeals Board, which Sutton, according to her amended
complaint, pursued. However, the Court has no knowledge of the outcome of
this appeal or if the appeal remains ongoing. Also, in October 2001,
USPS sent Sutton a letter offering her a choice of three ways to end her
career at USPS: resignation, optional retirement, or disability
retirement. Sutton instead elected the unmentioned option four: she filed
an informal complaint with the USPS' Equal Employment Opportunity office
(the "EEO"), asserting a claim of "unreasonable accommodation for medical
restriction." In November 2001, Sutton received a notice of
"administrative separation" (i.e., termination) from USPS. In December
2001, Sutton formally complained to the EEO.
III. STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." FED.
R. CIV. P. 56(c). A fact is "material" if it could affect the outcome of
the suit under the
governing law; a dispute is "genuine" where the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden is initially upon the movant to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In assessing the moving party's claim, the court must view
all the evidence and any reasonable inferences that may be drawn from
that evidence in the light most favorable to the nonmoving party. Miller
v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the
moving party has met its burden, the nonmoving party "may not rest upon
the mere allegations" contained in its pleading, but rather "must set
forth specific facts showing that there is a genuine issue for trial."
FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107,
110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613,
620 (7th Cir. 1989). It "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A. Statute of Limitations
USPS argues that nearly all of Sutton's claims prior to September 2001
are time-barred. USPS noted that a federal employee asserting a
discrimination claim must contact an EEO counselor
within 45 days of "the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of the
action." 29 C.F.R. § 1614.105 (a)(1) Since Sutton first contacted the EEO
on October 25, 2001, USPS contends that she faces a statutory time-bar
prohibiting all of her claims stemming from conduct allegedly occurring
prior to September 10, 2001. This excludes all of Sutton's claims except
those arising from her October 2001 termination.
USPS further argues that Sutton cannot escape the statute of
limitations by taking advantage of the continuing violations doctrine,
for two reasons. First, USPS contends that a continuing violation is one
which not could be reasonably expected to generate a lawsuit when it.
first occurs, because its character as a violation did not become clear
until it was repeated, citing Dasgupta v. Univ. of Wisconsin Bd. of
Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). Here, USPS contends that
Sutton must have suspected discrimination as early at 1994, when she
filed a prior EEO complaint, and therefore cannot invoke the continuing
violations doctrine. Secondly, USPS argues that a job transfer, which is
what Sutton claims she sought, constitutes a single event and therefore
not a continuing act.
In general, the continuous violations doctrine permits a plaintiff to
get relief for a time-barred conduct "by linking it with an act that is
within the limitations period." Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000)(internal
citations omitted). A plaintiff may establish a continuing violation
under three theories: (1) the employer made the relevant employment
decisions over time, making the precise date of discrimination difficult
to determine; (2) the employer has an express policy of discrimination; and
(3) discrete acts of discrimination constitute an ongoing pattern, and
one of those acts occurred within the limitations period. Tinner v.
United Ins. Co. of America, 308 F.3d 697, 707 (7th Cir. 2002). However,
"the continuing violation doctrine is applicable only if it would have
been unreasonable to expect the plaintiff to sue before the statute ran
on the conduct." Filipovic v. K & R Express Sys., Inc., 176 F.3d 390,
396 (7th Cir. 1999).
Sutton responds to USPS's argument by attempting to establish a
continuing violations theory under what appears to be the first method.
Specifically, Sutton insists that her rejection of the August 1997 job
offer should have triggered the statutorily required "interactive
process" to accommodate her reasonably. In Sutton's view, the USPS'
inaction during this time amounts to a continuous neglect of its
statutory duty, tolling the statute of limitations. At a minimum, Sutton
argues that her receipt of OWCP disability benefits until July 2000
should excuse her from the requirement to file an EEC complaint till that
point. Beyond that, Sutton contends that the Court should further excuse
her because the OWCP decision cutting off her benefits did not conclude
until October 5, 2001, when an OWCP hearing officer issued a written
opinion (arguably, it did not conclude until even later, as the Court has
no knowledge of the outcome of her appeal).
Sutton's argument has some merit. While USPS is correct that a job
transfer constitutes a single act inappropriate for the continuing
violations doctrine, what is at issue here is a failure to transfer or
otherwise reasonably accommodate. Unlike a job transfer, which happens on
a precise date, the discrimination allegedly suffered by Sutton took the
form of a required event not happening over an extended, continuous
length of time. There was no definitive temporal marker distinguishing
for Sutton at what moment USPS' failure to accommodate ceased to
constitute the normal and expected administrative delay or red-tape
associated with the process of reasonably accommodating, and started
characterizing disability discrimination instead. Therefore, the Court
finds that the discrimination Sutton suffered did constitute a
However, although Sutton properly establishes a continuing violation,
the Court finds that Sutton cannot take advantage of the continuing
violations doctrine with respect to most of the ordinarily time-barred
conduct. As the Court noted above, the reasonableness of delaying a suit
forms the crux of the continuing violations doctrine. In the Seventh
Circuit, "there is no straightforward answer" to the question of how long
a reasonable person would wait before "[she] concluded that the silence
was in fact an implicit refusal to accommodate the request." Cox
Rumsfeld, 2003 U.S. Dist. LEXIS 14630 at *21 (W.D. Wisc. 2003). That
being said, the Court finds that waiting nine years is obviously
unreasonable. At some considerably earlier point during this time, a
reasonable person should have understood USPS' inaction as a clear signal
that it had no intention of reasonably accommodating Sutton.
Accordingly, with one hereafter stated exception, the Court GRANTS
SUMMARY JUDGMENT as to Sutton's claims regarding any conduct preceding
September 10, 2001.
The exception concerns Sutton's claim for back-pay for the period
following July 15, 2000, when OWCP cut off her disability benefits, and
USPS ordered her to report to Palatine, declaring her absence
undocumented leave and eventually placing her on unpaid medical leave.
These actions constitute discrete acts with their own 45-day statute of
limitations window. Sutton internally appealed this particular discrete
act, and continued to pursue administrative remedies until at least
October 5, 2001. Since federal employees may not file suit while pursuing
administrative remedies, Sutton's appeal tolled the statute of
limitations until well into the timely period. Rennie v. Garrett,
896 F.2d 1057, 1062 (7th Cir. 1990). However, as the Court noted above,
Sutton has no timely claim for full back pay during this window, as she
had not properly complained about USPS' failure to reasonably accommodate
her and return her to work. Therefore, although the Court believes that
Sutton's pursuit of administrative remedies tolled the statute of
limitations, it limits her permissible
damages to the disability benefits she lost between the July 15,
2000 benefits cut off and the September 10, 2001 commencing of the timely
B. Discrimination Claim
To establish a claim for disability discrimination under the
Rehabilitation Act, Sutton must demonstrate that: (1) she was disabled;
(2) her employer was aware of her disability? and (3) she was a qualified
individual who, with or without reasonable accommodation, could perform
the essential functions of her job. Basith v. Cook County, 241 F.3d 919,
927 (7th Cir. 2001). For purposes of summary judgment, USPS does not
contest the first two prongs of this test. Therefore, the Court need
examine only whether Sutton was a qualified individual who could perform
the essential functions of her job if provided with reasonable
To qualify for a reasonable accommodation, Sutton must first meet the
standard of being a "qualified individual." A "qualified individual" is
"an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C. § 12111(8).
Since "not working is not a means to perform the job's essential
functions," a total inability to work "means that one is not
`qualified.'" Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir.
2003). The determination concerning whether an individual is qualified
"must be made as of
the time of the employment decision." Nowak v. St. Rita High School,
142 F.3d 999, 1003 (7th Cir. 1998).
Sutton certainly met this minimum standard during most of the time she
spent off-work. Throughout 1992-1993, her doctors repeatedly requested her
transfer to a dust-free environment, requests which USPS basically
ignored. In doing so, Sutton's doctors represented that she could do
some work, albeit not necessarily the job currently assigned her. USPS'
failure to reasonably accommodate Sutton during this period probably
constituted disability discrimination, although time-barred for purposes
of this action.
However, at the time of her administrative separation Sutton no
longer represented herself as partially disabled, but rather as someone
who could not do any work. In doing so, Sutton ceased being a "qualified
individual." For example, Dr. May's October 11, 2000 letter to USPS
stated that Sutton was "unable to work until further notice" while his
March 5, 2001 letter described Sutton as "unable to work permanently" and
his September 24, 2001 letter detailed that she "remains unable to work
with headache & rhinoconjunctivitis that occur when exposed to dust and
fumes." Multiple times, Dr. May described Sutton's illness as a
"condition permanent since 7/12/00." Therefore, the evidence at
first-glance suggests that from July 12, 2000 onward, Sutton presented
herself as a person totally unable to work, and therefore totally unable
to fulfill the requirements of her job.
Although Sutton was not a "qualified individual" as of November 2001,
her status on July 15, 2000 is more questionable. As noted above, Dr. May
informed USPS several times that Sutton was permanently disabled since
July 12, 2000. However, as far as the Court can figure, Dr. May did not
first convey this opinion until March 5, 2001. Therefore, at the time
USPS declared Sutton absent with undocumented leave, and forced her on
unpaid medical leave, it seems possible if not likely that they had no
knowledge that Sutton possessed a "condition permanent since 7/12/2000"
that rendered her "unable to work." As noted above, the determination as
to whether an individual is qualified "must be made as of the time of the
employment decision." Nowak v. St. Rita High School, 142 F.3d 999, 1003
(7th Cir. 1998). Therefore, USPS cannot use Dr. May's post-March 5, 2001
opinions to justify its treatment of Sutton between July 2000 and March
Indeed, this is especially true because USPS claims it based its July
2000 decision on an opinion holding precisely the opposite the
OWCP ruling that Sutton was not disabled at all, and therefore able to
return to work at Palatine (as mentioned above, USPS now admits Sutton is
disabled). At that time, all medical opinions on file indicated that
Sutton could perform work within a dust-free area. Therefore, at the time
USPS placed Sutton on unpaid medical leave, she did constitute a
"qualified individual" under the Rehabilitation Act. This does not mean
Sutton remained a "qualified individual" until her termination. On March
when Dr. May first enunciated his opinion that Sutton had a permanent
condition preventing her from working at all, she ceased being a
qualified individual because she, through her doctor, had admitted a
total inability to perform the functions of her job regardless of
This means that Sutton can prove disability discrimination for, at
most, the period between July 15, 2000 and March 5, 2001, provided she
can establish USPS' fault for failure to provide her with reasonable
accommodation. In general, the burden of showing that a reasonable
accommodation exists rests with the employee. Mays v. Principi,
301 F.3d 866, 870-871 (7th Cir. 2002). However, once the employee informs
the employer of his or her disability, the employer must engage in an
"interactive process" with that employee, designed to "identify the
employee's precise limitations and discuss accommodation which might
enable the employee to continue working." Gile v. United Airlines, Inc.,
213 F.3d 365, 373 (7th Cir. 2000)(internal citations omitted). If the
employer fails to engage in this "interactive process," the burden of
production concerning the availability of a reasonable accommodation
shifts from the employee to the employer. Mays, 301 F.3d at 870. During
this process, the employer must make an offer of accommodation "with
sufficient clarity to make the accommodation available to her in a
practical sense, so that her rejecting it was her own fault." Id.
Here, USPS contends that it met its burden of engaging in the
interactive process and providing Sutton with reasonable accommodation by
its 1997 offer of a position as a central mark up clerk in the CFS unit
at Palatine, accommodated by the installation of an air cleaning unit. In
USPS' view, it did not need to reassign Sutton, as the reasonable
accommodation process requires only an acceptable offer, not "[providing]
literally everything the disabled employee requests." Schmidt v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 345 (7th Cir. 1996).
Post-installation of the clean air unit, USPS insisted that the Palatine
CFS position qualified as a reasonable accommodation, because its air
quality complied with the minimum standards set by the Occupational
Safety and Health Association ("OSHA"). Furthermore, USPS argues that
Sutton acted in bad faith by failing to provide justification for
refusing the CFS assignment and not repeating her transfer requests
originally made 1992-1993 during the 1997-2001 period.
Sutton responds by noting, that the CFS position was wholly inadequate
for accommodating her acknowledged disability, and therefore cannot meet
USPS' burden of providing "reasonable accommodation." She points out that
the clean air unit purchased had enough power to clean only 15,000 square
feet, while Palatine's CFS unit contained 169,920 square feet of open
space. For this reason, Sutton states that her doctors advised her not to
accept the position. Additionally, Sutton argues that USPS itself
acknowledged that position's inappropriateness, when it failed to
find the position "suitable" under their internal regulations.
The Court agrees with Sutton. Although USPS is correct that the
Rehabilitation Act does not obligate it to transfer Sutton, it must
nevertheless provide an accommodation suitable to Sutton's condition. By
any objective standards, the CFS position at Palatine did not meet this
threshold. While it is true that the Palatine position may have complied
with OSHA's minimum safety requirements, this is not mean that it
qualified as sufficiently clean for Sutton, due to her undisputed
hypersensitivity to dust and fumes. Indeed, the fact that USPS never
found the job offer "suitable," thereby permitting Sutton to remain on
disability, amounts to a near confession by USPS itself that the job
offer did not adequately accommodation Sutton's medical problems. This is
only compounded by USPS' original classification of the position as a
temporary, "limited duty" assignment, though it acknowledged that Sutton
required a permanent solution. Due to all this, the Court finds that no
reasonable jury could conclude that USPS' Palatine job offer qualified as
a "reasonable accommodation."
Therefore, post-Sutton's rejection of the Palatine job, USPS still
needed to engage in the interactive process, to properly inform Sutton of
her options for reasonable accommodation. USPS failed to do this.
Instead, USPS did nothing for three years, until OWCP declared Sutton no
longer disabled (although now USPS concedes that Sutton was disabled, for
purposes of summary
judgment). Then, USPS responded only by reoffering her the rejected,
unacceptable Palatine position then placing her on unpaid leave for
sixteen months under terminating her. Clearly, unpaid medical leave does
not meet USPS' burden of engaging in an interactive process, or providing
C. Retaliation Claim
Sutton has also filed a retaliatory discrimination charge against
USPS. 42 U.S.C. § 2000 prevents an employer or labor organization from
discriminating against someone because "he has opposed any practice made
an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000(e)(3)(a).
To overcome USPS' retaliation summary judgment motion, Sutton must
establish retaliatory treatment through either the "direct" or "indirect"
method. Stone v. City of Indianapolis, 281 F.3d 640, 644 (7th Cir.
2002). The direct method requires Sutton to "provide direct or
circumstantial evidence that the decisionmaker has acted for a prohibited
reason." Rogers v. City of Chicago, 320 F.3d 748, 754 (7th Cir.
2003)(italics in original). The indirect method demands Sutton establish
a prima facie case of retaliation by showing that "after filing the
charge only he, and not any similarly situated employee who did not file
a charge, was subjected to an adverse employment action even though he
performing the job in a satisfactory manner." Stone, 281 F.3d at 644.
Here, Sutton proceeds exclusively under the direct method. This
requires her to "provide direct or circumstantial evidence that the
decisionmaker has acted for a prohibited reason. A decision maker is the
person "responsible for the contested decision." Rogers, 320 F.3d at 754
(italics in original, internal citations ommitted). Under "circumstantial
evidence," the Court accepts three categories of evidence. Only one of
these pertains to this case: 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."
Venturelli v. ARC Cmty. Servs., 350 F.3d 592, 601 (7th Cir. 2003).
USPS then has an opportunity to contradict Sutton's evidence, and
present its own evidence that it would have "taken the adverse employment
action against [Sutton] even if he had no retaliatory motive." Stone, 281
F.3d at 644. If either Sutton's or USPS' evidence stands uncontradicted
by the other party, then summary judgment is appropriate. Otherwise, the
Court must find a triable issue of fact for the jury. Id.
To meet her "circumstantial evidence" burden, Sutton attempts to
establish by inference that decision maker Joe Kalisz ("Kalisz") knew of
her EEO complaint when he terminated her, and then lied in
deposition about knowing of it. Sutton asks the Court to draw this
inference by claiming that Kalisz probably learned of Sutton's complaint
by interacting with USPS Labor Relations official Colleen Kelly.
However, Sutton provides zero actual proof that Kelly told Kalisz of
Sutton's complaint. Sutton then references a memorandum sent to Kalisz,
dated after her termination, informing Kalisz of her EEO complaint
claiming that this shows Kalisz "lied" in deposition when he claimed to
have no knowledge of Sutton's complaint until shortly before his
The Court does not find Sutton's argument persuasive. Sutton's
requested inference does not even meet her burden of showing that Kalisz
knew of her EEO complaint, as it is very possible that Kelly never
informed him of it. Aside from this requested inference, Sutton has
nothing to substantiate Kalisz's knowledge of the complaint. While the
Seventh Circuit has loosened the circumstantial evidence requirements in
recent decisions, a decision maker must still affirmatively know of the
complaint before a plaintiff can even hope to establish discriminatory
intent. Durkin v. City of Chicago, 341 F.3d 606, 614 (7th Cir. 2003).
Since Sutton has not shown Kalisz's knowledge, she cannot show
discriminatory intent and therefore her retaliation claim cannot
withstand summary judgment.
Sutton tries to get around the knowledge requirement by stating that,
although Kalisz was the "final decision maker, he was not the only one."
However, by conceding that Kalisz was the
"final decision maker" (i.e., the only one with the actual power to
decide), Sutton concedes that for practical purposes Kalisz is the only
decision maker. The other individuals named may have advised Kalisz, but
it is undisputed that only Kalisz had the power to terminate Sutton, and
only Kalisz signed the decree terminating Sutton. Therefore, this
argument also fails.
Accordingly, Sutton's summary judgment motion is GRANTED solely with
respect to her claim that USPS discriminated against her by failing to
accommodate her disability between the period of July 15, 2000 and March
5, 2001. With respect to damages, even this successful claim is limited
to the disability benefits Sutton lost not her full salary. As to the
remainder of Sutton's claims, including the entirety of her retaliation
claim, Sutton's summary judgment motion is DENIED and USPS' is GRANTED.
Before concluding, the Court feels compelled to make note
unfortunately of the bureaucratic and ineffective conduct of the Postal
Service in this matter. First, it appears that the Postal Service slept
through nearly eight years of Sutton collecting disability at government
expense. Second, once awakened from its slumber, the Postal Service's
sole action was so woefully inadequate as to suggest a total lack of
effort on their part to comply with the statutory requirements of the
Rehabilitation Act. In so doing, the Postal Service has done a disservice
not only to Sutton, but also to the public at large. After all, it is
we, the Postal Service's customers, who ultimately financed both
extended disability "vacation," and the judgment that this opinion
requires the Postal Service to pay. The Court hopes that, in the future,
the Postal Service endeavors to become a better steward of the American
people's stamp dollars.
Since it does not appear that the damage calculations should be
disputed, the Court orders the parties to confer and agree on a damage
figure consistent with this opinion. If they cannot agree, the Court
directs the parties to submit their alternative proposals.
For the reasons stated herein, USPS' Motion for Summary Judgment is
GRANTED IN PART AND DENIED IN PART. Sutton's Motion for Summary Judgment
is, therefore, also GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
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